Wisconsin Central Limited v. Tienergy, LLC

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-2343
WISCONSIN CENTRAL LIMITED,
Plaintiff-Appellee,
v.
TIENERGY, LLC,
Defendant / Third Party
Plaintiff-Appellant,
v.
ALLIED TRACK SERVICES, INC.,
Third Party
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-cv-02489 — Amy J. St. Eve, Judge.
ARGUED JANUARY 11, 2018 — DECIDED JULY 3, 2018
2 No. 17-2343
Before EASTERBROOK and BARRETT, Circuit Judges, and
STADTMUELLER, District Judge.*
BARRETT, Circuit Judge. Demurrage is a charge that rail
carriers are statutorily required to impose when rail cars are
detained beyond the time the tariff allows for loading or un-
loading. It serves two functions: it secures the rail carrier
compensation for the use of the car, and it serves the public’s
interest in making the cars available to transport other prop-
erty. The sooner a car is back in service, the sooner it is
available to move the property of others.
This case involves demurrage that accrued when rail cars
belonging to Wisconsin Central were detained at TiEnergy’s
facility after delivering a load of railroad ties. Wisconsin
Central sued TiEnergy to recover the charges, asserting that
TiEnergy was liable for them as consignee of the goods.
TiEnergy argued that it had not agreed to be the consignee;
it maintained that Allied, the company that shipped the ties,
should foot the bill. The district court held TiEnergy respon-
sible, and we affirm its judgment.
I.
Allied Track Services, Inc. entered into two agreements to
facilitate the shipment of approximately 100,000 railroad ties.
It contracted with Wisconsin Central Limited’s parent com-
pany, Canadian National Railway, to have Wisconsin Cen-
tral ship the ties to TiEnergy, LLC’s facility in Wisconsin.
That contract incorporated CN Tariff 9000, which provided
that demurrage would begin to accrue on the cars after two
days of unloading time. Wisconsin Central also entered into
* Of the Eastern District of Wisconsin, sitting by designation.
No. 17-2343 3
an oral agreement with TiEnergy, which is in the
business of processing and disposing of used railroad ties.
TiEnergy agreed to receive the ties at its Wisconsin facility,
where it would grind them. It would then sell the ties to Xcel
Energy, which would burn them to generate power. When
the pro- cess was complete, TiEnergy would provide Allied
with proof that the ties had been incinerated in an
environmental- ly safe manner.
Allied listed TiEnergy as the consignee of the railroad
ties on all relevant bills of lading, and the ties were shipped
to TiEnergy’s Wisconsin facility. After receiving the ties,
TiEnergy went forward with its plan: it unloaded, ground,
and sold them to Xcel Energy. The approximately 100 rail
cars used to ship the ties, however, remained on the track
and sidetrack beyond the two-day unloading period permit-
ted by the tariff. Daily demurrage charges started to accrue
on each car.
Canadian National began billing TiEnergy for the de-
murrage. When it received the invoices, TiEnergy contacted
both Canadian National and Allied to object. TiEnergy said
that it had not agreed to be identified as the consignee on the
bills of lading and that it thus could not be held responsible
for demurrage. In the meantime, the cars remained on
TiEnergy’s track, and the demurrage charges continued to
climb.
Wisconsin Central sued TiEnergy, seeking to recover ap-
proximately $100,000 in demurrage. TiEnergy filed a third-
party complaint against Allied seeking indemnification or
contribution. A flurry of motions followed the close of dis-
covery: Wisconsin Central filed a motion for summary
judgment against TiEnergy, TiEnergy filed a cross-motion
4 No. 17-2343
for summary judgment against Wisconsin Central, and Al-
lied filed a motion for summary judgment against TiEnergy.
In its opinion, the district court granted the motions filed by
Wisconsin Central and Allied; it denied the one filed by
TiEnergy. TiEnergy appeals the district court’s grants of
summary judgment in favor of Wisconsin Central and Al-
lied.1
II.
Before we turn to the merits, we have two jurisdictional
matters to address. The first concerns appellate jurisdiction.
TiEnergy invoked our jurisdiction under 28 U.S.C. § 1291,
which gives us “jurisdiction of appeals from all final deci-
sions of the district courts of the United States.” To make the
entry of final judgment clear, Federal Rule of Civil Proce-
dure 58(a) provides that “[e]very judgment and amended
judgment must be set out in a separate document.” While
the district court docketed a Rule 58 judgment order reflect-
ing its final disposition of the claims brought by Wisconsin
Central against TiEnergy, it did not do so for the third-party
claim that TiEnergy asserted against Allied. Because a judg-
1 One of TiEnergy’s complaints on appeal is that the district court
improperly considered facts submitted by Wisconsin Central in violation
of Northern District of Illinois Local Rule 56.1, which governs the proce-
dures that parties must follow in making and opposing summary judg-
ment motions. If the district court had not considered these facts,
TiEnergy says, it would have been entitled to summary judgment. We
review a district court’s decisions regarding litigants’ compliance with
local rules for abuse of discretion, see Raymond v. Ameritech Corp., 442
F.3d 600, 604 (7th Cir. 2006), and we find no abuse in the district court’s
conclusion that Wisconsin Central’s response to TiEnergy’s Local Rule
56.1(b)(3)(C) statement was properly filed. Wisconsin Central, Ltd. v.
TiEnergy, LLC, No. 15 C 2489, 2017 WL 1427065 (N.D. Ill. Apr. 21, 2017).
No. 17-2343 5
ment is not final for purposes of § 1291 until it disposes
of all claims in the suit, General Insurance Co. of America v.
Clark Mall Corp., 644 F.3d 375, 379 (7th Cir. 2011), the absence
of the Rule 58 judgment order disposing of TiEnergy’s third-
party claim creates some uncertainty about our appellate ju-
risdiction.
We asked the parties to address this issue in supple-
mental briefing. They contend—and we agree—that alt-
hough the district court failed to issue a separate judgment
disposing of all the claims, it clearly signaled in its opinion
that it was finished with the case. Rule 58’s “separate docu-
ment” requirement is important because it keeps jurisdic-
tional lines clear. We have said, however, that a district
court’s failure to comply with the formal requirement is not
fatal to our jurisdiction if the district court has otherwise in-
dicated its intent to finally dispose of all claims. Borrero v.
City of Chicago, 456 F.3d 698, 699–700 (7th Cir. 2006). The dis-
trict court did so here. See Wisconsin Cent., Ltd. v. TiEnergy,
LLC, No. 15 C 2489, 2017 WL 1427065 (N.D. Ill. Apr. 21,
2017).
The second matter—and one on which we also ordered
supplemental briefing—concerns original jurisdiction. Be-
cause this case focuses on the bill of lading, which is the
shipping contract between the parties, it sounds like a
breach-of-contract claim. But if this case is simply a contract
dispute, we probably lack jurisdiction over it. Contract
claims arise under state law, so they typically require diver-
sity jurisdiction, and both Wisconsin Central and TiEnergy
are citizens of Illinois. 28 U.S.C. § 1332; see also Strawbridge v.
Curtiss, 7 U.S. 267 (1806) (holding that the diversity statute
requires that the citizenship of all plaintiffs be different from
6 No. 17-2343
the citizenship of all defendants). In an exceptional
circum- stance, the presence of a federal issue can transform
a state- law claim into one that arises under federal law. See
Grable & Sons Metal Products, Inc. v. Darue Engineering &
Manufactur- ing, 545 U.S. 308 (2005) (holding that a state
cause of action arises under federal law if, among other
things, it requires resolution of a substantial and contested
federal issue). There might be an argument for that here, but
Wisconsin Central has not made it.2
Rather than asserting a contract claim that nonetheless
arises under federal law, Wisconsin Central’s complaint
sought to recover demurrage pursuant to a provision of the
Interstate Commerce Commission Termination Act that as-
signs liability for the payment of transportation rates. 49
U.S.C. § 10743. Demurrage charges have long been
treated as “rates for transportation” under that provision, see
CSX Transportation Co. v. Novolog Bucks County, 502 F.3d 247,
256–
2 This case involves the Interstate Commerce Commission Termina-
tion Act, which succeeded the Interstate Commerce Act. When the Inter-
state Commerce Act was in effect, the Supreme Court held that an action
to collect shipping charges, which was an action for breach of contract,
presented a federal question arising under it. Thurston Motor Lines, Inc. v.
Jordan K. Rand, Ltd., 460 U.S. 533, 534 (1983); Louisville & Nashville R.R. Co.
v. Rice, 247 U.S. 201 (1918); see also Kansas City Terminal Ry. Co. v. Jordan
Mfg. Co., 750 F.2d 551 (7th Cir. 1984). We applied this reasoning to a suit
seeking the collection of demurrage charges under that statute. Atchison,
T. & S.F. Ry. Co. v. Springer, 172 F.2d 346 (7th Cir. 1949). Neither Wiscon-
sin Central’s complaint nor its supplemental brief frames its claim as a
state contract claim that presents a substantial and contested issue of
federal law under the Interstate Commerce Commission Termination
Act. Thus, we need not confront the question whether a claim for failure
to pay demurrage fees required by the shipping contract arises under the
statute currently in force.
No. 17-2343 7
57 (3rd Cir. 2007) (interpreting and recounting the history of
the phrase), and consignees are presumptively liable for it.
Section 10743(c) grants rail carriers a cause of action to en-
force that liability, and Wisconsin Central has invoked that
grant here. A cause of action arises under the law that creat-
ed it, American Well Works Co. v. Layne & Bowler Co., 241 U.S.
257, 260 (1916), which means that this case arises under fed-
eral law. Jurisdiction exists pursuant to 28 U.S.C. § 1337(a),
which grants jurisdiction over “any civil action or proceed-
ing arising under any Act of Congress regulating com-
merce.”
In its supplemental brief, TiEnergy contends that
§ 1337(a) carries an amount-in-controversy requirement that
deprives us of jurisdiction. That provision limits federal ju-
risdiction over cases filed under 49 U.S.C. § 11706 or 49
U.S.C. § 14706 when the “matter in controversy for each re-
ceipt or bill of lading exceeds $10,000.” TiEnergy says that
this limit applies, because the demurrage charges sought by
Wisconsin Central include numerous invoices for less than
$10,000.
This argument is frivolous. Section 1337(a)’s amount-in-
controversy limitation is plainly applicable only to cases
filed under 49 U.S.C. § 11706 or 49 U.S.C. § 14706, and Wis-
consin Central brought this action pursuant to 49 U.S.C.
§ 10743. Moreover, the causes of action that § 1337 limits—
those brought under § 11706 or § 14706—involve actions
brought against, not by rail carriers. This suit presents a fed-
eral question over which we have jurisdiction, and nothing
in § 1337(a) changes that.
8 No. 17-2343
III.
Section 10743 codifies the common-law rule that the con-
signee of freight is presumptively liable for demurrage ac-
crued at the destination. Illinois Cent. R.R. Co. v. South Tec
Dev. Warehouse, Inc., 337 F.3d 813, 820 (7th Cir. 2003) (ex-
plaining that in the absence of a contract providing other-
wise, only a consignee is liable for demurrage). Given this
presumption, the parties agree that TiEnergy’s liability for
demurrage turns on whether it is a “consignee” for purposes
of § 10743. The tricky thing is that being a consignee under
10743 requires more than mere custody of the freight. Cf.
BLACK’S LAW DICTIONARY (9th ed. 2009) (defining “consign-
ee” to mean “[o]ne to whom goods are consigned” and
“consign” to mean “transfer to another’s custody or
charge”). We consider other factors as well: whether the par-
ty agreed by contract to consignee status, whether the party
was designated as consignee in the bill of lading, and the na-
ture of the party’s relationship to the freight. South Tec, 337
F.3d at 820–22.
In denying that it was the consignee of the railroad ties,
TiEnergy emphasizes that it neither agreed to nor knew
about its designation as consignee on the bill of lading. That
is its best fact, because being unilaterally designated as the
consignee on the bill of lading is not enough to render a re-
cipient of freight liable for demurrage. South Tec, 337 F.3d at
821.3 At the same time, this fact does not get TiEnergy off the
3 There is a circuit split on this question. The Third Circuit has held
that a recipient named as consignee in the bill of lading is liable for de-
murrage regardless of whether it agreed to be designated as consignee.
CSX Transp. Co. v. Novolog Bucks Cty., 502 F.3d 247 (3rd Cir. 2007). The
Eleventh Circuit, in contrast, has said that unilateral designation as con-
No. 17-2343 9
hook, because even a unilaterally designated party can be
liable for demurrage when other factors are present reflect-
ing an interest in or control of the goods. Id. This test is de-
signed to separate intermediaries like warehouses and trans-
loaders from recipients who have a legal or beneficial own-
ership interest in the freight. Those who merely handle the
freight are not consignees; those with a relationship to it
have that status.
signee on a bill of lading is not enough to confer consignee status; a re-
cipient of the freight is not liable for demurrage unless it consented to or
at least had notice of the designation. Norfolk S. Ry. Co. v. Groves, 586 F.3d
1273, 1282 (11th Cir. 2009). We have not squarely addressed the issue,
but the position we have expressed in dicta is closer to the Eleventh Cir-
cuit’s than the Third Circuit’s. See South Tec, 337 F.3d at 820–21. Because
of this split in authority, the Surface Transportation Board has promul-
gated the following regulation governing demurrage liability:
Any person receiving rail cars from a carrier for loading or un-
loading who detains the cars beyond the period of free time set
forth in the governing demurrage tariff may be held liable for
demurrage if the carrier has provided that person with actual
notice of the demurrage tariff providing for such liability prior to
the placement of the rail cars.
49 C.F.R. § 1333.3. In the course of its rulemaking proceedings, the Board
concluded that demurrage is not part of the “rates for transportation”
governed by § 10743. Demurrage Liability, Final Rule, 2014 WL 1399404(April 9, 2014) (asserting that “49 U.S.C. § 10743 … appl[ies] to carriers’
line-haul rates, but not to demurrage charges.”). The new rule does not
apply here, because it took effect on July 15, 2014, and the demurrage on
Wisconsin Central’s cars accrued in November 2013. And the parties
have not asked us to overrule our precedent treating demurrage as part
of the “rates for transportation” under § 10743. See South Tec, 337 F.3d at
817. Thus, we do not address either the rule or the soundness of the
Board’s interpretation of the statute.
10 No. 17-2343
TiEnergy denies that it had any interest in or control of
the railroad ties delivered by the detained railcars. Accord-
ing to TiEnergy, it was an intermediary like a warehouse or
transloader. It received ties belonging to Allied and—acting
solely on Allied’s behalf—forwarded them to Xcel for incin-
eration. Like other intermediaries relieved of liability for
demurrage, TiEnergy says that it acted merely as an agent
with no interest of its own in the goods.
Classifying TiEnergy as an intermediary jams a square
peg into a round hole. To begin with, TiEnergy is not in the
freight-transfer or cargo-storage business. It is in the busi-
ness of processing and disposing of used railroad ties. That
distinguishes TiEnergy from the entities that present the
hard cases for demurrage liability—warehousemen, pier op-
erators, transloaders, and connecting carriers. See CSX
Transp. Co. v. Novalog Bucks Cty., 502 F.3d 247, 250 (3d Cir.
2007). Unlike these entities, TiEnergy is not an intermediary
indifferent to freight that it stores or transfers from one
mode of transportation to the next. It agrees to take railroad
ties so that it can use them—as it did when the ties from Al-
lied arrived at its facility. TiEnergy ground the ties, thereby
exhibiting its control of them. And it sold the ties to Xcel,
thereby demonstrating that it enjoyed their benefit. TiEner-
gy’s claim that it functioned solely as Allied’s agent in sell-
ing the ties to Xcel Energy for incineration is belied by the
fact that it kept the full payment for itself.4
4 The claim that TiEnergy functioned as Allied’s agent is also belied
by the fact that Allied offered to help TiEnergy move the cars off the
track, but was unable to do so because TiEnergy did not authorize it.
No. 17-2343 11
The only conclusion a juror could reasonably draw from
these undisputed facts is that TiEnergy had both control of
and an interest in the ties. And under South Tec, that means
that it had consignee status. 337 F.3d at 820–22. Consignees
are liable for demurrage; thus, TiEnergy owes Wisconsin
Central the fees accrued for the detained rail cars.5
It is worth noting that if TiEnergy had been a consignee
functioning only as Allied’s agent, the statute offered it a
way out of liability for transportation rates. Under
§ 10743(a)(1), a “consignee that is an agent only, not having
beneficial title to the property” has an option that other con-
signees do not: it can give the carrier written notice that it
lacks beneficial title and the name and address of the person
who does. If the agent takes that step, it escapes liability for
“additional rates that may be found to be due after deliv-
ery.” § 10743(a)(1). Demurrage accrues after delivery, so an
agent-consignee who invokes this exception does not have to
pay it. TiEnergy, however, did not invoke this exception. It
thus remains subject to the default rule that consignees must
pay when rail cars delivering shipments are detained longer
than the time the tariff allows.
IV.
TiEnergy insists that if it is found liable for the demur-
rage charges, it is entitled to either indemnification or con-
5 TiEnergy argued in the district court that weather conditions pre-
vented it from releasing the cars. The district court treated that argument
as waived “because TiEnergy did not develop this argument or support
it with any legal authority.” TiEnergy’s one-sentence assertion that “this
finding was directly contrary to the record” is not reason for us to dis-
turb the district court’s finding.
12 No. 17-2343
tribution from Allied. Indemnification shifts the entire loss
to the other party, while contribution distributes it among
multiple parties. Both remedies look to fault when distrib-
uting loss. See Schulson v. D’Ancona & Pflaum LLC, 821
N.E.2d 643, 647 (Ill. App. Ct. 2004).6
TiEnergy concedes that no written contract obligated Al-
lied to indemnify it for any demurrage liability it incurred.
(In fact, the parties had no written contract memorializing
any of the details of their agreement.) Because it nonetheless
asserts that Allied breached its agreement to assume respon-
sibility for demurrage, it is presumably claiming that Allied
and TiEnergy entered an oral contract regarding indemnity.
It points to no evidence, however, supporting this assertion.
TiEnergy’s breach-of-contract claim therefore fails.
TiEnergy also argues that Allied must indemnify it be-
cause of an alleged agency relationship between the two.
This argument fails for several reasons, but we can stop with
this basic point: TiEnergy was not Allied’s agent. A hallmark
of the principal/agent relationship is the principal’s right to
control the conduct of the agent. See Wilson v. Edward Hosp.,
981 N.E.2d 971, 978 (Ill. 2012). It is undisputed that Allied
exercised no control over the manner in which TiEnergy
disposed of the ties; nor, as we have already said, did
TiEnergy sell them to Xcel on Allied’s behalf.
TiEnergy’s claim for contribution in tort fares no better.
This argument relies on the Illinois Joint Tortfeasor Contri-
bution Act, 740 ILCS 100/2, which—as its name suggests—
6 The parties do not explicitly address the choice-of-law issue, but
they both assume that Illinois law applies to the indemnification and
contribution claims.
No. 17-2343 13
permits one joint tortfeasor to seek contribution from anoth-
er. Yet TiEnergy has not even tried to make the case that
Wisconsin Central’s claim for demurrage sounds in tort. Cf.
Guerino v. Depot Place P’ship, 730 N.E.2d 1094, 1099 (Ill. 2000)
(holding that there is no claim under the Act when liability is
predicated on a contract). Moreover, as the district court ob-
served, Allied is not liable to Wisconsin Central for the de-
murrage; so even if this is a tort, there is no joint tortfeasor
from whom to collect. The Act is wholly inapplicable.
***
The district court correctly held that TiEnergy must pay
Wisconsin Central the demurrage fees. Its judgment is
AFFIRMED.