In a decision served September 15, 2015, in Agrium Inc. and Agrium U.S. Inc. v. Canadian Pacific Railway Company, NOR 42145, the Surface Transportation Board denied Canadian Pacific Railway Company’s motion to dismiss a complaint filed by Agrium Inc. and Agrium U.S. Inc., challenging certain defense, indemnity, and liability provisions in Canadian Pacific Tariff 8 governing hazardous materials. Canadian Pacific’s tariff seeks to shift the liability risks associated with accidental discharge of toxic by inhalation (TIH) hazardous material from the railroad to the shipper, even where the shipper has not been named or found to be potentially responsible.

Agrium, represented by Slover & Loftus LLP in the proceeding, alleges that Item 5 of the Tariff constitutes an unreasonable practice in violation of 49 U.S.C. § 10702(2). Canadian Pacific argued that the claim should be dismissed because it was not ripe for review by the Board. The Board’s decision rejected all of Canadian Pacific’s arguments and set a procedural schedule. A copy of the decision may be found at the following link:$file/44659.pdf

Questions on the STB’s decision or rail transportation issues generally may be directed to Peter A. Pfohl at Slover & Loftus LLP.