federal appellate practice


To effectively advocate the interests of our transportation clients, on occasion it becomes necessary to promote changes, expansions, restrictions, or modifications to existing law. This is most frequently done at the federal appeals court level, where national transportation policies are molded to appropriately resolve existing conflicts. We are proud to point out our success rate is extraordinary in arguing cases before the U.S. Circuit Courts of Appeals. We have recently persuaded a U.S. Court of Appeals to vacate an unfavorable ruling entered by the court below in seven different cases. Among our recent successes are the following precedential rulings:

In CSX Transportation v. Appalachian Railcar Services, 509 F.3d 384 (7th Cir. 2007) we were successful in convincing the U.S. Court of Appeals to restrict the voluntary payment doctrine, and exclude mistaken payments, thereby allowing our client to recover a derailment payment erroneously made to another party. The U.S. Court of Appeals ordered the unfavorable ruling of the District Court to be vacated, and remanded the case.

In Norfolk Southern Railway Co. v. Basell USA, Inc., 512 F.3d 86 (3d Cir. 2008), we were successful in convincing the U.S. Court of Appeals to expand the concept of a material breach of contract, allowing our client to recover full tariff rates instead of discounted contract rates for the movements of chemicals by rail. The U.S. Court of Appeals ordered the ruling of the District Court to be vacated, and following a remand, the U.S. District Court awarded our client over $3 million in damages.

In CSX Transportation v. Novolog Buck County, 502 F.3d 247 (3d Cir, 2007), cert. den., 128 S. Ct. 1240 (US 2008), we were successful in convincing the U.S. Court of Appeals to hold in a precedential ruling that consignees are liable for rail car demurrage charges, even though the consignee does not have a separate written agreement with the railroad. The U.S. Court of Appeals ordered the ruling of the District Court to be vacated, and remanded the case for further proceedings.

In Babcock & Wilcox Co. v. Norfolk Southern Railway Co., U.S. Court of Appeals for the 3d Circuit, No. 08-1080 (3d Cir., February 18,2009), we were successful in convincing the U.S. Court of Appeals to hold in a precedential ruling that a rail contract with confidential rates and routes qualified as a private contract under 49 U.S.C. § 10709, rendering all statutory remedies available under Title 49 to be inapplicable to the freight movements under the contract. The U.S. Court of Appeals ordered the ruling of the District Court vacated, and remanded the case to be dismissed.

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