Wisconsin Electric Power Co. v. Union Pacific Railroad Co.

557 F.3d 504 (2009)

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Nature of the Case

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Facts

A provision in Article XI of the contract between P and D, specifies contingencies that would excuse performance, including certain 'acts of God.' But the provision at issue merely provides that if the railroad is prevented by 'an event of Force Majeure' from reloading its empty cars (after it has delivered coal to WEPCO) with iron ore destined for Geneva, Utah, it can charge the higher rate that the contract makes applicable to shipments that do not involve backhauling. The steel company in Geneva went out of business. A couple of months after that final closing the railroad wrote P to declare 'an event of Force Majeure' and that henceforth it would be charging P the higher rate applicable to shipments without a backhaul. It did not attempt to make the rate change retroactive. P sued D. The court issued a summary judgment and P appealed.