Petition for Writ of Certiorari — Supreme Beef Processors, Inc. v. Yaquinto

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FILED

MAY 30 1989

OSEP HEAP ANIOL, JR,

CLERK

In Che

Supreme Court of the United States

ne , oo

@ctober Cerm, 1988

aw , on

SUPREME BEEF PROCESSORS, INC.,

Vv. Petitioner,

ROBERT YAQUINTO, JR.,

TRUSTEE FOR CARAVAN REFRIGERATED CARGO, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

a , Sn

— AND APPENDICES —

JOHN W. BRYANT

Counsel of Record

NEILL T. RIDDELL

EAMES, WILCOX, MASTE) AND BRYANT

900 Guardian Building

Detroit, Michigan 48226

Telephone: (313) 963-3750

May 30, 1989 Counsel for Petitioner

Interstate Brief & Record Company, a division of North American Graphics, Inc.

1629 West Lafayette Boulevard, Detroit, MI 48216 (313) 962-6230

QUESTIONS PRESENTED

WHETHER THE INTERSTATE COMMERCE COMMISSION,

IN EXERCISING ITS PRIMARY JURISDICTION UNDER 49

USC § 10701(a) OVER THE LAWFULNESS OF MOTOR

COMMON CARRIER PRACTICES IN ACCORDANCE WITH

REGULATORY CHANGES AFTER THE MOTOR CARRIER

ACT OF 1980, MAY DETERMINE THAT IT IS AN UN-

REASONABLE PRACTICE FOR A CARRIER TO (1) FALSELY

REPRESENT TO A SHIPPER ON A CONTINUING BASIS

THAT SPECIFIC RATES ARE LEGALLY EFFECTIVE, (2) ISSUE

BILLINGS AND ACCEPT PAYMENTS BASED UPON SUCH

REPRESENTATIONS, AND (3), AFTER CEASING OPER-

ATIONS, SEEK TO COLLECT HIGHER CHARGES BASED

UPON THE CARRIER’S OWN FAILURE TO FILE THE

ORIGINALLY QUOTED RATES WITH THE COMMISSION.

II.

WHETHER A SHIPPER WHICH RAISES THE DEFENSE OF

UNREASONABLE PRACTICES IN A MOTOR CARRIER

ACTION TO COLLECT FREIGHT CHARGES IS REQUIRED

TO PAY THE CHARGES TO THE CARRIER PRIOR TO

CONSIDERATION OF ITS DEFENSE BY THE INTERSTATE

COMMERCE COMMISSION.

II.

WHETHER THE STATUTORILY PROTECTED PUBLIC IN-

TEREST IN SECURING LOWER RATE SCHEDULES FOR

GOVERNMENT TRANSPORTATION REQUIRES ALLOW-

ANCE OF A DELAYED ASSERTION OF THAT INTEREST

IN PROCEEDINGS BEFORE UNITED STATES DISTRICT

COURTS.

LIST OF PARTIES

The caption of the case in this Court contains the

names of all parties in the proceeding before the United

States Court of Appeals for the Fifth Circuit. Petitioner

has no parent companies, subsidiaries (other than

wholly owned subsidiaries) or affiliates.

ili

TABLE OF CONTENTS

PAGE NO.

RPO EOD FREON ERD 2. occ e cece ness i

I ee ee il

pro 8 ae. ty 5 | v

gE 6 ra l

ae 2

pe gy Oy 8 8): > ra 2

STATEMENT OF THE CASE .................. 3

REASONS FOR GRANTING THE WRIT ....... 8

I. THE ICC HAS DISCRETION TO DETERMINE

THAT THE CARRIER CONDUCT ALLEGED IN

THIS CASE CONSTITUTES AN UNREASON-

ABLE PRACTICE PROHIBITED BY 49 USC

a ae i a ye ae 10

Il. A SHIPPER WHICH RAISES THE DEFENSE OF

UNREASONABLE PRACTICES IN A MOTOR

CARRIER ACTION TO COLLECT FREIGHT

CHARGES IS NOT REQUIRED TO PAY THE

CHARGES TO THE CARRIER PRIOR TO CON-

SIDERATION OF ITS DEFENSE BY THE ICC. 19

Ill. THE IMPORTANT FEDERAL INTEREST IN

SECURING LOWER RATE SCHEDULES FOR

GOVERNMENT TRAFFIC REQUIRES COURTS

TO ACCEPT DELAYED ASSERTION OF SUCH

INTERESTS IN COURT PROCEEDINGS. ... 22

i iat head ais cece ee seenedess 24

APPENDICES:

Appendix A — ORDER DENYING REHEARING —-

United States Court of Appeals for

the Fifth Circuit [March 1, 1989] .. A-1

PAGE NO.

Appendix B — OPINION — United States Court of

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

Appendix H

Appeals for the Fifth Circuit

[Fepruary 2, 1969) .. os cc beens. B-1

ORDER DENYING RECONSIDER-

ATION —- United States District

Court, Northern District of Texas,

Dallas Division |March 4, 1988] .. C-1

MEMORANDUM OPINION AND

ORDER — United States District

Court, Northern District of Texas,

Dallas Division [January 20, 1988] D-1

MEMORANDUM OPINION AND

ORDER — United States District

Court, Northern District of Texas,

Dallas Division [November 13,

EO ied woe neh aes oR E-]

ORDER DENYING TRANSFER TO

ICC — United States Bankruptcy

Court, Northern District of Texas,

Dallas Division |July 11,1987] ... F-1

LIST OF CASES’ Confirming

Authority of ICC to Determine

Issues of Unreasonableness of Motor

Carrier Practices Involving Mis-

representation of Rates ......... G-1l

LIST OF CASES Denying Authority

of ICC over Unreasonable Practice

Issues Involving Misrepresentation

OE. Beda odes ieee aes es H-]

TABLE OF AUTHORITIES

PAGE NOJs].

COURT CASES:

Adams v. Mills, 286 U.S. 397 (1932) ........... 12

American Trucking Association v. Atchison T. &

SE Ry Ge, dor UB. Oer Cy eck oven es 17

Arizona Grocery Co. v. Atchison T. & S.E Ry. Co.,

See Nie Ore eed es oe he Oo ee eee 14

Baggett Transportation Co. v. United States, 670

Pan Seek Cte A SE soe pea ne ee 23

Bud Antle, Inc. v. United States, 593 F2d 865

Pen Cae OT ae eee 12

Burlington Northern v. U.S., 459 U.S. 131 (1982) 21, 22

Chevron U.S.A., Inc. v. Natural Resource Defense

Council, 467 US. 837 tI9B@) «oss ewes 17

Cleveland Cliffs Iron Co. v. ICC, 664 F2d 568

6th Cis. 9988} 3. aia staked eee 15

Great Northern R. Co. v. Merchants Elevator Co.,

259 UES. BES UIE on kk hee 20

Hewitt-Robins, Inc. v. Eastern Freightways, Inc.,

STE Te OG ea a caren seeeeee 12

INF Ltd. v. Spectro Alloys Corp., 690 FE. Supp. 808

A TF 5 eh Gees cia Grae 13

In Re Penn Central Transportatiun Co., 477 F2d

OBS (RNG Ge PPT es oe ea eee 21

Interstate Commerce Commission v. Illinois

Central Railroad Co., 215 U.S. 452 (1910) .... =

jetca, Inc. v. U.S. 11 Cl. Ce. BSF CSF) . 3... 7, 23

PAGE NOJs}.

Keller Industries, Inc. v. U.S., 449 F2d 163 (9th

Che TIF eisiidles cc ee lke cedesa eek 20

Keogh v. Chicago & Northwestern R. Co., 260

RRS TB LIPO oie os hewn SUR Oe Sah ew eke es 18

Louisville & Nashville Ry. v. Maxwell, 237 U.S.

i er re errr intr sig err yor 13

McCrea v. Harris County Houston Ship Channel

Nav. Dist., 423 F2d 605 (5th Cir. 1970) ...... 24

Middlewest Motor Freight Bureau v. U.S., 433

yp Pie g Es So, ere rere ee 14

Seaboard System R.R. v. United States, 794 F2d

635 (rie Coe TORS sec k ce ceacees 7, 9, 11, 17, 20

Southern Pacific Transp. Co. v. City of San

Antonio, 748 F2d 266 (5th Cir. 1984) ... 7 21, 22

Square D Co. v&Niagara Frontier Tariff Bureau,

476 US. 409 \sxa\ Pe re re Nae 18, 19

United States v. Western Pacific Railroad, 352

US. SO 1GGR. cccs le Ree eee 9, 20, 22

Western Transportation Co. v. Wilson & Co., 682

Fae 1327 (7a Coe S068) i isan cees 9 16, 20, 24

INTERSTATE COMMERCE COMMISSION DECISIONS:

Albers Bros Milling Co. v. Great Northern Ry.

Cu, SG Oe Oe Te ko hace ees 12

Annual Volume Rates on Coal — Flint Creek,

AR, 364 ICC 753 (1981), affd. sub nom Bur-

lington Northern, Inc. v. United States, 679

Pas SES TER. Re SR ok vee ates ees 15

Armour & Co. v. Northern Pacific Ry. Co., 209

some ty al | reer ea ere ee ee 16

Vill

PAGE NO|s].

Bradford Coal Co. v. Baltimore & O. R. Co., 305

Weta, RET shee es oe ee 21

Bushman Dock & Term. v. Chesapeake & O. Ry.

CAh, Geek Maes SD LEDOO) kc ak Seba ned eee 20

Carson Iron & Steel Co. v. Atlantic & N.C. R.

Ce, Ber Gers FTE ok ok i xs ako 16

C. A. Wagner Construction Co. v. Chicago &

N. W. Ry. Co., 208 ICC 767 (1935) .......... 16

Coal Colstrip, Kuehn and Decker, MT, To Superior

WV, Ge Ws BE FAP 6 hvu ae anSeca sewers 15

Ex Parte No. MC-177, National Industrial Trans-

portation League — Petition To Initiate Rule

making on Negotiated Motor Common Carrier

PES ev ee ak 4,5, 8, 10, 12, 14, 16, 20

Ex Parte No. 358-F Change of Policy, Rail Road

Contract Rates, 45 Fed. Reg. 21719 (April 2,

1980, reported in Cleveland Cliffs Iron Co. v.

ICC, 644 F2d 568 (6th Cir. 1981) ........... 15

Foremost Food & Chemical Co. v. Alton & S.R.,

Pe Se Eo 0 ea ee are cae 21

Hawkins & Son v. Director General, 80 ICC 255

SEE ih nca wae ek eR ee ee 12

Ideal Cement Co. v. Atchison, T. & S.FE, 280 ICC

ERT es aoa ee ee eee is 15

Increased Freight Rates, E. W. & S Territories,

FSO, SH A GSS (IGS) jw cw vi ccc nwkun 24

Interoceanic Commodities Corp. v. Chicago

G. WW. Ry. Co., 309 ICC 710 (1960) .......... 20

Interpretation of Govt. Rate Tariff — Eastern

Central, 323 ICC 347 (1964) .... 2.0... cess 23

Viil

PAGE NOJs].

In the Matter of Released Rates, 13 ICC 550

I he gk tse eee eee ee

Iowa Beef Processors, Inc. v. Western Transporta-

tion, ICC Docket No. 37521 (not printed; Sep-

I RE a ce Gs we ee eee eee ae

Lawson Concrete Co. v. C. & N.W. Transp. Co.,

ee a NS bode be eink PRE KN ee

National Wool Growers Association v. Union

Pactic R. Ca. @ ROC 55 (1918) .............

New England Box Co. v. Boston & M.R., 305

ee EE 0 a ck kek ceed hee cae ee

Piedmont Mills, Inc. v. Norfolk & W. R. Co., 296

es I EE re ie ees See ee ube

Postal Telegraph Cable Co. v. W. U. Telegraph

Ca ee as SOE: a aks See Kade Dewees

Sheboygan Fruit Box Co. v. Chicago & N. W. Ry.

Cah ee Se CED csc ek ke whee oo 5

Standard Brands, Inc. v. Central R. Co. of N.J.,

as Ne RE iach cM ace ho nin eee OS

Stopping Of Cars in Transit to Complete Load-

ee Be is SO EEE a cake ce ceewues es

Sutherland Paper Co. v. Ann Arbor R. Co., 215

Se ee en sean ae

Thermofil, Inc. v. Jones Transfer Co., 355 ICC

gg. SSO RO rg 5 ce pre ane ay eee” paneer

Unit Train Rates — Coal — Burlington North-

ern, Inc., 364 ICC 186 (1980}, affd. sub nom

Iowa Power and Light Co. v. Burlington North-

ern, Inc., 647 F2d 796 (8th Cir. 1981) .......

PAGE NOJs].

STATUTORY PROVISIONS

AND OTHER AUTHORITIES:

oo | 2

MT ee ooo ck ve onan eee 3

se 3

49 USC § 10701(a) ......... 1, 2, 6, 8, 10, 1, 12, 20

USC 6 WOTRIIANT) .. 2... oe... 6, 22, 24

Oe Be ik i 7, 14, 16, 17

ee hie ie cL ea ee 3

Senate Report No. 410, U.S. Code Cong. and

Admin. News, 85th Congress, First Session

Pe PME 6h Kk he De he honk 24

In Che

Supreme Court of the United States

ee ee

October Cerm, 1988

—)>———

SUPREME BEEF PROCESSORS, INC.,

Vv. Petitioner,

ROBERT YAQUINTO, JR.,

TRUSTEE FOR CARAVAN REFRIGERATED CARGO, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner respectfully prays that a Writ of Certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit in

this case affirming a grant of summary judgment in

Respondent’s action to collect motor carrier freight

charges from Petitioner and denying Petitioner’s reque: t

that the case be referred to the Interstate Commerce

Commission for a determination of whether collection

of such charges would constitute an unreasonable prac-

tice prohibited by 49 USC § 10701 (a).

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 864 F2d 388 and is

reprinted as Appendix B.

The Memorandum Opinion and Order of the United

States District Court for the Northern District of

Texas (Buchmeyer, D.J.) granting summary judgment for

Respondent has not been reported and is reprinted as

Appendix D. Also unreported and attached as appen-

dices are the District Court’s subsequent Order

Denying Reconsideration of summary judgment |Appen-

dix C), its prior Memorandum Opinion and Order

Denying Petitioner’s motion for referral to the Inter-

state Commerce Commission (Appendix E), and an

Order of the United States Bankruptcy Court for the

Northern District of Texas (McGuire, B.J.) denying

Petitioner’s Motion to Transfer proceedings to the Inter-

state Commerce Commission. (Appendix F).

JURISDICTION

The opinion and judgment of the Fifth Circuit was

entered on February 2, 1989. A timely petition for re-

hearing was denied on March 1, 1989. (Appendix A).

The jurisdiction of this Court is invoked under 28 USC

§ 1254(1).

STATUTES INVOLVED

49 USC § 10701 Standards for Rates, Classifica-

<9 tions, Through Routes, Rules,

and Practices

(a) A rate (other than a rail rate), classification,

rule or practice related to transportation or

service provided by a carrier subject to the

jurisdiction of the Interstate Commerce

Commission under Chapter 105 of this title

must be reasonable. * * *

STATEMENT OF THE CASE

This case originated upon the filing by Respondent of

an adversary complaint in the United States Bank-

ruptcy Court for the Northern District of Texas on

August 29, 1985. The complaint sought to collect motor

carrier freight charges in addition to those previously

billed and paid on 218 motor carrier shipments trans-

ported between January 7, 1983, and March 30, 1984.

Jurisdiction was invoked pursuant to 28 USC § 1334

(cases or proceedings arising under, arising in, or related

to cases under Title 11, USC). Payment of the addi-

tional charges in question was alleged to be required by

49 USC § 10762, thus presenting a federal question

within the meaning of 28 USC § 1331 (general federal

question). Respondent filed the complaint in his capa-

city as trustee in bankruptcy for Caravan Refrigerated

Cargo, Inc., which had performed the interstate motor

common carrier service in question.

Petitioner filed an answer, affirmative defenses, and

counterclaim on February 11, 1986, alleging, inter alia,

that collection of the additional charges would consti-

tute an unreasonable practice prohibited by 49 USC

§ 10701(a). (Answer and Counterclaim, § 10). Petitioner

stated that Caravan had induced Petitioner to use Cara-

van’s services by representing that it could perform

services for Petitioner at specified rates and charges.

(Answer and Counterclaim, { 8). Petitioner also stated

that Caravan had followed a uniform practice of billing

Petitioner at the level of charges quoted and agreed to,

and of accepting payment from Petitioner based on

such billings. (Answer and Counterclaim, §§ 27, 28).

Petitioner further stated that it received no indication

from Caravan that the rates quoted and billed were

not filed with the Interstate Commerce Commission

(; ICC”) until after Caravan had discontinued its oper-

ations. (Answer and Counterclaim, {{ 29, 30).

On April 30, 1986, Petitioner filed a motion for a stay

of proceedings in the Bankruptcy Court and considera-

tion of its unreasonable practice defense by the ICC.

Uncontroverted affidavits submitted in support of the

motion by former officers of Caravan and by an officer

of Petitioner demonstrated that (1) Caravan uniformly

billed Petitioner at the negotiated level of rates, (2) Peti-

tioner was told by Caravan personnel that all rates

charged were lawfully in effect, (3) Petitioner paid all

charges as billed, and (4) Caravan had raised no ques-

tion as to the lawfulness of those charges until after its

cessation of operations in bankruptcy. (Affidavits of J.

Moore, S. Spiritas, and J. Newbold, April 30, 1986; May

1, 1986; and May 28, 1986). The affidavits also demon-

strated that the rates charged by Caravan were not

discriminatory, but rather, were similar to rates charged

to Petitioner by other competing carriers. (Affidavit of J.

Moore, April 30, 1986, p. 2). An affidavit of one of the

former Caravan officers conceded that Caravan’s prac-

tice of misrepresenting that lower rates were in effect

was a part of a specific effort by Caravan to retain Peti-

tioner’s business in the face of competition from other

carriers, even when Caravan was not able to make the

rate filings alleged to be necessary to comply with ICC

tariff filing requirements. (Affidavit of J. Newbold, pp.

2-3).

Petitioner’s motion referred extensively to a then-

pending proceeding before the ICC in which a major

national transportation organization, The National

Industrial Transportation League, had sought promul-

gation of a rule by the ICC declaring assessment of

published rates to be unreasonable under circumstances

similar to those alleged by Petitioner. Ex Parte No. MC-

177, National Ind: strial Transportation League —

—

Petition To Initiate Rulemaking on Negotiated Motor

Common Carrier Rates (“Negotiated Rates”). On May

8, 1986, the ICC announced that it intended to issue a

policy statement in lieu of a formal rule concerning

this issue. As a result of this announcement, Petitioner

and Caravan agreed to suspend further proceedings

before the Bankruptcy Court until the ICC issued a

written decision setting forth its conclusions.

On October 29, 1986, the ICC’s written decision in

Negotiated Rates issued at 3 ICC 2d 99. The ICC stated

that Congress in the Motor Carrier Act of 1980, Pub. L.

No. 96-296, 94 Stat. 793, had amended the National

Transportation Policy to require the ICC to promote

competitive, innovative, and individualized price and

service options to meet changing market demand. Pub.

L. No. 96-296 § 4; 49 USC § 10101(a)}(7); Negotiated

Rates, supra, at 3 ICC 2d 105. The ICC noted that

passage of the Motor Carrier Act had resulted in such

changes as eliminating prohibitions against rates applic-

able to only one shipper, allowing common carrier rates

to be filed on short notice, and permitting common

Carriers to perform service as contract carriers as well.

Id. at 105, 106.

Under these circumstances, the ICC stated that ship-

pers and carriers were called upon to negotiate hun-

dreds or even thousands of individual motor common

carrier rates daily. Jd. at 105. Such increased competi-

tive activity made it extremely difficult for shippers to

determine prior to movement whether agreed rates

were actually on file. It also placed greater importance

on the accuracy of carriers’ representations concerning

their rate levels. Jd. at 105, 106.

Because of these circumstances, the ICC stated that,

under appropriate circumstances, it would find that

Carrier attempts to collect their published charges

would be found to constitute unreasonable practices in

violation of 49 USC § 10701(a) where the carrier had

negotiated a lower rate with the shipper and had indi-

cated that the negotiated rate would be the one charged

and filed as a <xariff. Jd. at 107. The ICC further indi-

cated that it would exercise its unreasonable practice

jurisdiction upon referral from courts in which carrier

actions to collect charges were pending. Id. at 106-7.

On July 11, 1987, the Bankruptcy Court issued an

order denying Petitioner’s motion for referral. (Appendix

F). Simultaneously, however, the Bankruptcy Court

recommended transfer of the entire proceeding to the

United States District Court. Petitioner reasserted its

motion for referral before the District Court. That

motion, however, was denied by the District Court on

November 13, 1987. (Appendix E). The District Court

held that referral of reasonableness issues was not man-

datory and that it felt qualified to render a decision

without a prior ICC determination. Petitioner and

Respondent then filed cross-motions for summary judg-

ment, with Respondent also seeking dismissal of Peti-

tioner’s counterclaim. The District Court on January

20, 1988, granted Respondent’s motion for summary

judgment as to all issues. (Appendix D).

On January 28, 1988, Petitioner moved tor reconsider-

ation of the District Court’s order. In part, Petitioner

sought reconsideration based on the fact that a number

of the underlying shipments were performed on behalf

ot government agencies.’ Under 49 USC § 10721(b)\ kL),

such shipments are exempt from rate filing require-

ments so as to be exempt from any tariff collection

' Approximately fifty percent of the shipments at issue fall into

this category. Petitioner paid the freight charges on these shipments

and passed the charges through to the government without change.

obligations under 49 USC § 10761. Jetco, Inc. v. U.S., 11

Cl. Ct. 837 (1987). The District Court denied the

motion for reconsideration. (Appendix C). Petitioner

then filed its appeal to the United States Court

of Appeals for the Fifth Circuit. Following briefing

and argument, the Fifth Circuit issued its decision

affirming summary judgment on February 2, 1989. (Ap-

pendix B).

In affirming the District Court, the Fifth Circuit’s

apparent conclusion was that carrier practices of the

type both alleged by Petitioner on the record below and

described by the ICC in Negotiated Rates cannot con-

stitute a defense to a motor carrier action to collect

published freight charges. The Court stated that

allowing such a defense to be asserted and referred to

the ICC for decision would create an exception to the

requirement of 49 USC § 10761 that carriers must col-

lect their filed tariff charges. (B-9). The Court distin-

guished the instant case from the opinion of the

Eleventh Circuit in Seaboard System R.R. v. United

States, 794 F2d 635 (11th Cir. 1986). While conceding

that Seaboard had upheld an ICC ruling finding that a

carrier had engaged in an unreasonable practice by

misquoting rates to a shipper, the Fifth Circuit stated

that this defense was available only where the carrier’s

misquotation involved an unclear or ambiguous tariff.

(B-11). The Fifth Circuit also stated that affirmance of

the District Court was required by its decision in

Southern Pacific Transp. Co. v. City of San Antonio, 748

F2d 266 (5th Cir. 1984). It stated that Southern Pacific

held that a carrier is entitled to seek payment of

charges in its tariff in Court even while the reasonable-

ness of those tarifts is challenged before the ICC (B-8)

and that such a holding required rejection of Peti-

tioner’s unreasonable practice defense. (B-9).

The Fifth Circuit also rejected Petitioner’s contention

that application of published tariffs was not required on

its shipments for the government. It did not address the

District Court’s ruling on the merits of this contention.

Rather, it held that Petitioner should have been barred

from raising this argument before the District Court on

reconsideration because it had not raised the argunient

prior to summary judgment. (B-13). A timely-filed peti-

tion for rehearing was denied by the Fifth Circuit on

March 1, 1989.

REASONS FOR GRANTING THE WRIT

This case presents the Court with issues which are

the focus of litigation in literally hundreds of pending

federal and state court proceedings involving shippers

using the nation’s interstate motor common Carrier

system. As a by-product of increased competitiveness in

this system fostered by Congress in the Motor Carrier

Act of 1980, shippers have been faced with an increas-

ing pattern of willful understatement by motor

common carriers of their legally effective charges.

These misstatements have been buttressed by lengthy

periods of billing and acceptance of payment by carriers

at these understated levels. At a later date, almost

always after the carrier has ceased operations, a collec-

tion agency purporting to act for the carrier or its bank-

ruptcy trustee brings an action to collect “undercharges.”

This action is based upon the higher rates which had re-

mained legally in effect because of the carrier’s failure to

file the lower rates which it had promised the shippers.

Decisions of this Court and the Courts of Appeal

have long upheld the power of the ICC to declare in-

equitable, deceptive, or unwarranted carrier rate prac-

tices unreasonable under 49 USC § 1070l1(a). The ICC’s

Negotiated Rates policy statement specifically declared

the intention of the ICC to expand its use of these

powers to address rate misrepresentation issues. The

opinion of the Fifth Circuit, however, along with deci-

sions of a minority of lower courts, holds that shippers

are foreclosed from asserting unreasonableness of such

practices as a defense to carrier collection actions.

The Fifth Circuit decision is in direct conflict with

the decision of the Eleventh Circuit in Seaboard

System R.R. v. United States, supra, 794 F2d 635. Sea-

board affirms a decision of the ICC holding that it

would be an unreasonable practice for a carrier to col-

lect its published tariff rates where it had misled the

shipper as to the applicable tariff rate. Id. at 637, 639.

The decision is also in direct conflict with the deci-

sions of this Court in United States v. Western Pacific

R. Co., 352 U.S. 59 (1956) and the Seventh Circuit in

Western Transportation Co. v. Wilson & Co., 682 F2d

1227 (7th Cir. 1982). Those decisions hold that a

shipper may raise unreasonableness as a defense to a

carrier collection action without first paying the

charges at issue to the carrier.

The decisional conflict before the Court, however,

relates not only to the conflict between these cases and

the Fifth Circuit opinion below, but also to the conflict

extant in the myriad of currently pending cases on this

issue. As indicated by the abstract of cases contained in

Appendices G & H, litigation involving these same

issues currently is pending on appeal in five other cir-

cuits.” Federal or state courts have granted referral of

approximately 150 proceedings involving these issues to

> Appco Paper & Plastic Co. v. Oneida Trucking Co., No. 88-9057

(2d Cir.) (appeal from decision denying reference to ICC); Orr v. ICC,

No. 89-5108 {6th Cir.) (appeal from the decision affirming unreason-

ableness finding of ICC); Zenith Electronics Corp. v. Orscheln

Brothers Truck Lines, Nos. 89-1261, 1329, 1330 (7th Cir.) (appeal from

decision declining to apply ICC unreasonableness finding); Maislin

Industries, U.S., Inc. v. Primary Steel, Inc., No. 88-2267-WM (8th Cir.)

appeal from decision affirming unreasonableness finding of ICC);

Delta Traffic Service v. Marine Lumber Co., No. 89-35121 (9th Cir.)

appeal from decision affirming unreasonableness finding of ICC).

the ICC for determinations as to the unreasonableness

of motor carrier practices under 49 USC § 1070l{(a). (G-

1-G-9). In approximately 50 cases, however, district

courts, bankruptcy courts, or state courts have denied

shipper requests for referral of unreasonable practice

defenses to the ICC. (H-1-—H-5). In additional cases,

district or bankruptcy courts have rejected ICC findings

of unreasonable motor carrier practices as non-binding.

(H-1-H-5). The conflict among these decisions is one

which only this Court can resolve.

THE ICC HAS DISCRETION TO DETERMINE THAT THE

CARRIER CONDUCT ALLEGED IN THIS CASE CONSTI-

TUTES AN UNREASONABLE PRACTICE PROHIBITED BY

49 USC § 10701(a).

The fundamental issue tor decision by the Court is

whether the long-exercised statutory power of the ICC

to declare motor carrier rates or their collection

unreasonable may be negated by an over-extension of

the statutory requirement that carriers initially charge

their published rates. The policy announced by the ICC

in Negotiated Rates and applied in many succeeding

cases is an exercise of the long-established statutory

powers of the ICC, currently codified at 49 USC

§ 10701(a), to declare that collection of rates in carrier

tariffs may constitute unreasonable practices under

appropriate circumstances. Such findings require that

related court actions for collection must be dismissed.

Decisions such as that of the Fifth Circuit below

ignore this important statutory function of the ICC.

Rather, they extend case precedents which bar courts

from considering misrepresentation, fraud, or prior

agreement as defenses to the collection of published

charges to bar the ICC from considering such factors in

the exercise of its congressionally mandated powers under

49 USC § 10701(a). Such a theory represents a perverse

statutory construction which this Court should not

countenance. In the words of the Eleventh Circuit, prior

to the inception of the present controversy, “the courts

(|had] never held that the ICC lacks authority to prohibit

the unreasonable collection of undercharges.” Seaboard

System R.R. v. United States, supra, 794 F2d at 638.

This Court frequently has noted that the powers

granted to the ICC to prohibit unreasonable carrier

practices are extremely broad. The ICC’s recodified

statutory powers at 49 USC § 10701(a) are derived from

prior statutes affecting both rail and motor carriers. The

statute states that the ICC’s reasonableness powers

extend to “any practice related to transportation or

service provided by a carrier”. The predecessor to this

provision originally enacted by Congress in 1906 em-

phasized the breadth of these powers even more

strongly, applying them to “any regulations or practices

whatsoever” of a carrier affecting common carrier rates

and charges. Interstate Commerce Commission v.

Illinois Central Railroad Co., 215 U.S. 452, 475 (1910).

The ICC itself has construed its unreasonable practice

powers as “broad enough to cover any unreasonable

practice of a common carrier” and control “whatever

regulations and practices” enter into the application of

carrier rates. Postal Telegraph Cable Co. v. W. U. Tele-

graph Co., 59 ICC 512, 516 (1920); Stopping of Cars in

Transit to Complete Loading, 36 ICC 130, 132 (1915),

The categories of carrier conduct which the ICC has

found to constitute unreasonable practices range across

the entire spectrum of transportation activities having

an impact on the charges ultimately paid by shippers.

Very early in its existence, the ICC held that it could

be an unreasonable practice for carriers to publish rate

provisions and billing documents which were likely to

mislead the shipping public or suggest that rates higher

or lower than those actually on file would be charged.

In the Matter of Released Rates, 13 ICC 550, 562, 564

(1908). The ICC has repeatedly held that the fact that a

rate is contained in a published tariff and is found to be

reasonable in its own right does not prevent application

of that rate from constituting an unreasonable practice

in particular circumstances. National Wool Growers

Association v. Union Pacific R. Co., 49 ICC 55, 58

(1918), Albers Bros Milling Co. v. Great Northern Ry.

Co., 256 ICC 491, 500 (1943). Both this Court and the

ICC have held that shippers injured by unreasonable

carrier practices are entitled to recovery of money

damages from the carriers involved. Hewitt-Robins, Inc.

v. Eastern Freightways, supra, 371 U.S. 84 (1962);

Adams v. Mills, 286 U.S. 397, 407-8 (1932); Bud Antle,

Inc. v. United States, 593 F2d 865, 875 (9th Cir. 1979);

Albers Bros Milling Co. v. Great Northern Ry. Co.,

supra, 256 ICC at 500; Hawkins & Son v. Director Gen-

eral, 80 ICC 225, 227 (1923).

The apparent logic of the Fifth Circuit and the

minority of lower courts in declining to recognize the

power of the ICC to find that coniinuing rate misrep-

resentation constitutes an unreasonable practice is either

that (1) the ICC lacks power to find that assessment of a

published rate constitutes an unreasonable practice or

(2) the practices alleged by petitioner and noted by the

ICC in Negotiated Rates could never be found to be

unreasonable within the meaning of 49 USC § 10701 (a).

Both of these propositions are patently untenable. From

the very onset of regulation, the ICC has exercised its

powers to declare carrier rates and practices unreason-

able to relieve shippers from their obligation to pay

published carrier charges. This fact is imbedded in the

very quotation of Justice Brandeis recited by the Fifth

Circuit in support of the primacy of filed rates. (B-5).

The full statement of law by Justice Brandeis explain-

ing the interrelation between the ICC’s reasonableness

powers and the duty of carriers to collect their pub-

lished charges reads as follows:

The rate of a carrier duly filed is the only

lawful charge. Deviation from it is not permitted

upon any pretext. Shippers and travelers are

charged with notice of it, and they as well as the

carrier must abide by it, unless it is found by

the Commission to be unreasonable. Ignorance

Or misquotation of rates is not an excuse for

paying or charging either less or more than the

rate filed. The rule is undeniably strict, and it

may work hardship in some cases, but it em-

bodies the policy which has been adopted by

Congress in regulation of interstate commerce in

order to prevent unjust discrimination. Louis-

ville & Nashville Ry. v. Maxwell, 237 U.S. 94, 97

(1915) (Emphasis added).

Significantly, the Fifth Circuit’s quotation of this lan-

guage in its opinion (B-5) omits the reference of Justice

Brandeis to the power of the ICC to prevent application

of a filed rate by tinding it to be unreasonable. Similar

deletions of this critical phase appear in other decisions

of lower courts which cite this quotation as estab-

lishing a requirement of immutable adherence to pub-

lished tariffs. See, e.g., INF Ltd. v. Spectro Alloys Corp,

690 F. Supp. 808, 810 (D. Minn. 1988).

These deletions of Justice Brandeis’ critical phrase

show a fundamental lack of understanding of the

numerous court decisions differentiating between the

“legal rate” contained in the carrier’s tariff, which the

carrier is initially required to charge, and the “lawful

rate” ultimately established by an ICC decision fol-

lowing a shipper objection that the “legal rate” was

unreasonably high. Arizona Grocery Co. v. Atchison

T. & S.F Ry. Co., 284 U.S. 370, 384 (1932); Middlewest

Motor Freight Bureau v. U.S., 433 r2d 212, 238-39 (8th

Cir. 1970), cert. den. 402 U.S. 999 (1971). It is only the

lawful rate which the shipper ultimately is required to

bear. The Fifth Circuit and other lower courts simply

are wrong in their assertion that the “filed tariff doc-

trine” created by 49 USC § 10761 bars the ICC from

finding a tariff or its application to be unreasonable so

as to allow a shipper to avoid payment of the charges

contained in that tariff.

There similarly is no merit to any argument that the

unreasonable practice defenses asserted by Petitioner

and described. in Negotiated Rates must be rejected

because of any particular inconsistency with the rate

filing requirements of 49 USC § 10761. The fact that

the claimed unreasonable practice involves fraud or

misrepresentation in description of the carrier’s legally

effective rates does not constitute a bar to the ICC’s

exercise of its unreasonable practice jurisdiction. The

line of cases which holds that fraud, misrepresentation,

or other equitable defenses may not be asserted in

carrier actions to collect published rates applies only to

those situations where shippers seek to invoke the

powers of equity granted to courts. No similar prohibi-

tion, however, applies to the ICC. Under the ICC’s

reasonableness powers, the same facts which could not

be asserted as a common law or equitable defense to

payment of freight charges in a court proceeding may

constitute a basis for the ICC to find either that pub-

lished rates themselves are unreasonable or that the

collection of such rates would be unreasonable.

The decisions of the ICC and the courts are replete

with examples of situations in which equitable circum-

stances which could not be asserted as common law

defenses to collection of filed rates in court proceedings

have been found to support ICC findings of unreason-

ableness. For example, even before the effectiveness of

deregulation legislation concerning the rail and motor

carrier industries in 1980, the ICC had recognized that

public policy considerations concerning rail rates war-

ranted a presumption that any published rate in excess

of the rate agreed upon between a carrier and shipper

and relied upon by the shipper would be unreasonable.

Ex Parte No. 358-F, Change of Policy, Rail Road Con-

tract Rates, 45 Fed. Reg. 21719 (April 2, 1980, reported

in Cleveland Cliffs Iron Co. v. ICC, 664 F2d 568, 573

(6th Cir. 1981). See also, Coal Colstrip, Kuehn and

Decker, MT, To Superior WI, 364 ICC 152 (1980); Unit

Train Rates — Coal — Burlington Northern, Inc., 364

ICC 186 (1980), affd. sub nom Iowa Power and Light

Co. v. Burlington Northern, Inc., 647 F2d 796 {8th Cir.

1981), cert. den. 455 U.S. 907 (1982); Annual Volume

Rates on Coal — Flint Creek, AR, 364 ICC 753 (1981),

affd. sub nom. Burlington Northern, Inc. v. United

States, 679 F2d 915 (D.C. Cir. 1982).

Many prior decisions of the ICC also had recognized

that an agreement or course of dealing between a

shipper and a carrier to charge particular rates could be

given evidentiary effect in determining whether higher

published rates should be found unreasonable. Pied-

mont Mills, Inc. v. Norfolk & W. R. Co., 296 ICC 481,

485 (1955) (carrier misquotation and acceptance of

lower charges over 3 year period); Ideal Cement Co. v.

Atchison, T. & S.F, 280 ICC 55, 59 (1951) (confusing

tariff and carrier offer to establish clarifying tariff);

Carson Iron & Steel Co. v. Atlantic & N.C. R. Co., 237

ICC 724, 728 (1940) (carrier error in tariff publication);

Sheboygan Fruit Box Co. v. Chicago & N. W. Ry. Co.,

214 ICC 157 (1936) (mutual assumption that cancelled

rate had remained in effect); Sutherland Paper Co. v.

Ann Arbor R. Co., 215 ICC 344 (1936); Armour & Co. v.

Northern Pacific Ry. Co., 209 ICC 277 (1935); C.A.

Wagner Construction Co. v. Chicago & N.W. Ry. Co.,

208 ICC 767 (1935) (emergency need to move ship-

ments before agreed rate could be placed in ettect).

In still other cases, the ICC had found that it would

be inequitable and an unreasonable practice to apply

published tariffs in particular transportation circum-

stances. Thermofil, Inc. v. Jones Transfer Co., supra, 355

ICC 828 (charges for trailer use by carrier not owning

trailer); Jowa Beef Processors, Inc. v. Western Transporta-

tion, ICC Docket No. 37521 {not printed; September 14,

1981), cited in Western Transportation Co. v. Wilson &

Co., supra, 682 F2d at 1231. Standard Brands, Inc. v. Cen-

tral R. Co. of N.]., supra, 350 ICC 555 (document nota-

tion requirement unrelated to transportation service).

The policy announced by the ICC in Negotiated

Rates is a logical extension of these previously exer-

cised powers. The ICC noted that the primary evil

which the tariff filing requirement of 49 USC § 10761

was designed to prevent — discrimination between

shippers — had been reduced in practical significance

by substantial increases in carrier rate flexibility

adopted after the Motor Carrier Act of 1980. Negotiated

Rates, supra, 3 ICC 2d 104. The ICC decided that

assignment ot controlling weight to prior negotiations

or misrepresentation would be granted only on a case-

by-case basis, reflecting the particular tacts of indi-

vidual situations. /d. at 106, 107, On a particular record,

it it could be shown that a shipper-carrier negotiation

of rates without a subsequent carrier rate filing was

effected to obtain discriminatory treatment, the ICC

would be free to reject a finding of unreasonable prac-

tices and protect the policies of 49 USC § 10761. As the

ICC noted, its right to change its interpretation of

statutes to meet changing factual or policy situations is

clearly established by decisions of this Court in

Chevron U.S.A., Inc. v. Natural Resource Defense Coun-

cil, 467 U.S. 837 (1984) and American Trucking Associa-

tion v. Atchison T. & S.F Ry. Co., 387 U.S. 397, 416

(1967).

The decision below is totally at odds with the deci-

sion of the Eleventh Circuit in Seaboard System R.R. v.

United States, supra, 794 F2d 635. The Eleventh Cir-

cuit, unlike the Fifth Circuit below, was willing to

allow the ICC to give effect to the understanding

between the shipper and carrier rather than forcing

adherence to the higher filed rate. The carrier’s rep-

resentation in Seaboard that the lower rate was effec-

tive resulted from the carrier’s own misinterpretation

of what the Eleventh Circuit described as a “somewhat

unclear published tariff.” Jd. at 636. Closer analysis of

the tariff, first by the carrier and then by the ICC

revealed, however, that the tariff was unambiguous and

provided for a higher rate than had been quoted and

agreed to. The court in Seaboard noted that the critical

factor for the ICC was “the carrier’s continuing con-

duct in misleading the shipper as to the applicable

tariff rate.” Id. at 639. When the carrier advised the

shipper that it had changed its interpretation of the

tariff, the ICC ruled that the unreasonableness of the

Carrier's practice came to an end. /d. The Fifth Circuit’s

characterization of Seaboard as a case which turns on

the ambiguity of the underlying tariff thus is incorrect.

The Eleventh Circuit’s approval of the ICC’s finding

that the carrier’s breach of its rate agreement consti-

tuted an unreasonable practice thus is directly contrary

to the Fifth Circuit’s unwillingness to allow the ICC

to consider the rate agreement between Petitioner and

Caravan.

There is no merit to an argument that any rejection

or diminution of the ICC’s rate reasonableness powers

is dictated by this Court’s decision in Square D Co. v.

Niagara Frontier Tariff Bureau, 476 U.S. 409 (1986). In

Square D, the Supreme Court noted that the principle

of inviolability of filed rates from court attack under

common law had been extended to bar antitrust treble

damage actions against rates established by conspiracy

in Keogh v. Chigago & Northwestern R. Co., 260 U.S.

156 {1922). In affirming the continuing vitality of

Keogh, the Court in Square D made three specific refer-

ences confirming the powers of the ICC to set aside

rates contained in published tariffs. At two points, the

Court made specific reference to its holdings in prior

cases that rates in published tariffs are binding on

shippers and carriers “until suspended or set aside” by

the ICC. Square D, supra, at 416, 418 n.22. Moreover, in

a lengthy footnote, the Court cited portions of the

opinion of Justice Brandeis in Keogh describing the

unreasonableness remedy available to shippers before

the ICC and citing the existence of this remedy as

the basis for barring parallel remedies under the anti-

trust laws.

What rates are legal is determined by the Act to

Regulate Commerce. Under § 8 of the latter act

the exaction ot any illegal rate makes the carrier

liable to the ‘person injured thereby for the full

amount of damages sustained in consequence of

any such violation’ together with a reasonable

attorney’s fee. Section 9 and 16 provide for the

recovery of such damages either by complaint

before the Commission or by an action in a fed-

eral court. Jf the conspiracy here complained of

had resulted in rates which the Commission

found to be illegal because unreasonably high

or discriminatory, the full amount of the

damages sustained, whatever their nature,

would have been recoverable in such proceed-

ings. Square D, supra, at 416, n. 18 (Emphasis

added).

Any suggestion that Square D constitutes authority for

the proposition that a filed rate may not be set aside by

the ICC simply is incorrect. Rather, it was the exis-

tence of an unreasonableness remedy betore the ICC

that led the court in Square D and Keogh to conclude

that Congress intended to bar attacks on filed rates

under the antitrust laws.

Il.

A SHIPPER WHICH RAISES THE DEFENSE OF UNREA-

SONABLE PRACTICES IN A MOTOR CARRIER ACTION

TO COLLECT FREIGHT CHARGES IS NOT REQUIRED TO

PAY THE CHARGES TO THE CARRIER PRIOR TO CON-

SIDERATION OF ITS DEFENSE BY THE ICC.

The Court should also reject the statement in the

Fifth Circuit opinion that shippers raising unrea-

sonable practice defenses to carrier actions to collect

freight charges are required to pay the charges even

while their defenses are under considcration before the

ICC. It is well settled that issues of unreasonable-

ness of rates and unreasonableness of practices under

49 USC § 10701(a) fall within the exclusive primary

jurisdiction of the ICC. Great Northern R. Co. v. Mer-

chants Elevator Co., 259 U.S. 285, 291 (1922); United

States v. Western Pacific Railroad, 352 U.S. 59, 68

(1956).° It likewise is well established that shipper

defendants in carrier actions to collect freight charges

are entitled to assert as defenses either the contention

that the rates sought to be collected are statutorily

unreasonable or that collection of these rates would

constitute a statutorily prohibited unreasonable prac-

tice. United States v. Western Pacific Railroad, supra,

352 US. at 71-73; Western Transportation Co. v. Wilson

& Co., supra, 682 F2d at 1231. In these circumstances,

courts regularly have recognized that shippers pleading

unreasonable rate or practice defenses to carrier collec-

tion actions in court are entitled to stays of the collec-

tion actions pending determination of their unreason-

ableness defenses by the ICC. Western Transpor’ation

Co. v. Wilson & Co., supra, 682 F2d at 1231, 1232; Sea-

board System R.R. v. United States, supra, 794 F2d at

639; Interoceanic Commodities Corp. v. Chicago G. W.

Ry. Co., 309 ICC 710, 612 (1960); Bushman Dock &

Term. v. Chesapeake & O. Ry. Co., 302 ICC 183, 186

(1950).

The ICC’s statement in Negotiated Rates that its role in a

reterred case is “advisory” relates only to the fact that the power to

impose an actual remedy on a carrier found to have engaged in

unreasonable practices rests with the referring court rather than the

ICC. Negotiated Rates, supra, 3 ICC 2d 107 Review by the referring

court otf the Commission's findings as to unreasonableness issues 1s

subject to ordinary restrictions on judicial review of federal agency

action. The referring court is not free to substitute its own judg-

ment tor that of the Commission. See Keller Industries, Inc. v

(JS, 449 Fld 163, 174, at n.31 (9th Cir. 1971), and cases cited

therein

Both the courts and the ICC have recognized specifi-

cally that unreasonableness of a rate or practice is an

affirmative defense to a carrier collection action, as

opposed to an independent claim to be raised by

counterclaim or separate suit. In Re Penn Central

Transportation Co., 477 F2d 841, 844 (3rd Cir. 1973),

cert. den. 414 U.S. 885, 923 (1974); Lawson Concrete

Co. v. C.& N.W. Transp. Co., 367 ICC 109, 111 (1982).

Notwithstanding early statements that shippers alleging

rates to be unreasonable were required to first pay the

rates and then file reparation actions to recover them,

later ICC decisions eliminated this requirement by

granting specific approval to the carriers’ non-collection

of rates ultimately found to be unreasonable. See, i.e.,

Bradford Coal Co. v. Baltimore & O. R. Co., 305 ICC

761, 766-67 (1959); New England Box Co. v. Boston &

M. R., 305 ICC 133, 135 (1958); Foremost Food & Chem-

ical Co. v. Alton & S.R., 318 ICC 35, 39 (1962!)

There is no precedential support tor the statements of

the Fifth Circuit below that “a court may not stay

enforcement of the filed tariff rate on the ground that

the shipper has pled unreasonableness” or that “a car-

rier is entitled to enforce the filed rates under the filed

tariff doctrine and to seek payment of undercharges in

the district court even while the reasonableness of the

tariffs is challenged before the commission.” * (B-9 at

n.6, B-8). The only case cited by the Fifth Circuit in

support of these proppsitions is Southern Pacific

Transp. Co. v. City of San Antonio, 748 F2d 266 (5th

Cir. 1984). Southern Pacific arose out of this Court's

opinion in Burlington Northern v. U.s., 459 US. 131

(1982). It essentially enforced this Court’s holding that

* These statements by the Fifth Circuit in reality are merely

dicta. The effect of the Fifth Circuit's opinion was to foreclose the

litigation of reasonableness issues betore the ICC.

reviewing courts lack the power to delay the implemen-

tation of proposed rate increases found not to be un-

reasonable by the ICC. Southern Pacific Transp. Co. v.

City of San Antonio, supra, at 748 F2d 273.

The decision in Burlington Northern reflected this

Court's concern that preventing future rate proposals

trom taking effect on the grounds of alleged unreason-

ableness would irrevocably prejudice the carriers

because of their lack of a remedy to recover revenue

shortfalls from shippers for the period of litigation.

Burlington Northern v. U.S., supra, at 459 U.S. 139, 141-

143. This irreparable harm to the carrier is not present

in cases in which unreasonableness of a rate or rate

practice is raised as a defense to a Carrier action to

collect published charges on past shipments. In that

situation, the carrier will always retain its collection

remedy against the shipper in the event that the ship-

per is unsuccessful in obtaining a determination of

unreasonableness from the ICC. There is no indication

in Burlington Northern that this Court intended to

toreclose shipper rights to raise the unreasonableness

detenses to actions to collect past shipments which

this Court had recognized in United States v. Western

Pacific Railroad, supra, 352 U.S. 59.

Il.

THE IMPORTANT FEDERAL INTEREST IN SECURING

LOWER RATE SCHEDULES FOR GOVERNMENT TRAFFIC

REQUIRES COURTS TO ACCEPT DELAYED ASSERTION

OF SUCH INTERESTS IN COURT PROCEEDINGS.

Certiorari also should be granted for the purpose of

protecting the statutorily recognized public interest in

securing lower and more competitive rates for transpor-

tation for the government. 49 USC § 10721(b)(1) pro-

vides that such transportation may be provided without

charge or at reduced rates. Carriers performing transpor-

tation falling within this exemption are permitted to

“agree with the government to a lower rate schedule for

government carriage.” Baggett Transportation Co. v.

United States, 670 F2d 1011, 1012 (Cl. Ct. 1982). The

defenses of prior agreement and estoppel against the

assessment of a higher published rate are available in

actions involving traffic in this category. Jetco, Inc. v.

U.S., supra, 11 Cl. Ct. at 845. The government traffic

exemption 1s applicable even to shipments initially

billed to private shippers rather than to the government

when the government “directly and completely re-

imburses the party which initially bears the freight

charges,” where “the government receives the entire

benefit of the reduced rates,” and where the shipper “is

merely acting as a conduit” for passage of the reduced

rate through to the government. /nterpretation of Govt.

Rate Tariff — Eastern Central, 323 ICC 347, 349 351,

352 (1964), revd on other grounds, Middle Atlantic

Conference, et al. v. United States, 265 F Supp. 448 (D.

Md. 1967). Information presented in affidavits sub-

mitted below prior to the entry of summary judgment

indicated that such factors may be applicable to Peti-

tioner’s shipments to governmental units.”

The significant public interest in ensuring low-cost

transportation for governmental shipments is impaired

by the decision below to bar consideration of this issue

because Petitioner did not raise it initially as a legal

issue In Opposition to summary judgment. While trial

courts have discretion to decline reconsideration of

legal arguments which are not raised initially in opposi-

tion to summary judgment motions, such discretion is

not unlimited. Delays in submitting legal arguments

should not be fatal where the failure to hear such argu-

Attidavit of S. Spiritas, May |, 1986, at pp. 2-3.)

ments would result in a miscarriage of justice or frus-

trate a significant public policy. McCrea v. Harris

County Houston Ship Channel Nav. Dist., 423 F2d 605,

610 (5th Cir. 1970); Western Transportation Co. v.

Wilson & Co., supra, 682 F2d at 1232. The legislative

history of 49 USC § 10721(b)(1) and its predecessors

shows a clearly expressed intention by Congress to

maintain a preferred position for governments in their

transportation dealings. See Senate Report No. 410, US.

Code Cong. and Admin. News, 85th Congress, First

Session (1957), p. 1782; Increased Freight Rates,

E.W.&S. Territories, 1956, 300 ICC 633, 669 (1957).

Assertion of such defenses by Petitioner in connection

with its shipments for the government should not have

been rejected.

CONCLUSION

The Petition tor a Writ of Certiorari should be granted.

Respectfully submitted,

By: /s/ JOHN W. BRYANT

Counsel ot Record

s/ NEILL T. RIDDELL

EAMES WILCOX, MASTE] AND BRYANT

900 Guardian Building

Detroit, Michigan 48226

Telephone: (313) 963-3750

Counsel for Petitioner

Dated: May 30, 1989

a &

A-|

APPENDICES TO PETITION FOR CERTIORARI

APPENDIX A

ORDER DENYING REHEARING

(United States Court of Appeals — Fifth Circuit}

(Filed March 1, 1989)

{IN THE MATTER OF: CARAVAN REFRIGERATED CARGO,

INC., Debtor; SUPREME BEEF PROCESSORS, INC., Appel-

lant, versus ROBERT YAQUINTO, JR., Trustee for Caravan

Refrigerated Cargo, Inc., Appellee — No. 88-1209;

Appeal from the United States District Court for the

Northern District of Texas)

ON PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

(Opinion 02/02/, 5 Cir, 1989, _. F2d __)

(MARCH I, 1989)

Betore: REAVLEY, HIGGINBOTHAM

and SMITH, Circuit Judges.

PER CURIAM: 7

VY) The Petition for Rehearing is DENIED and no

member of this panel nor Judge in regular active

service on the Court having requested that the

Court be polled on rehearing en banc, (Federal Rules

of Appellate Procedure and Local Rule 35) the Sug-

gestion for Rehearing En Banc is DENIED.

"] The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the

members of the Court and a majority of the Circuit

A-2

Judges who are in regular active service not having

voted in favor of it, (Federal Rules of Appellate Pro-

cedure and Local Rule 35) the Suggestion for Rehear-

ing En Banc is also DENIED.

[] A member of the Court in active service having

requested a poll on the reconsideration of this cause

en banc, and a majority of the judges in active ser-

vice not having voted in favor of it, rehearing en

banc is DENIED.

ENTERED FOR THE COURT:

/s/ .. Smith

United States Circuit Judge

REHG-6

CLERK'S NOTE SEE FRAP AND LOCAL RULES 41

FOR STAY OF THE MANDATE

B-1

APPENDIX B

OPINION

[PUBLISHED AT 864 F.2d 388]

(United States Court of Appeals — Fifth Circuit)

(Filed February 2, 1989)

(In the Matter of CARAVAN REFRIGERATED CARGO,

INC., Debtor, SUPREME BEEF PROCESSORS, INC., Appel-

lant, v. Robert YAQUINTO, Jr., Trustee for Caravan Retrig-

erated Cargo, Inc., Appellee — No. 88-1209; Appeal

trom the United States District Court tor the Northern

District of Texas}

Betore: REAVLEY, HIGGINBOTHAM,

and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This is an archetypal “negotiated rate case” involving

a motor carrier and a shipper of beef. The well-worn

choreography for these cases involves a motor carrier’s

action against a shipper to collect for undercharges;

that is, to collect the difference between the higher rate

which the carrier has filed with the Interstate Com-

merce Commission (the “Commission”) and the rate

which the parties had negotiated.

In the action before us, the district court refused to

refer the case to the Commission and granted summary

judgment for the carrier over the shipper’s objection

that the filed tariff was unreasonable. The shipper

sought the district court’s reconsideration on the

ground that its business with the carrier was at the

behest of the government, but the court refused to

reconsider. Agreeing with the district court that sum-

B-2

mary judgment was appropriate and that the motion for

reconsideration was properly denied, we affirm.

[

A GREAT DEAL WHILE IT LASTED.

Supreme Beet Processors, Inc. |‘“Supreme Beet”), 1s a

major producer and supplier of beet products to the

United States Government. Caravan Refrigerited Cargo,

Inc. (“Caravan”), supplied refrigerated transport ser-

vices to Supreme Beet for several years prior to Cara-

van’s bankruptcy. According to Supreme Beef, it had a

longstanding agreement with Caravan that Caravan

would “meet or beat” any motor carrier rate quoted by

a competing carrier. This agreement enabied Supreme

Beef to rely upon low-cost transportation tor purposes

of preparing its bids. In return, Caravan was guaranteed

a large volume of shipping business trom Supreme Beet

During their relationship, Supreme Beet and Caravan

continually negotiated the transportation rates to

assure competitiveness with other carriers’ rates

Caravan billed Supreme Beet tor the agreed rates, and

Supreme Beet paid those bills. The negotiased rates tor

the shipments in question here, however, were not the

same as those that Caravan had tiled with the Commis-

sion: The tiled rates were higher. From the summary

judgment record, it appears that Supreme Beet was

unaware ot the variance, and had relied upon Cara-

van’s rate quotations. After Caravan’s bankruptcy,

the trustee tiled the instant suit to collect trom

Supreme Beet the ditterence between the negotiated

rates and the tiled rates tor those periods during which

Caravan did not have the actual, negotiated rates on

tile; the parties agree that the difference amounts to

$ 70,227.08.

B-3

On appeal, Supreme Beef contends that the court

erred in failing to refer the case to the Commission,

where it could contest the reasonableness of the filed

rates, or in the alternative, to deny the summary judg-

ment motion on the basis of Supreme Beef’s defense of

unreasonableness. Supreme Beef also urges that we find

error in the district court’s refusal to vacate the summary

judgment order after Supreme Beef had presented factual

evidence as to the government-carrier exemption.

II.

WHERE'S THE BEEF?

Supreme Beet’s first contention is that this case was

litigated in the wrong forum. It invokes the primary

jurisdiction doctrine and contends that the district

court should have referred the dispute to the Commis-

sion in the interests of uniformity and expert admini-

stration of issues of transportation policy. See United

States v. Western Pac. R.R., 352 U.S. 59, 65, 77 S.Ct.

161, 165, 1 L.Ed.2d 126 (1956).

Under the primary jurisdiction doctrine, “a district

court trying a case under the Interstate Commerce Act

must, if presented with such an issue, stay its proceed-

ings and reter the case to the Commission.” City of

New Orleans v. Southern Scrap Material Co., 704 F2d

755, 758 (5th Cir. 1983) (citing ICC v. Atlantic Coast

Line Ry., 383 U.S. 576, 579 86 S.Ct. 1000, 1003, 16

L.Ed.2d 109 (1966)). In addition, we have stated that

when “the reasonableness of a rate is at issue, ‘there

must be preliminary resort to the Commission.’”

Southern Pac. Transp. Co. v. City of San Antonio, 748

F.2d 266, 272 (5th Cir. 1984) (quoting Great N. Ry. v.

Merchants Elevator Co., 259 U.S. 285, 291, 42 S.Ct. 477

479, 66 L.Ed. 943 \1922)). Supreme Beef thus contends

that because Caravan’s suit was based upon section

B-4

10761\a) of the Interstate Commerce Act, and because it

properly pled unreasonableness as a defense, the district

court was required to refer the case.

Here, however, the facts do not raise technical or

complex issues, regarding appropriate rates, that require

the expert administration of the Commission and

thereby invoke the primary jurisdiction doctrine.

Supreme Beet bases its charges of unreasonableness

upon the unfairness of having to pay the filed rate

because Caravan “tailed to get its paperwork done.” In

reality, this dispute concerns only the applicability of

49 U.S.C. § 10761\a), which provides that a carrier sub-

ject to the jurisdiction of the Commission “may not

charge or receive a different compensation for... trans-

portation or service than the rate specified in the

tariff.” ' The purpose of this statute is to prevent large

suppliers and shippers from negotiating “under-the-

table” tariffs, lower than the filed tariffs, and thus

undercutting competition from smaller suppliers who

must also use the highways of interstate commerce to

get their goods to market

Judicial interpretations of section 10761(a) and its

predecessors have given rise to the “filed tariff doctrine, ”

which Justice Brandeis ably explained as follows

Section 10761] \a! provides tn full

1!) Except as provided in this subtitle, a carrier providing

transportation or service subject to the jurisdiction of

the Interstate Commerce Commission under chapter

LO5 ot this title shall provide that transportation or

service only if the rate tor the transportation or service

is contained.in a tariftt that is in ettect under this

subchapter. That carrier may not charge or receive a

ditterent compensation tor that transportation or

service than the rate specified in the tariff whether by

returning a part of that rate to a person, giving a

person a privilege, allowing the use of a facility that

attects the value of that transportation or service, or

another device

B-5

The rate of a carrier duly filed is the only lawful

charge. Deviation from it is not permitted upon

any pretext. Shippers and travelers are charged

with notice of it, and they as well as the carrier

must abide by it ... Ignorance or misquotation

of rates is not an excuse for paying or charging

either less or more than the rate filed. The rule

is undeniably strict, and it may work hardship

in some cases, but it embodies the policy which

has been adopted by Congress in regulation of

interstate commerce in order to prevent unjust

discrimination.

Louisville & Nashville Ry. v. Maxwell, 237 U.S. 94, 35

S.Ct. 494, 495, 59 L.Ed. 853 (1915).

Supreme Beef contends, however, that the filed taritt

doctrine has been weakened and that the district court

should have referred the case so that it could contest

the reasonableness of Caravan’s filed rates in light of

Caravan’s misquotations. As support for its argument

Supreme Beef cites the Motor Carrier Act of 1980; an

advisory opinion from the Commission, National

Indus. Transp. League (Ex Parte MC-177), 3 1.C.C.2d 99

86 Fed.Carr.Cas. (CCH) © 37,284 (Aug. 7 1987); and a

recent Eleventh Circuit opinion upholding a Commis-

sion ruling that a carrier had engaged in an unreason-

able practice by misquoting rates to the shipper.

Supreme Beet’s claim is that with the Motor Carrier

Act, Congress sought to make the industry more com-

petitive by reducing the burden which filing taritts

imposes and that the Commission recognized this

change when it declared in its advisory opinion that

“equitable defenses to rigid application of filed tarift

See Seaboard Svs. R.R. v. United States 94 F2d 63 53

Iith Cir. 1986

B-6

rates should be available on a case-by-case basis.” More-

over, as the Seaboard System case demonstrates, a cir-

cuit court of appeals has approved the Commission’s

willingness to find that misquotation constitutesd an

unreasonable practice. We respond to each of these

authorities 1n turn.

A. THE MOTOR CARRIER ACT.

We camnot agree that the 1980 Act abrogates the filed

tarifr doctrine, as we cannot ignore the plain fact that

when Congress examined this avea in 1980, it did so in

light of section 1076i(a) and the long-standing judicial

interpretations of that statute. In fact, the changes

which Congress did make, a filing exemption for con-

tract carriers, for example,* indicate that its intent was

to leave the filed tariff doctrine very much intact. Any

change in the law must therefore come from Congress,

not this court.

In an analogous context, the Supreme Court has

refused to overturn doctrine established prior to the

Motor Carrier Act which Congress did not expressly

abrogate. In Square D Co. v. Niagara Frontier Tariff

Bureau, 476 U.S. 409, 106 S.Ct. 1922, 90 L.Ed.2d 413

1986), the Court upheld its previous ruling in Keogh v.

Chicago & Northwestern Ry., 260 U.S. 156, 43 S.Ct. 47

67 L.Ed. 183 (1922). Under the “Keogh doctrine,” ship-

pers could not bring treble-damage antitrust actions

against carriers in connection with filed tariffs, though

governmental and injunctive antitrust actions against

See 49 U.S.C. § 10761(b), which provides that

‘tlhe Commission may grant relief from subsection (a) ot

this section when reliet is consistent with the public

interest and . .. transportation policy.” Contract carriers are

those carriers that, like Caravan, have established a contrac-

tual arrangement with a shipper and that must adjust rates

more quickly than the normal filing process permits.| "|

B-7

“concerted rate-making” activities were still available.

Answering the argument that the Keogh doctrine

should be overturned in light of Congress’s intent to

promote competition in the transportation industry

through the Motor Carrier Act, Justice Stevens wrote,

[W\e may assume that petitioners are correct in

arguing that the Keogh decision was unwise as a

matter of policy — but it nevertheless remains

true that Congress must be presumed to have

been fully cognizant of this interpretation of the

statutory scheme, which had been a significant

part of our settled law for over half a century,

and that Congress did not see fit to change it

when Congress carefully reexamined this area of

law in 1980.

Square D, 476 US. at 420, 106 S.Ct. at 1928.

The facts here present an even more persuasive case

tor deference. One of the Motor Carrier Act’s most

Significant changes creates an exemption from filing

requirements for contract carriers, evincing Congress's

desire that all other carriers should continue to adhere

to the filing requirements. Moreover, section 10761 (a)

and the filed tariff doctrine, integral as they are to

the publication and entorcement of reasonable, non-

discriminatory rates, are not so obviously unwise and

anti-competitive as Justice Stevens seems to suggest

the Keogh doctrine may be. Thus, following the

Supreme Court's lead in Square D, we are unwilling to

permit Supreme Beeft’s unreasonableness defense to

undermine the filed tariff doctrine.

B. NATIONAL INDUSTRIAL

TRANSPORTATION LEAGUE.

The Commission's advisory opinion in National Industrial

Transportation League (Ex parte MC-177) is inapposite to

B-8

this case. The Commission's expression of its decision

to allow equitable defenses in disputes before it regard-

ing the reasonableness of rates has, of course, no

binding effect upon this court. *

Instead, our decision is governed by our opinion in

Southern Pacific Transportation Co. v. City of San

Antonio. There, we overturned a district court’s stay of

an execution of judgment by two railroads seeking to

collect undercharges for shipments of coal to a City

power plant. The district court had granted the stay

pending the Commission's determination of the reason-

ableness of the railroad’s tiled rates. We stated,

The Interstate Commerce Act ... entails a

balanced and coherent system for the payment

and review of rates. The shipper is required to

pay the filed rate at the time of shipment but

may later seek review and reparations in the

1.C.C. The carrier, on the other hand, receives

assurance that payment will not be delayed

pending review; but the carrier must be prepared

to reimburse amounts later found to be

unreasonable.

748 F2d at 274.

Thus, our precedent declares that a carrier 1s entitled

to entorce the filed rates under the filed tariff doctrine

and to seek payment of undercharges in the district

court even while the reasonableness of the taritts is

challenged betore the Commission. The rule is neces-

sary to protect the filed tariff doctrine and its under-

See Pacific Gas & Elec. Co. v. Federal Power Comm'n, 506 F2d

33 DC Cir. 1974!. The court noted, “{A] general statement ot policy

only announces what the agency seeks to establish as policy

When the agency applies the policy in a particular situation, it

must be prepared to support the policy just as if the policy state-

ment had never been issued.” /c/ at 3& (footnote omitted)

B-9

lying policy of ensuring reasonable and non-discrimina-

tory rates.”

Our decision here is an application ot the same rule:

A shipper that pleads unreasonableness as a defense

cannot prevent enforcement of the filed tariff doctrine

or force the district court to stay proceedings and refer

the case to the Commission.® Any other decision

would constitute legislation on our part; it would

create an exception that swallows the doctrine and

thereby would vitiate a long-standing and notorious

policy which Congress has visited and left intact.

See id.; see also Regular Common Carrier Conference v.

United States, 793 F2d 376, 379 |D.C.Cir. 1986). There, the court

declared invalid a Commission regulation that would have allowed

motor carricrs to leave a “paper-trail” of negotiated tariffs with

shippers rather than file tariffs with the Commission. Judge {now

Justice) Scalia explained further the policy behind the requirement

that shippers and carriers adhere to the filed tariffs:

That requirement is utterly central to the [Interstate

Commerce| Act. Without it, for example, it would be

monumentally difficult to enforce the requirement that

rates be reasonable and non-discriminatory, see 49 U.S.C.

$§ 10701 & 10741(b), and virtually impossible for the pu lic

to assert its right to challenge the lawfulness of existing or

proposed rates, see 49 U.S.C. §§ 10708({a)(1! & 11701 (a).

Supreme Beet’s attempt to distinguish Southern Pac. Transp.

Co. v. City of San Antonio is unpersuasive. It observes that the case

involved the reasonableness of railroad rates rather than motor

carrier rates and points out that the Commission has long reviewed

the reasonableness of railroad rates, while only recently having

decided, via its advisory opinion in National Indus. Transp. League,

to review the reasonableness of motor carrier rates. This distinction,

however, only serves to strengthen the precedential value of

Southern Pacific in the present context. Again, the rule stated in

that case is that a court may not stay enforcement of the filed taritt

rate on the ground that the shipper has pled unreasonableness or

sought a hearing before the Commission. Thus, regardless of

whether the Commission is willing to consider the reasonableness

of motor carrier or railroad rates, the court may not put the brakes

on the filed tariff doctrine.

B-10

C. SEABOARD SYSTEM.

Supreme Beef would also find support for its referral

argument in Seaboard System R.R. v. United States, in

which the Eleventh Circuit upheld the Commission’s

ruling in a negotiated rate case that a carrier had

engaged in an unreasonable practice by misquoting

rates to a shipper. The Commission therefore refused to

permit the carrier to collect for undercharges. The

Commission found authority for its ruling in two dif-

ferent statutes: 49 U.S.C. § 10701(a), which provides

that a “practice related to transportation or service

provided by a carrier subject to the jurisdiction of the

Interstate Commerce Commission under Chapter 105

of this title must be reasonable,” and 49 U.S.C. § 10704

a)(l!, which authorizes the Commission to order a

carrier to stop a violation.

Supreme Beet thus contends that because the Com-

mission is willing to tind that misquotation constitutes

an unreasonable practice, and because the Eleventh

Circuit has recognized the Commission’s authority to

make such findings, this court also should recognize

that authority and hold that it was error for the district

court to refuse to submit the case to the Commission

in the face of Supreme Beet’s allegations of misquota-

tion and unreasonableness.

However, Supreme Beet does not tell the whole story

ot Seaboard System. Central to that case was the Com-

mission’s finding that the tariff filed with the Commis-

sion and sought to be enforced was not “plain to the

ordinary user.” 794 F2d at 637 The importance of this

additional tinding cannot be understated; under the

tiled tariff doctrine, shippers are charged with construc-

tive knowledge of the tariffs which the carrier has filed

with the Commission. See Maxwell, 237 U.S. at 97, 35

S.Ct. at 495. Thus, it is only when that tariff is unclear

B-11

or ambiguous to the ordinary user that the Commis-

sion is willing to relax the filed tariff doctrine and

consider the possibility that misquotation might be an

unreasonable practice.

Supreme Beef has not claimed nor offered any evi-

dence to show that the rates which Caravan had filed

with the Commission were not plain to the ordinary

user. Seaboard System therefore offers no support for

its contentions of unreasonableness and does not repre-

sent a weakening of the filed tariff doctrine.

ITI.

ADDITIONAL BEEFS.

Supreme Beef charges that the district court’s sum-

mary judgment order was in error on two additional

grounds. First, it argues that the trustee’s cross-motion

for summary judgment was untimely in light of the

district court’s having set the deadlines for such

motions, pursuant to Fed.R.Civ.P. 16(b), ac December

15, 1987. The trustee filed his cross-motion on Dec-

ember 29, 1987. Second, it asserts that its motion for

reconsideration presented triable issues of fact as to

Caravan’s special status as a carrier of government

goods.

In making this first argument, Supreme Beef ignores

the fact that a district court may grant summary judg-

ment for the non-movant sua sponte. We have noted

that when “one party moves for summary judgment

the district court, in an appropriate case, may grant

summary judgment against the movant, even though

the opposite party has not actually filed a motion for

summary judgment.” Landry v. G.B.A., 762 F2d 462,

464 (5th Cir. 1985) (citing 1OA C. Wright, A. Miriler &

M. Kane, Federal Practice & Procedure: Civil 2d

B-12

S$ 2720)). The cited treatise explain{s] that granting

summary judgment in favor of the non-moving party is

in keeping with the objective of Rule 56 to expe-

dite the disposition of cases, and, somewhat

more remotely, with the mandate of Rule 54(c!

requiring the court to grant relief to which a

party is entitled ‘even if the party has not

demanded such relief in his pleadings.’

10A C. Wright, A. Miller & M. Kane, Federa/ Practice &

Procedure: Civil 2d § 2720 at 33 (quoting Fed.R.Civ.P.

54(c}). We see no reason why the same reasoning should

not apply in a situation where, as here, the non-movant

has tailed to meet a motion deadline.

Second, Supreme Beef makes the argument that had

the district court considered the fact that Caravan held

a Master Certificate of Public Convenience exempting

it, as a carrier of government goods, from normal filing

requirements, the court then would have had to en-

force the negotiated rate rather than the filed rate.

However, Supreme Beef failed to call the court’s atten-

tion to this argument in its motion for summary judg-

ment. It raised the point for the first time in its motion

tor reconsideration.

We note that a motion to reconsider or amend should

not be employed “to introduce evidence that was avail-

able at trial but was not proffered, to relitigate old

issues, to advance new theories, or to secure a rehearing

on the merits.” Fontenot v. Mesa Petroleum Co., 791

F2d 1207, 1219 (5th Cir. 1986). Our review gf the record

indicates that Supreme Beef made no showing that it

had newly discovered the evidence it presented

regarding the government contracts, nor did it bring

See 49 U.S.C. § 10721

B-13

that evidence to the court’s attention prior to summary

judgment, or marshal legal support for its government-

exemption claim.

Thus, Supreme Beef’s motion for reconsideration was

nothing more than an attempt to present a new legal

theory to the court on the basis of affidavits it already

had submitted with its original summary judgment

motion. The district court therefore properly denied the

motion for reconsideration.

lV.

CONCLUSION.

Supreme Beet has tailed to persuade us that we

should weaken the filed tariff doctrine by holding that

a detense of unreasonableness will trigger a referral to

the Commission. Nor has it demonstrated that the

district court acted improperly in granting summary

judgment tor Caravan and denying the motion for re-

consideration. Hence, the district court’s summary

judgment order is in al! respects AFFIRMED.

—_ se _

- in

. ee =e oe

5 L

C-1

APPENDIX C

ORDER DENYING RECONSIDERATION

(United States District Court —

Northern District of Texas — Dallas Division!

\Filed March 4, 1988)

{ROBERT YAQUINTO, JR., TRUSTEE FOR CARAVAN

REFRIGERATED CARGO, INC., Plaintift, v. SUPREME

BEEF PROCESSORS, INC., Detendant — CA 3-87-2274-R;

Entered on Docket pursuant to ER.C.P. Rules 58 and 79a)

On January 20, 1988, this Court entered its Memo-

randum Opinion and Order granting Plaintiff's motion

for summary judgment and denying Defendant's cross-

motion for summary judgment. This Court entered a

Final Judgment in accordance with that opinion, and

Defendants have filed a “motion to reconsider.” ' This

motion will be DENIED.

First, to the extent Defendant reargues its position

that the filed tariff doctrine is subject to equitable

modification, this Court remains unpersuaded.

Second, to the extent Defendant raises tor the first

time its argument that the shipments in question were

conducted pursuant to a statutory exemption to the

tiled tariff doctrine, this Court considers the argument

improper. Detendant has completely changed its tactic

in defending this lawsuit after entry of final judgment.”

' This Court may properly entertain Detendant’s motion as a

motion to alter or amend a judgment under Rule 59e!,.

> Detendant has submitted an affidavit purporting to illustrate

that Caravan’s activities were conducted pursuant to 49 U.S.C

§ 10721, and that no tariffs were required to be filed.

C-2

Nowhere in its brief supporting its motion does

Defendant explain why this new theory was not previ-

ously offered to the Court. See e.g., Frito-Lay of Puerto

Rico, Inc. v. Canas, 92 ER.D. 384, 391 (DPR. 1981)

Third, Defendant’s argument regarding its government

exemption does not appear to have any merit. This Court

is persuaded by Plaintiff's brief in response that the ship-

ments in question did not fall into any government

exemption. Consequently, even if Defendant’s new

theory were properly before this Court, it would

not convince this Court that the prior judgment was

erroneous.

Accordingly, it is the ORDER of this Court that

Detendant’s motion for reconsideration is hereby DENIED.

SIGNED this 4th day of March, 1988.

s/ JERRY BUCHMEYER

UNITED STATES DISTRICT JUDGE

D-1

APPENDIX D

MEMORANDUM OPINION AND ORDER

[OF JANUARY 20, 1988}

(United States District Court —

Northern District of Texas — Dallas Division!

(Filed January 20, 1988)

(ROBERT YAQUINTO, JR., TRUSTEE FOR CARAVAN

REFRIGERATED CARGO, INC., Plaintiff, v. SUPREME

BEEF PROCESSORS, INC., Defendant — CA 3-87-2274-R)

This is a negotiated rate case in which Plaintiff

Robert Yaquinto, Jr., as Trustee for the motor carrier

Caravan Refrigerated Cargo, Inc. |Caravan”} seeks to

recover on an undercharge for shipments of beef for

Defendant Supreme Beef Processors, Inc. |“Supreme”’).

Now before this Court are the cross motions for sum-

mary judgment filed by Supreme and Caravan. Both

parties agree that this case is now ripe for disposition

on summary judgment. For the reasons discussed below,

Supreme’s motion will be DENIED and Carz | u's

motion will be GRANTED.

I].

The facts present an archetypical negotiated rate case.

Supreme is the largest supplier of meat to the United

States Department of Defense and a major supplier to

the United States Department of Agriculture. Supreme’s

sales to government agencies are obtained on a low bid

basis. Caravan has provided Supreme refrigerated trans-

port services for several years prior to its bankruptcy

filing. According to Supreme, it had a longstanding

'D-2

agreement with Caravan that Caravan would “meet or

beat” any motor carrier rate quoted by a competing

carrier. This agreement enabled Supreme to rely on low

cost transportation for purposes of preparing its bids. In

return, Caravan was guaranteed a large volume of ship-

ping business trom Supreme

During their relationship, Supreme and Caravan con-

tinually negotiated the transportation rates to assure

their competitiveness with other carriers. Caravan

invoiced Supreme for the agreed rates and Supreme

.ccepted and paid the invoices. Caravan however, did

sot have all these rates filed with the Interstate Com-

merce Commission (“ICC”). These filed rates were

higher than those actually negotiated and charged to

Supreme. From the summary judgment record it appears

that Supreme was unaware of the variance between the

negotiated rates and the rates on file with the IC¢

Moreover, it is undisputed that Supreme relied upon

re juoted rates in using Cdravan as 1ts Carrier

Caravan filed a contract carrier application with the

'CC in order to facilitate the handling of traffic tor

Supreme and to enable them to negotiate or set rates

with more flexibility. Caravan’s bankruptcy occurred

prior to the contract carrier authority being approved

\fter Caravan’s bankruptcy filing, Trustee sought to

llect from Supreme the filed tariff rates for those

periods Caravan did not nave the actual, negotiated

rates on file. Both parties admit this amount to

be $70,227.08. Supreme has defended and counter-

claimed on the basis of its reliance upon the negotiated

. >

TAtCS

Supreme’s aftidavits support its ¢ ntentton that it was unaware

rates on file. Caravan has responded without attidavits or

irgument disagreeing with Supreme’s contention, relying instead

D-3

III

The sole legal issue presented by the cross motions 1s

whether the filed tariff rates were superseded by

Defendant's good fa.th reliance upon a lower negotiated

rate. Defendant admits that the basic rule in this area

is that tariff rates govern; this rule has now become

known as the “Filed Tariff Doctrine.” Nevertheless,

Defendant relies upon the ICC's advisory opinion of Ex

Parte No. MC-177 in which the ICC stated that equit-

able defenses can be used to ameliorate the harsh ettect

of a literal application of the Filed Taritt Doctrine. In

that opinion, the ICC stated that:

The question that we are addressing here is

whether a shipper must pay the rate established

in a tariff where a motor common carrier has

negotiated a lower rate and has indicated that

the negotiated rate would be the one charged

and therefore presumably filed as a taritt). We

believe, in the highly competitive motor carrier

industry and economy in general, equitable

defenses to rigid application of filed tariff rates

should be available on a case-by-case basis and

that our unreasonable practice jurisdiction

authorizes such an approach.

Ex parte No. MC-177.*

Title 49 U.S.C. § 10761 states that a common carrier

subject to the jurisdiction of the [CC under 49 U.S.C

§ 10501 and which has filed a tariff tor a service “may

not charge or receive a different compensation for that

’The unreasonable practice jurisdiction to which the ICC reters

apparently is based on 49 U.S.C. § 10701 \a which states that

A rate relating to transportation or service by a carrier

subject to the jurisdiction of the Interstate Commerce

Commission under Chapter 105 of this title must be rea

sonable

D-4

transportation or service than the rate specified in the

tariftt ” The rationale behind the Filed Taritt

Doctrine is to prevent large shippers, such as Supreme,

trom exacting discriminatory shipping rates from car-

riers to the competitive disadvantage of smaller ship-

pers. Consequently, strict adherence to the doctrine is

necessitated by its intended effect:

The rate of the carrier duly tiled is the only

lawful charge. Deviation from it is not permitted

upon any p.etext. Shippers and traveler@ are

charged with notice of it, and they as well as the

carrier must abide by it, ... ignorance or mis-

quotation of rates 1s not an excuse for paying or

charging either less or more than the rate filed.

This rule is undeniably strict and it may work

hardship in some cases, but it embodies the

policy which has been adopted by Congress in

regulation of interstate commerce in order to

prevent unjust discrimination.

Louisville and Nashville R.R. Co. v. Maxwell, 237 U.S.

94 (1915).

Numerous cases have applied the Filed Taritt Doc-

trine to allow recovery by a carrier for the filed tarift

rate notwithstanding the existence of a lower, nego-

tiated rate. See e.g., Consolidated Freightways Corp. v

Terry Tuck, Inc., 612 F2d 465, 466 (9th Cir.), cert dend

447 U.S. 907 (1980); Aero Trucking, Inc. v. Regal Tube

Co., 594 E2d 619, 621-22 (7th Cir. 1979); Southern

Pacific Transportation Co. v. Campbell Soup Co., 455

F2d 1219. 1221 (8th Cir. 1972). Moreover, courts have

also held that equitable defenses, such as fraud and

estoppel, cannot be used by a shipper to circumvent the

Filed Tariff Doctrine. As the Fifth Circuit has noted

“lelquitable considerations cannot be invoked as

the basis for an estoppel to collect |authorized tarift

charges. Filed tarifts are public information

D-5

which shippers should be aware.” I/]inois Central Gulf Rail.

road Co. v. Golden Triangle Wholesale Gas Co., 586 F.2d

588, 592 (5th Cir. 1978). See also, Aero Trucking, Inc. v.

Regal Tube Co., 594 F.2d 619 (7th Cir. 1979); Chicago, Bur-

lington & Quincy Railroad Co. v. Ready Mixed Concrete

Co., 487 E2d 1263, 1266 (8th Cir. 1973); Wade, Hidden Lia-

bility for Freight Bills, Mo. B.J., April-May 1987, at 175.

Defendant argues that the Motor Carrier Act of 1980

displayed a congressional intent to allow equitable modifi-

cation of the Filed Tariff Doctrine. The Supreme Court,

however, has already rejected this argument stating that

“The legal rights of shipper as against carrier in respect

to a rate are measured by the published tariff. ... The

rights as defined by the tariff cannot be varied or en-

larged by either contract or tort of the carrier.” Square D

Co. and Big D Building Supply Corp. v. Niagara Fron-

tier Tariff Bureau, Inc., 106 S.Ct. 1922 (1986).

Likewise, Defendant's argument that the IC C's advisory

opinion in MC-177 is binding upon this Court is totally

without support. First, MC-177 is merely an advisory

opinion and as such provides no precedential value. Pacific

Gas & Electric Co. v. EP C., 506 F.2d 33 (D.C.Cir. 1974).

Second, and more fundamentally, an administrative agency

cannot overrule the statutory requirements to publish and

charge rates as set forth in tariffs. Congress was fully cog-

nizant of the well established interpretation of § 10761

when it enacted the Motor Carrier Act of 1980, and yet

Congress chose not to amend that section.

Finally, this Court disagrees with Defendant’s equit-

able argument. The equities in this case clearly favor

application of the Filed Tariff Doctrine. Tariffs have the

force and effect of law. TADMS, Inc. v. Consolidated

Freightways, 619 F Supp. 385 (C.D.Cal. 1985).

Defendant is charged with notice of the properly filed

tariffs. Consequently, its argument of ignorance is un-

availing. Were this Court to excuse Defendant from

D-6

compliance with § 10761 it would be emasculating that

section’s ability to prevent discriminatory allowances

by carriers. Moreover, § 10761(b) already provides for

equitable relief in the form of the ICC’s ability to grant

applications for contract carrier status in exceptional

situations. Defendant should have waited until Plaintiff

completed such an application before relying upon nego-

tiated rates lower than those appearing in the filed tariffs.

Consequently, this Court holds that no 5asis exists

tor excusing Defendant from its obligation to pay Plain-

tiff at the filed tariff rates. Parties may not enter into a

valid contract for transportation at a rate lower than

that contained in a published tariff. This result is

affected by neither estoppel, misquotation or fraud of

the carrier. See also, Motor Carrier Audit & Collection

Co. v. United Food Service, CA 87-C-298 (D.Col. May 4,

1987}. Since Defendant’s affirmative defenses and coun-

terclaims have no merit, Plaintiff is entitled to judg-

ment on its claim for the undercharges. Additionally,

Plaintiff is entitled to recover prejudgment interest on

its claim. Southern Pacific Transportation Co. v. San

Antonio, 748 F.2d 266 (5th Cir. 1984).

Accordingly, this Court ORDERS the following:

1. Defendant’s motion for summary judgment is

DENIED.

2. Plaintiff’s motion for summary judgment is

GRANTED.

3. Plaintiff is directed to submit a proposed final

judgment to this Court within ten (10) days

from the date of this Order.

SIGNED this 20 day of January, 1988.

/s/ JERRY BUCHMEYER

UNITED STATES DISTRICT JUDGE

: E-1]

APPENDIX E

MEMORANDUM OPINION AND ORDER

[OF NOVEMBER 13, 1987}

(United States District Court —

Northern District of Texas — Dallas Division!

(Filed November 13, 1987!

\IN RE: CARAVAN REFRIGERATED CARGO, INC. Debtor,

ROBERT YAQUINTO, JR., TRUSTEE FOR CARAVAN RE-

FRIGERATED CARGO INC., Plaintiff, v. SUPREME BEEF

PROCESSORS, INC., Defendant — CA 3-87-2274-R; Entered

on Docket 11-13-87 pursuant to ER.C.P Rules 58 and

79a)

This is a case involving a dispute as to the amount

owed by Defendant, Supreme Beef Processors, Inc.

\“Supreme”}, to Debtor Caravan Refrigerated Cargo,

Inc. (“Debtor” or “Caravan”|, brought by the Trustee in

bankruptcy. Supreme and Debtor had a contractual rela-

tionship whereby Debtor would transport Supreme’s

beet products. The current dispute concerns the proper

charges for the transportation of Supreme’s products by

Debtor. Essentially, the question turns on whether

Debtor was bound by an alleged agreement which gave

Supreme a discount rate or if Debtor is entitled to

recover from Supreme for the higher, actual rates on

tilie during the relevant time period. Now before this

Court is Supreme’s motion for referral of this essential

question to the Interstate Commerce Commission

(“ICC”). This motion will be DENIED.

Citing the ICC’s specialized competence in matters

pertaining to the reasonableness of transportation rates,

Supreme argues that referral is mandatory. In support of

E-2

this proposition, Supreme refers to several cases discus-

sing the wisdom of referral in certain instances, and to

28 U.S.C. § 1336(b).' After reviewing these authorities,

however, this Court is not convinced that referral is

mandatory in this case. Moreover, in its discretion, this

Court also determines that referral of this matter

would not be in the best interests of justice or effi-

ciency in light of the questions involved and the

amount in controversy. This Court feels amply qualli-

fied to render a decision on the matter unaided by a

prior ICC determination.

Accordingly, it is the ORDER of this Court that

Defendant Supreme’s motion for reterral to the ICC

should be, and is hereby DENIED.

SIGNED this 13th day of November, 1987.

‘s/ JERRY BUCHMEYER

UNITED STATES DISTRICT 'UDGE

' In particular, Supreme relies upon New Orleans Vv. Southern

Scrap Material Co., Ltd., 704 F.2d 755 (5th Cir. 1983). In that case

the panel stated that “t]he primary jurisdiction doctrine requires

that issues of transportation policy which ought to be considered by

the Commission in the interests of a uniform and expert admini-

stration of the regulatory scheme laid down by (the! Act be sub-

mitted initially to the Commission for determination.” /d at 758

This Court, however, does not feel that the question of whether

Debtor was bound by the alleged agreement involves a policy

determination that should first be considered by the ICC.

F-]

APPENDIX F

ORDER DENYING DEFENDANT SUPREME BEEF

PROCESSORS, INC.’S MOTION TO TRANSFER TO

THE INTERSTATE COMMERCE COMMISSION

‘United States Bankruptcy Court —

Northern District of Texas — Dallas Division!

_\Entered July 11, 1987)

IN RE: CARAVAN REFRIGERATED CARGO, INC., Debtor.

ROBERT YAQUINTO, JR., TRUSTEE FOR CARAVAN RE-

FRIGERATED CARGO, INC., Plaintiff, vs. SUPREME BEEF

PROCESSORS, INC., Detendant — Bankruptcy Case

No. 383-0-1146-M; Adversary No. 385-3755)

Now on this 25th day of June, 1987 came on for con-

sideration Defendant Supreme Beef Processors, Inc.’s

Motion To Transfer To The Interstate Commerce Com-

mission and Plaintiff Robert Yaquinto, Jr., Trustee for

Caravan Retrigerated Cargo, Inc.'s Opposition thereto.

Having considered said Motion and brief in sup-

porting thereof, Plaintift’s opposition thereto, and oral

argument, the Court finds that a jury has been de-

manded and that the Interstate Commerce Commis-

sion’s findings would be advisory only, and would not,

in all likelihood, ever reach the jury. Therefore, to defer

to the Interstate Commerce Commission would merely

delay the resolution of this matter.

The Court further finds that deferral to the Interstate

Commerce Commission could delay ultimate resolu-

tion of this matter a considerable period of time; this

case is the last matter to be wound up in the Caravan

estate, which has been pending since August 30, 1983.

F-2

Accordingly, it is ORDERED that Defendant’s Motion

be and is hereby DENIED.

s/ Judge Robert C. McGuire

G-1

APPENDIX G

(A)

CASES REFERRED BY COURT DECISION TO THE INTER-

STATE COMMERCE COMMISSION FOR DECISION ON

ISSUES OF UNREASONABLENESS OF MOTOR CARRIER

PRACTICES INVOLVING MISREPRESENTATION

ICC DOCKET NO

MC-C-10867

MC-C-10928

MC-C-1096]

MC-C-10962

MC-C-10970

MC-C-10983

MC-C-10988

MC-C-10989

MC-C-10991

MC-C-10995

MC-C-30005

MC-C-30007

OF RATES (1984 TO PRESENT)

SHIPPER(S)

Lady Carol Dresses

Lady Carol Petites

Lorac Originals

Rhapsody Blouse

Boise Cascade Corp.

Primary Steel, Inc.

TMBR Drilling

Earle Jorgensen

Fort Howard Paper

Toastmaster, Inc.

Cooper Industries

Wakefern Food Corp.

Anderson, Clayton Co.

Anderson Bros.

Sovereign Oil Co.

Auto Specialties Manutacturing Co.

Bendix

GAF

Markel

Commonwealth Glass Products

MC-C-30013

rrr

—-

STL I ER )

A.J. Hollander

A&A International

Allen Sugar Company

Banks Lumber Company

Becor Western, Inc.

Border Truck Brokerage

The Burke Company

Central Beef Corp.

Central National Gottesman

Cleveland Steel

ConAgra, Inc.

Dinner Bell Foods, Inc.

Feuer Leather Corp.

Forman Distributing Company

Frank J. Schwab Associates

Nestle Enterprises

Furman Lumber, Inc.

International Minerals

|&M Sales

M. Aschheim Company

Moller Steamship Co.

and Maersk Lines Limited

Marie’s Refrigerated Dressings

Ply-Gem Manufacturing Corp.

Quemetco, Inc.

Quin-T Corporation

Southern Ohio Beet Inc.

SKF Industries, Inc.

Stauffer Chemical Company

Tarkett, Inc.

Thypin Steel Company

Twin City Hide, Inc.

Wheeling Brake Block

ICC DOCKET Ni

MC-C-30014

MC-C-30015

MC-C-3001 7

MC-C-30019

MC-C-30021

MC-C-30022

and 30023

MC-C-30025

MC-C-30026

MC-C-30027

MC-C-30032

MC-C-30034

MC-C-30039

MC-C-30040

MC-C-30041

MC-C-30043

MC-C-30051

MC-C-30054

MC-C-30055

MC-C-30056

MC-C-30058

MC-C-30059

Serif a. oa

sii

Von Hottman Press

Freeman Products

Trailer Marine Transport Corp

Baldor Electric

Sewell Plastics

Artex International

Bryan Foods, Inc.

Manufacturers Consolidation

Service, Inc.

Caloric Corporation

Sewell Plastics

Mitchell Milling

Don Fisher Sales

Bruard’s, Inc.

Dennis K!_in

Spectro Alloys

Sipi Metals Corp.

Continental Holding Corp.

Injected Rubber

Commercial Cold Storage, Inc.

Otis Elevator

Pickwick Internat’!

Musicland Group

Bunge Edible Oil

G-4

ICC DOCKET NO SHIPPER(S

MC-C-30060 Aeroquip Corp.

MC-C-30061 Hiram Walker

MC-C-30062 American Industries

MC-C-30063 W.R. Grace & Co.

MC-C-30064 Conagra Poultry

MC-C-30066 Synthetic Products

MC-C-30069 Yangming Marine Line, et <

MC-C-30072 E.L. Mustee & Sons

MC-C-30075 Fort Howard Paper

VMIC-C-300 76 Ottawa Strong

Sherex

MC-¢ 077 ning

Mi Meta

Vic -( Q7? E

MA Oc

ICC DOCKET NO.

MC-C-30087

MC-C-30088

MC-C-30089

MC-C-30095

MC-C-30096

MC-C-30105

MC-C-30106

MC-C-30107

MC-C-30110

MC-C-30106

MC-C-30120

MC-C-30122

No. 40059

No. 10942

No. 10951

No. 10955

No. 30000

No. 30008

No. 30010

No. 30024

No. 30045

No. 30046

SHIPPER(S;

Goodmark Foods

Royal Oak

Anchor Glass Cont.

General Mills

Star Bronze

Ideal Chem. Co.

Fisher Mills, Inc.

Iron Mountain Ore Co.

Stanek Distribution Co.

Navistar

Zeidel Explorations

Georgia Freight Bureau

Zenith Electronics

Atlas Foundry & Machine Company

Liberty Liquors Co.

Anderson Clayton

Zayre Corp.

Ron Miller Assoc.

Kaiser Aluminum

& Chemical Corp.

Columbian Rope Co.

Gencorp, Inc.

Product Components, Inc.

\ ~

DOCKET NO

. 30048

. 30071

. 30074

. 30100

. 30103

. 30109

. 30112

. 30115

. 30124

. 30127

. 30130

. 30133

. 30134

. 30137

. 30139

. 30140

. 30143

. 30148

Ai wed

Lucky Stores, Inc

W.A. Krueger Co.

J. W.S. Delavau Co., et al.

Ottawa Strong & Strong, Inc.

Transpo International, Inc.

KR Newsprint Co., et al.

Georgia Freight Bureau, Inc.

MCI Telecommunications Corp.

The Pillsbury Company

Farrell-Calhoun Paint, Inc.

Sunwise Corp.

Manville Sales Corp.

Thomas J. Lipton, Inc.

B&B Beverage Co.

Ideal Chemical & Supply Company

Sunshine Mills, Inc.

Utica Packing Co.,

Theodoredis & Sons, Inc.

Falcon Transport, Inc.

G-7

(B)

EXAMPLES OF REPORTED COURT DECISIONS REFERRING

CASES TO THE INTERSTATE COMMERCE COMMISSION

FOR DECISION ON ISSUES OF UNREASONABLENESS OF

MOTOR CARRIER PRACTICES INVOLVING

MISREPRESENTATION OF RATES

ARKANSAS: Rebel Motor Freight v. Specialty Oil

Company, LR-C-87-565, E.D. AR W.D. 10/14/88

(€ 83,316)!

D.C.: Maislin Transport v. House of Wines, C.A.

COLORADO: Delta Traffic Services v. Marine Lumber

Company, 483 ESupp. 734 (D.Colo. 1987)

GEORGIA: Delta Traffic Services (Oneida) v. Knight-

Ridder Newspaper Sales, Inc., 691 ESupp. 339

(N.D.Ga 1988)

ILLINOIS: Jn re Tobler Transfer Bankr. Christison.

Trustee v. Caterpiller, No. 85-00596 74 B.R.373

(Bankr. C.D. IL May 29, 1987)

LOUISIANA: Rebel Motor Freight, Inc. v. Southern

Beverage Co., Inc., C.A. No. 87-261-B (M.D. LA

October 6, 1987); 673 ESupp. 785 (M.D. LA 1987]

(€ 83,363)

MICHIGAN: In re: Tucker Freight Lines, Tucker v.

United Exposition, |Dist. Ct. atfirmed Bankr. Ct.

referral to ICC, April 14, 1988), Bky. No. HK 83-2391,

Adv. No. 85-0631, 85 Bankr. 426; D.C. WD. Mich...

NEW JERSEY: Oneida v. The Ormond Shops, et al.,

No. 85-03606, Adv. No. 87-0527 et al., Bankr. Ct. NJ,

ee = =—E—l(

NORTH CAROLINA Vf

Co. (RTC) v. Famu

(W.D. NC 1987

OKLAHOMA In :

(Bankr. W.D. Okla 1987

PENNSYLVANIA: Bremarz

Sales, Geneo, H.&H

Prvor Corp., Sorce, In ;

W.D.PA, 69 B.R. 356, January 14 87 |"

C-30034, April 14, 1988

Breman’s Exp v. Mit

ICC decision, October 13 SR fs

(Bankr. W.D.PA 1987) Bky. No. 84

MC-C-30032, October 14 Is 7

WISCONSIN G. M.W

No. 85-C-339-S (W.D. WI December ‘

\C)

COURT DECISIONS ADOPTING INTERSTATE COMMERCE

COMMISSION FINDINGS OF UNREASONABLENESS OF

MOTOR CARRIER PRACTICES INVOLVING MISREP-

RESENTATION OF RATES FOLLOWING REFERRAI

_IMGOCrFr

( 4iixCi

No. MO-85-CA-20 (WD. Tex.. Sept

Af scelin Inman

YVildd Aaaa Aiita 4 a |

No 85-002 | WD AY uly 7 me be

LEXIS 10551

ivid i

‘ . ‘

Y) LYS 4] is ~

G-9

Deita Traffic Services v. Marine Lumber Co., No. 86-

1124-MA \D. Or, January 24, 1989)

Bremans Express v. Mitchell Milling, et al. (1989 Fed.

rschein Bros. Truck Lines v. Toastmaster, Inc. (1989

Fed. Car Cases € 83,439) N_D III., 1988)

H-]

APPENDIX H

(A)

COURT DECISIONS DENYING REFERRAL OF UNREASON-

ABLE PRACTICE ISSUES TO THE INTERSTATE COMMERCE

COMMISSION INVOLVING MISREPRESENTATION OF RATES

CALIFORNIA: West Coast Truck Lines v. Kaiser

Aluminum & Chemical, No. C-87-0048 (N.D. CAL

Milne Truck Lines & Consolidated/Mark v. American

Licorice Co., C-88-1420 DLJ, D.C. N.D. Cal., Dec-

ember 23, 1988

Wescar Freight Systems v. Conagra, Inc., C-88-4664

SAW. D.C.N.D. Calit. January 26, 1989

COLORADO: Motor Carrier Audit & Collection

(Transpo. Int'l) v. United Food Service, CA No. 87-C-

298 |D COLO. May.4, 1987) (1987 U.S. Dist. LEXIS

CONNECTICUT: Oneida Motor Freight Inc., Debtor

and Delta Traffic Service, Inc. v. Georgia Pacific

Corp., — B-87-482 (DCT. December 2, 1987]

Delta Traffic Services (Oneida MF) v. Cuisinarts, Inc.,

CA-H-87-424 |AHN]} (D.Conn. October 28, 1987)

Delta Traffic Services and Campbell 66 Express v.

Purdue Frederick Co., Civ. No. B-88-196 |WW.E.)}, D

Conn., March &, 1989

GEORGIA: Feldspar Trucking Company v. Greater

Atlanta Shippers Assn., No. C-87-575A, (ND GA Atl.

Div. September 29, 1987), 683 FESupp. 1375 (1987

s are to MOTOR CARRIER CASES |CCH

H-2

ILLINOIS: Motor Carrier Audit & Collection v. Casio,

CA No. 6124 (N.D. IL October 27, 1987)

Motor Carrier Audit Collection v. Medline Ind., CA

No. 6123 (N.D. IL November 2, 1987)

Motor Carrier Audit Collection v. Portion Packaging,

Inc., CA No. 87-C-6108 (N.D. Ill. April 22, 1988)

Motor Carrier Audit Collection v. C&D Charter

Power Sys., No. 88-C-3161 (N.D. Ill. October 27, 1988}

Transpo. Int’l. v. Bunge Edible Oil Corporation,

No. 86-C-9330 (N.D. Ill. May 11, 1987, aff’d. 87-1907,

7th Cir. July 27, 1987)

MICHIGAN: IMFS, Inc. v. Nekoosa Papers, Inc.,

No. G86-355 (W.D. Mich., August 28, 1986)

MISSOURI: Campbell 66 v. Transcrit Corp., 86-01697-

S-1-11, 88-205-S-1-11, June 1, 1988

MINNESOTA: Total Transportation, Inc. v. Armour &

Co., Bky 4-85-1909, Adv. 4-87-233, (D. Minn., 4th

Div.), March 18, 1988 84 Bankr. 5909 (§ 83,369)

v. Portion Packaging, Inc., C.A. No. 6108, N.D. IL,

E. Div. April 22, 1988

v. BTS Transport. Services, Adv. 4-87-269 (April 8,

v. Land O'Lakes, Inc., Adv. 4-87-227, Bky. Ct.

Minn., August 23, 1988 (€ 83,403)

v. Assoc. Milk Producers, Adv. 4-87-215 + 276,

Indianhead Truck Lines v. Miles Home Div. of

Insileo, Bky 4-84-2291, Adv. No. 4-86-325, B.C. Minn.,

September 15, 1987 (§ 83,372)

MISSISSIPPI: Delta and Dudley Trucking Company v.

Armstrong World Industries, CA No. J88-0099, S.D.

Miss., Jackson Div., November 4, 1988

H-3

NEW JERSEY: Oneida Motor Freight Inc., Debtor and

Delta Traffic Service, Inc. v. Felsway Corp., Adv

No. 87-0513

v. C&A Wallcoverings — 87-0661

v. The Ormond Shops — 87-0627

(Bankr. NJ October 19, 1987) (€ 83,346

Oneida Motor Freight Inc., Debtor and Delta

Service, Inc. v. Ormond Shops, Adv. No. 87-052

v. Thomas J. Lipton, Adv. No. 87-0642

v. Lionel Leisure, Adv. No. 87-0664

v. C&A Wallcovering, Adv. No. 87-066!

(Bankr. Ct., D.NJ September 29, 1988! € 83 42

Reversed on reconsideration and reterred ¢

February 17, 1989

NEW YORK: Delta Traffic Service & Oneida MF

Appco Paper & Plastics Corp., CV-87-2325, EDN

November 2, 1988 (1988 U.S. Dist. LEXIS 132

({ 83,426) (Appeal Pending, 2nd Cir. Docket N

9057)

Delta Traffic Service (Oneida) v. Coffee Holding

87 CV2011, E.D. N-Y., June 3, 1988 (€ 83.394

NORTH CAROLINA: In re: Carolina Motor Expr:

Inc., Langdon M. Cooper, Trustee and Mark a

Assoc. of NC v. California Consolidated Ent. — Adv

No. 86-0498 (Bankr. W.D.N.C. March 25, 1987) 78

BR.773

McLean Trucking Co. v. Allied Business Forms, C-B

86-023, Adv. 88-042, (Bankr. WD. N.C., Charlotte

Div.), April 28, 1988 ({ 83,378)

H-5

Delta Traffic Service (One-Way Cartage System) v.

Texas Cartage Terminal Warehouse, N.D. TX, Dallas

Div. CA 3-86-2904-D, June 2, 1988 ({ 83,384)

UTAH: Delta Traffic Service v. Sysco Intermountain

Food Service, CA No. 87-C-0345 (C. D. Utah October

30, 1987) (After Trial on the Merits, Ct. dismissed the

complaint, Jarch 27-30, 1989, Written Opinion to

follow)

WISCONSIN: G.M.W. Inc. v. Certified Parts Corp.,

No. 86-1086 (D. WI December 18, 1986) 135 Wis. 2d

503, 400 NW 2d 512 (C.T. App. 1986)

(B)

COURT DECISIONS REJECTING ICC FINDINGS OF UN-

REASONABLE PRACTICES INVOLVING CARRIER

MISREPRESENTATION AS NON-BINDING

INE Ltd. v. Spectro Alloys Corp., 690 FE Supp. 808 (D.

Minn., 1988)

Delta Traffic Service, Inc. v. Synthetic Products Co.,

Pongetti v. Baldor Electric Co., et al. (1988 Fed. Car.

Motor Carrier Audit & Collection Co. v. Baldor Electric

Co., No. CA3-85-2002R (N.D. Tex., July 27, 1988)

Orscheln Bros. Truck Lines v. Zenith Electric Corpora-

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