Western Transp. Co. v. E. I. Du Pont de Nemours and Co.

• Decision Date: 12 July 1982
• Docket Number: 82-1190,Nos. 82-1089,s. 82-1089
• Parties: WESTERN TRANSPORTATION COMPANY, Plaintiff-Appellant, Plaintiff-Appellee, v. E. I. DU PONT DE NEMOURS AND COMPANY, Defendant-Appellee, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1233

682 F.2d 1233

WESTERN TRANSPORTATION COMPANY, Plaintiff-Appellant, Plaintiff-Appellee, v. E. I. DU PONT DE NEMOURS AND COMPANY, Defendant-Appellee,

Defendant-Appellant.

Nos. 82-1089, 82-1190.

United States Court of Appeals, Seventh Circuit.

Argued June 11, 1982.

Decided July 12, 1982.

Steven C. Weiss, Abraham A. Diamond, Chicago, Ill., for plaintiff-appellant, plaintiff-appellee.

William E. Kelly, Chicago, Ill., for defendant-appellee, defendant-appellant.

Before WOOD and POSNER, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

POSNER, Circuit Judge.

This is another case involving the assiduous efforts of Western Transportation Company, a bankrupt trucker, belatedly to collect from its shippers undercharges resulting from its having failed to charge the correct rates at the time of shipment. See Western Transp. Co. v. Wilson & Co., No. 82-1053, --- F.2d ---- (7th Cir.), decided this day; Western Transp. Co. v. Webster City Iron & Metal Co., 657 F.2d 116 (7th Cir. 1981). For relevant background, and discussion of the applicable legal principles, see the Wilson & Co. opinion.

The present case involves "piggyback" service, wherein freight is loaded into a truck's trailer at the shipper's premises, the trailer is then hauled by truck to a railroad terminal and there loaded on to a railroad flatcar, and after its rail journey the trailer is unloaded and hauled (again by truck) to the consignee's premises. The movements in question went under a tariff applicable to freight in "trailers furnished by the shipper, the rail carrier, the water carrier or its affiliates." Western's normal practice was to obtain trailers from railroads in Chicago, haul the trailers by truck to Du Pont's plant in Iowa, load them there, and then haul the loaded trailers back to Chicago and deliver them to the railroads for the rail part of the journey. These movements complied with the tariff provision quoted above but between 1977 and 1979 Western decided that too many of its own trailers were near Du Pont's plant and it asked Du Pont whether it would be all right to substitute those trailers for the trailers it had been getting from the railroads. Western assured Du Pont that the substitution would involve no extra expense to Du Pont; Du Pont consented to the substitution; and now Western is suing Du Pont for the difference between what it actually charged under the tariff quoted above and what it would have charged under the tariff-containing a higher rate-that is applicable if the trailers are furnished by the trucker rather than by the shipper or the rail carrier.

The district court agreed that Western was entitled to collect the additional charges and awarded judgment in its favor of $27,000, from which Du Pont appeals. The district court rejected an unrelated claim of Western and Western has not appealed from that part of the judgment. After the judgment was entered Western made two motions, one purportedly under Rule 59(e), the other under Rule 60(b), of the Federal Rules of Civil Procedure, to have the judgment increased. The district judge denied these motions and Western appeals from those denials.

We can dispose of Du Pont's appeal quickly in light of the opinion in Wilson & Co., supra. If a tariff is unambiguous it must be enforced according to its terms, regardless of the equities, which here as in Wilson & Co. strongly favor the shipper. We find no ambiguity in this tariff. It fixes a lower rate for piggyback service when the trucker does not furnish the trailers itself. Here the trucker did furnish the trailers itself. Du Pont argues that really it furnished the trailers because by consenting to Western's proposal it "arranged" for Western's trailers to be used. But this construction nullifies the tariff provision. Counsel for Du Pont was unable at oral argument to suggest a case where the furnishing of trailers by the motor carrier could not be construed as a furnishing by the shipper if we accepted Du Pont's construction. We cannot think of such a case either. We agree with counsel that if Western had leased its trailers to Du Pont and Du Pont had then provided Western with those trailers to use in its piggyback service for Du Pont, Du Pont would be the furnisher. But a lease would have given Du Pont a possessory interest in the trailers-enough so they could be regarded as its trailers for purposes of the tariff. It had no interest in the trailers in this case. They were Western's pure and simple.

In Wilson & Co. there was a suggestion that the tariff provision in issue was unreasonable, and we remanded the case to the district court to give the shipper an opportunity to ask the Interstate Commerce Commission to rule on the question. There is no similar suggestion in this case, and the district court's judgment must be affirmed.

We turn to Western's appeal from the district court's refusal to increase the size of the judgment-an appeal rich in irony. In defending the judgment for the undercharges Western takes its stand foursquare on technicality; it does not argue that the judgment is equitable. But in contesting the district court's refusal to increase the judgment Western argues that its failure to comply with the technical requirements of the Federal Rules of Civil Procedure should not deny it the substantial justice that it says is its due.

Rule 59(e) provides that "a motion to alter or amend the judgment shall be served not later...