Aero Trucking, Inc. v. Regal Tube Co.
| Decision Date | 08 December 1978 |
| Docket Number | No. 78-1901,78-1901 |
| Citation | 594 F.2d 619 |
| Parties | AERO TRUCKING, INC., Plaintiff-Appellee, v. REGAL TUBE COMPANY, Defendant and Third Party Plaintiff-Appellant, v. William CRUM, Third Party Defendant-Appellee. . Heard |
| Court | U.S. Court of Appeals — Seventh Circuit |
James G. Hunter, Jr., Chicago, Ill., for defendant and third-party plaintiff-appellant.
Daniel Galatzer, Joel Steiner, Chicago, Ill., for plaintiff-appellee.
Before SWYGERT, LAY * and PELL, Circuit Judges.
Aero Trucking, an interstate motor freight carrier, brought suit against Regal Tube, a manufacturer and shipper of steel tubing, for the recovery of certain tariff charges arising out of Aero's transportation of steel tubing. Regal Tube impleaded as a third party defendant William Crum, the terminal manager for Aero. Aero carried steel tubing for Regal from May through August of 1976. During this period Regal detained Aero's trucks over 100 times. Aero billed Regal $9,398 for detention time. Regal paid Aero all transportation charges except the detention charges. Aero thereafter brought suit to recover these charges.
Regal asserted in the district court that Aero was estopped from making claim for detention charges under the tariff on the ground that Aero, through its terminal manager Crum, had fraudulently misrepresented prior to the shipment that No detention charges would be assessed to Regal in connection with the transportation charges. At the time the alleged misrepresentation was made, unknown to Regal, Aero had on file with the Interstate Commerce Commission certain tariffs which required detention charges to be imposed on the shipper if Aero trucks were detained beyond a prescribed "free time." The third party complaint sought recovery against Crum on the basis that if Regal was liable to Aero then Crum was liable to Regal.
The trial court held that under 49 U.S.C. § 317(b) a common carrier must charge all shippers the same rates as specified in the tariffs and therefore estoppel was not available to Regal on the facts presented. Accordingly, the trial court granted Aero's motion for summary judgment. The trial court also granted Crum's motion for summary judgment on the ground that the employee of a carrier may not be held liable for the inaccurate quotations alleged.
We affirm.
Section 217 of the Motor Carrier Act, 49 U.S.C. § 317, provides in pertinent part:
No common carrier by motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation Or for any service in connection therewith between the points enumerated in such tariff than the rates, fares, and charges specified in the tariffs in effect at the time; and no such carrier shall refund or remit in any manner or by any device, directly or indirectly, or through any agent or broker or otherwise, any portion of the rates, fares, or charges so specified, or extend to any person any privileges or facilities for transportation in interstate or foreign commerce except such as are specified in its tariffs.
(Emphasis added.)
The obvious and long-recognized purpose underlying this section is to prevent tariff rate discrimination. See Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Fink, 250 U.S. 577, 581, 40 S.Ct. 27, 63 L.Ed. 1151 (1919); Consolidated Freightways Corp. v. Forty-Eight Insulations, Inc.,501 F.2d 1400, 1402 (7th Cir. 1974); Southern Pacific Transportation Co. v. Campbell Soup Co., 455 F.2d 1219, 1221 (8th Cir. 1972); Consolidated Freightways Corp. v. Admiral Corp., 442 F.2d 56, 61 (7th Cir. 1971). In accordance with this policy and the stringent language of the Act it has long been held that properly published tariffs are incorporated into any agreement between the shipper and carrier. See Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Fink, 250 U.S. at 581-82, 40 S.Ct. 27; Consolidated Freightways Corp. v. Forty-Eight Insulations, Inc., 501 F.2d at 1401 n. 2; Eastern Motor Express, Inc. v. A. Maschmeijer, Jr., Inc., 247 F.2d 826, 828 (2d Cir. 1957), Cert. denied, 355 U.S. 959, 78 S.Ct. 535, 2 L.Ed.2d 534 (1958). As stated by the Supreme Court, "(the shipper), as well as the carrier, must be presumed to know the law, and to have understood that the rate charged could lawfully be only the one fixed by the tariff." Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Fink, 250 U.S. at 581, 40 S.Ct. at 28. Thus, carriers who sue to recover the full tariff rate after mistakenly undercharging the shipper cannot be estopped from asserting the correct rate on the basis of their prior representations to the shipper that the rate was lower.
Regal initially attempts to distinguish this case from the undercharge cases by asserting that the undercharge cases dealt with transportation charges while the instant case deals with "an Unnecessary additional charge that Could and would have been avoided in connection with these shipments but for appellees' fraud in the inducement." We find the alleged factual difference clearly insufficient. The Motor Carrier Act treats "compensation for transportation Or for any service in connection therewith " precisely the same. 49 U.S.C. § 317(b) (emphasis added). When a carrier waits at the shipper's loading dock it performs a service in connection with the transportation of the shipper's goods.
Regal also argues the undercharge cases do not control the resolution of this appeal since Aero has committed the type of discrimination which the undercharge cases condemned. According to Regal, Aero's fraudulent statements induced Regal to incur unnecessary detention charges. It is urged that this conduct discriminated against and disadvantaged Regal since other shippers were not given fraudulent information concerning detention charges and therefore were able to alter their operations in order to avoid unnecessary delays in loading. We reject this contention.
The type of discrimination alleged by Regal in this case is always...
To continue reading
Request your trial
-
Iowa Power and Light Co. v. Burlington Northern, Inc.
...Id. at 822, citing Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681 (1908); Aero Trucking, Inc. v. Regal Tube Co., 594 F.2d 619 (7th Cir. 1979); Illinois Central Gulf R.R. v. Golden Triangle Wholesale Gas Co., 586 F.2d 588 (5th Cir. 1978); Farley Terminal Co. v. ......
-
Porr v. NYNEX Corp.
...Corp. of Delaware v. Terry Tuck, Inc., 612 F.2d 465, 466, cert. denied 447 U.S. 907, 100 S.Ct. 2990, 64 L.Ed.2d 856; Aero Trucking, Inc. v. Regal Tube Co., 594 F.2d 619, 622; Illinois Cent. Gulf R. Co. v. Golden Triangle Wholesale Gas Co., 586 F.2d 588, The occasional anomalous cases appear......
-
Cahnmann v. Sprint Corp.
...enforced, and the amended tariff set aside, in a suit under state law, which we just said is not allowed. Cf. Aero Trucking, Inc. v. Regal Tube Co., 594 F.2d 619 (7th Cir.1979); H.J., Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 489-90 (8th Cir.1992); Marco Supply Co. v. AT & T Communi......
-
North Penn Transfer, Inc. v. Victaulic Co. of America
...Missouri P. R. Co. v. Rutledge Oil Co., 669 F.2d 557 (8th Cir.1982) (fraud and estoppel unavailable); Aero Trucking, Inc. v. Regal Tube Co., 594 F.2d 619 (7th Cir.1979) (estoppel defense precluded). The filed rate doctrine, however, does not automatically bar the assertion of affirmative de......