Dan Barclay, Inc. v. Stewart & Stevenson Services

• Decision Date: 01 April 1991
• Docket Number: Civ. A. No. 89-2590-C.
• Citation: 761 F. Supp. 194
• Parties: DAN BARCLAY, INC., Plaintiff, v. STEWART & STEVENSON SERVICES, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

761 F. Supp. 194

DAN BARCLAY, INC., Plaintiff, v. STEWART & STEVENSON SERVICES, INC., Defendant.

Civ. A. No. 89-2590-C.

United States District Court, D. Massachusetts.

April 1, 1991.

Robert G. Parks, Wellesley Hills, Mass., for plaintiff.

Wesley S. Chused, Kroll & Tract, Boston, Mass. and David H. Coburn, Steptoe & Johnson, Washington, D.C., for defendant.

MEMORANDUM

CAFFREY, Senior District Judge.

I.

The current action arises out of a dispute between a motor carrier, Dan Barclay, Inc. ("Barclay"), and a shipper, Stewart and Stevenson Services, Inc. ("Stewart"). Jurisdiction is founded upon diversity of citizenship, and the amount in controversy exceeds $50,000. The case is currently before this Court on Barclay's motion for summary judgment, and Stewart's cross-motion for partial summary judgment or, in the alternative, for referral to the Interstate Commerce Commission ("ICC"). Upon consideration, Barclay's motion for summary judgment should be denied in its entirety, and Stewart's cross-motion for partial summary judgment should be allowed.

II.

The following facts are undisputed. The defendant, Stewart, is a manufacturer of equipment used in power generation. In July, 1987, acting through a Texas transportation broker, Stewart contacted Woko Transportation Services ("Woko"), a Maine transportation broker. A transportation broker acts on behalf of shippers to arrange shipping services and to provide other services involved in the movement of cargo with unusual dimensions. Stewart hired Woko to arrange the shipment of various pieces of large equipment from a marine terminal in Portland, Maine, to Lowell, Massachusetts, where they were to be used in a power plant then under construction. The President of Woko, William J. Orcutt, contacted Barclay on September 18, 1987. Barclay is an interstate for-hire motor carrier authorized by the ICC to conduct business as both a common carrier and a contract carrier. Barclay was known to specialize in the area of transporting oversized and overweight cargo. Orcutt informed Barclay about the shipments, and, according to his affidavit, advised Barclay that the cargo could not exceed eighteen feet or it would violate various permits that he had requested from the state highway authorities.

Later that same day, Barclay telephoned Orcutt specifying rates for the desired shipments. Barclay confirmed these rates in a writing dated September 24, 1987. The letter read as follows:

"Dear Bill:

This is written to confirm our rate quotation for the transportation of a co-generation plant from Portland, Me., to Lowell, Ma.

Based on the information which you provided us, we agree to transport the following six (6) pieces at a lump sum price of $38,290.29. At your request, a breakdown would be as follows:

                  1 Main Unit      weighing    135,000 lbs.    67'6"L × 14'0"W ×  14'7"H
                         $25,875.00
                  1 Generator          "       124,000 lbs.    21'4"L × 11'6"W ×  10'9"H
                          $3,135.60
                  1 Roof module        "        37,000 lbs.    32'5"L × 14'0"W ×  12'7"H
                          $2,463.89
                  1 Air cleaner        "        18,500 lbs.   13'11"L × 10'0"W ×  14'1"H
                          $2,179.92
                  1 Air cleaner        "        18,500 lbs.   13'11"L × 10'0"W ×  14'1"H
                          $2,179.92
                  1 Control house      "        37,000 lbs.    34'0"L × 13'0"W ×  12'10"H
                          $2,455.94
                

This price reflects our provision of the transporting equipment, drivers and the base transportation of the above pieces. As agreed, this quote does not include the cost of any additional services such as bridge studies, route surveys, state fees, utility charges, escorts and costs not specifically outlined.

It is understood that loading is to be performed by the shipper and unloading by the consignee. Two hours free time shall be allowed whereas detention time will be billed at $104.30 per hour for time incurred beyond the free time at both the origin and destination.

As you have requested us to perform this assignment within the next two weeks, we are awaiting your confirmation and additional information as to routing, escorts and actual dates.

We greatly appreciate this service opportunity and look forward to hearing from you soon. Thank you."

Pursuant to a telephone call on September 28, the parties agreed that Barclay would transport two of the six items, the main unit and the generator.

Barclay's crew arrived in Portland, Maine, on October ninth or tenth.¹ According to Orcutt's deposition testimony, the crew and equipment included two drivers, one mechanic, one foreman, two trucks, two trailers and one station wagon. From this point on, the transportation of the equipment experienced several delays; each party blames the delay on the other's ineptness. Stewart states that due to the crew's unfamiliarity with the equipment, it took most of the day of October 10 to load the main unit and the generator onto the trailers. Barclay states that when difficulty with turning corners was experienced, it was necessary to have a special steering mechanism called a bolster fabricated. According to Stewart, the cargo was damaged during this first attempt to drive away from the marine terminal without the bolster.

Leaving aside the issue of fault, it is undisputed that on the following day, Barclay's crew returned to their terminal in New Jersey, leaving the main unit and generator on Barclay's trailers adjacent to the marine terminal in Portland. The crew returned to Portland on October 13 with a steering bolster. On October 15, Stewart contacted Lon Inskeep to provided technical advice regarding the loading of the cargo. Inskeep arrived in Portland on October 15. Although the cargo had been reloaded, it had not yet been moved because its height exceeded permissible limits. After further delay, Barclay demanded payment from Stewart of detention and other charges totalling $38,444 before it would perform any further work. Moreover, in a letter to Orcutt, dated October 22, 1987, Barclay stated that it would charge $1256.55 per day for the "storage/detention" of the trailers. Stewart paid the amount demanded based on an invoice presented by Barclay.

Thus, Barclay's crew returned once again to Portland on November 2, bringing with them a different bolster. At some point prior to moving the cargo, two bills of lading were prepared. The actual movement of the cargo began several days later, the two pieces of equipment departing on different days. There were further delays due, according to Orcutt's affidavit, to weekend and holiday layovers, and poor weather. Both vehicles finally reached the Massachusetts border, where they were required to wait at the same place until November 19 for the appropriate Massachusetts permits to be issued.² The cargo finally reached Lowell on the same day, November 19, the transportation having consumed approximately thirteen days. The construction site was not prepared at that point to unload the cargo. Stewart claims that due to the delays outlined above, the construction had entered into a new phase which made unloading impossible. Therefore, the unloading was delayed until December 3, 1987. Barclay sent Stewart several invoices for detention charges due to the delay. Much later, on June 8, 1989, Barclay claimed that its services had actually been performed under a tariff filed with the ICC, Tariff ICC HSC 401-A. This letter stated that, according to the tariff, Barclay's services were worth $178,204, and that Stewart owed the difference between this amount, and that already paid.

The tariff referred to in the June 8 letter is the subject of much dispute in the present case. Barclay for many years had participated in group tariffs of the Heavy & Specialized Carriers Tariff Bureau. In September, 1987, the bureau informed Barclay that its dues owed to the bureau were in arrears and that if it did not pay, its participation in the tariff would be cancelled. Barclay states that it tendered payment, but that its participation was cancelled nonetheless, on September 24, 1987. Barclay's participation in the tariff was not reinstated until October 19, 1988, well after the completion of the transportation of the cargo in question here.

III.

Barclay has moved for summary judgment on Count One of its complaint which alleges a cause of action under the Interstate Commerce Act ("Act") for payment of the amount due under the tariff. Barclay also asks that summary judgment be entered in its favor on Stewart's two counterclaims, Count One alleging negligence resulting in damage to the cargo, and Count Two alleging breach of contract arising out of Barclay's alleged overcharge in the amount of $9,433.40. In response, Stewart has moved for partial summary judgment on Count One of Barclay's complaint, or, in the alternative, for referral to the ICC.

When facing cross-motions for summary judgment, a court must rule on each motion independently, deciding in each instance whether the moving party has met its burden under Rule 56. Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2720 (1983). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). One way of meeting this burden is by showing that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553. Once he or she has done so, the opposing party must come forward with enough evidence to demonstrate that there is a genuine issue for trial. Celotex...