Fry Trucking Co. v. Shenandoah Quarry, Inc.

• Decision Date: 24 June 1980
• Docket Number: Nos. 79-1668,79-1761,s. 79-1668
• Citation: 628 F.2d 1360
• Parties: FRY TRUCKING COMPANY, Appellant, v. SHENANDOAH QUARRY, INC. FRY TRUCKING COMPANY v. SHENANDOAH QUARRY, INC., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1360

628 F.2d 1360

202 U.S.App.D.C. 337

FRY TRUCKING COMPANY, Appellant, v. SHENANDOAH QUARRY, INC.

FRY TRUCKING COMPANY v. SHENANDOAH QUARRY, INC., Appellant.

Nos. 79-1668, 79-1761.

United States Court of Appeals, District of Columbia Circuit.

Argued April 14, 1980.

Decided June 24, 1980.

Appeal from the United States District Court for the District of Columbia Circuit Civil Action No. 76-1066.

Daniel B. Johnson, Washington, D. C., with whom James Anton, Washington, D. C., and Gary E. Thompson were on brief, for appellant in No. 79-1668 and appellee in No. 79-1761.

Paul M. Rhodes, Washington, D. C., for appellee in No. 79-1668 and cross-appellant in No. 79-1761.

Before McGOWAN and WILKEY, Circuit Judges, and RONALD N. DAVIES, ^* United States Senior District Judge for the District of North Dakota.

Opinion for the court filed by Senior District Judge RONALD N. DAVIES.

RONALD N. DAVIES, Senior District Judge:

This appeal stems from the attempt of a common carrier by motor vehicle operating under a certificate of convenience and necessity issued by the Interstate Commerce Commission (ICC) to recover sums allegedly due for transportation charges which were billed and paid for at less than published tariff rates.

Section 217(b) of the Interstate Commerce Act, 49 U.S.C. § 317(b) provides in part that 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 . . .

Fry Trucking Company (Fry), a common carrier with published tariff rates, commenced in June, 1973, to transport stone from a quarry in West Virginia to Bethesda, Odenton, Mitchelville and Rockville, Maryland and the District of Columbia pursuant to a written contract with Shenandoah Quarry, Inc. (Shenandoah), which provided, inter alia, that:

Tariff The haul rate from said quarry to the stock pile area located on the premises of Asphalt Construction, Inc., Ninth and Brentwood Streets, Washington, D. C. shall be two dollars ($2) per ton. All other haul rates shall be mutually agreed upon as the need arises, but in no case shall any haul rate exceed the lowest haul rate quoted to Shenandoah Quarry, Inc. by more than five percent (5%).

Fry, not having authority to provide services to Odenton and Mitchelville, Maryland, entered into an oral lease to use the equipment of Paul Liskey, a common carrier with authority to provide services to these points.

From June, 1973 to March, 1974, Shenandoah paid and Fry accepted the agreed upon contract rates. After the parties terminated their business arrangement, Fry, relying on § 217(b) of the Act, supra, commenced this action seeking to recover, as undercharges, the differences between the agreed upon contract rates and its published tariff rates for services to Bethesda, Rockville and the District of Columbia and the differences between the agreed upon contract rates and Liskey's published tariff rates for services to Odenton and Mitchelville.

Shenandoah, contending that Fry was estopped by its actions from claiming common carrier status, denied liability and, alleging that Fry had violated the Act by performing services to Odenton and Mitchelville without authority, counterclaimed for the amounts paid for services to these points.

The district court ordered the parties to file cross motions for summary judgment on the issue of liability and referred the matter to a magistrate. The magistrate, in a memorandum opinion, rejected Shenandoah's estoppel argument:

". . . it is now well settled that 'no legal or equitable defenses are available to a shipper who has been undercharged.' Alleghany Corp. v. Romco, Inc. (392 F.Supp. 38 (D.C.)) at 39; Louisville and Nashville Railroad Company v. Central Iron and Coal Company, 65 (265) U.S. 59 (, 44 S.Ct. 441, 68 L.Ed. 900) (1924); Lowden v. Simonds-Shields-Lonsdale Grain Company, 306 U.S. 516 (, 59 S.Ct. 612, 83 L.Ed. 953) (1939). Thus, courts have consistently applied the published tariff rate and will not consider the parties intent, acts, omissions, contracts or hardships on the shipper. Chicago and North Western R. Co. v. Union Packaging Company, 514 F.2d 30, 32 (8th Cir. 1975); Alleghany Corporation v. Romco, Inc., supra; Bowser (and) Campbell v. Knox Glass, Inc., (390 F.2d 193 (3rd Cir. 1968)); Baldwin v. Scott County Milling Company, 307 U.S. 478, 485 (, 59 S.Ct. 943, 948, 83 L.Ed. 1409) (1939).

"Accordingly, Fry is entitled to summary judgment as to liability on its claim for the difference between what was actually paid under its arrangement with Shenandoah and the amount which should have been forthcoming had the scheduled tariff rates been used . . ."

The magistrate also held against Shenandoah on its counterclaim:

". . . Defendant's counterclaim must fail. It is clear that a shipper is liable even if the carrier has violated the Act. Here, there is no evidence, nor any formal adjudication demonstrating that plaintiff, in fact, has violated the Act and even if there were, as a matter of law and policy, the shipper is entitled to receive the tariff rate for services rendered. Alleghany Corp. v. Romoco (sic), Inc., 392 F.Supp. 38 (W.D.Penn. 1975)."

The district court, after reviewing the magistrate's findings and the parties' exceptions thereto, entered judgment against Shenandoah on the issue of liability and ordered the matter referred to the magistrate for findings of fact and conclusions of law on the issue of damages.

After resolving the question of the number of miles to Rockville, Bethesda, and the District of Columbia to be used in determining the tariff rates to be applied to the undisputed number of shipments and tonnage transported, the magistrate calculated the amount of undercharges, adjusted by amounts previously received by Fry, for services to these points. However, the magistrate refused to award undercharges for services to Odenton and Mitchelville, holding that:

"15. The Interstate Commerce Act prohibits 'Transportation (by common carrier) of passengers and property unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published . . .'

"16. Plaintiff was not authorized by the ICC to perform transportation services to Odenton and Mitchelville, Maryland. Plaintiff's oral agreement with Paul Liskey, who did have such authority, pursuant to which plaintiff purported to lease Liskey's operating authority was not approved or authorized by any regulation or ruling of the Commission. The Commission has determined that such arrangements are unlawful. See Samuel Tischler Extension-Canned Goods, No. MC-60612 (sub No. 12), decided January 7, 1960.

"17. If this court were to enforce such an agreement, it would, in effect, approve a convenient method of circumventing the regulatory scheme of the Commission and would contravene the oft stated goal of maintaining respect for the rates established under ICC procedures. 7

"18. Because plaintiff did not follow its authorized route in performing transportation services to Odenton and Mitcheville (sic), Maryland, it cannot take advantge of published tariff rates to recover undercharges. See Mars Express, Inc. v. David Masnick (sic), Incorporated, 401 F.2d 891 (2nd Cir. 1968)."

The district court, in adopting the magistrate's findings of fact and conclusions of law and entering judgment thereon, held that:

". . . Rule 53(e)(2) of the Federal Rules of Civil Procedure provides that a 'court shall accept the master's findings of fact unless clearly erroneous.' Applying this standard to the master's findings of fact, the court is unable to find that any finding is clearly erroneous. Moreover, the court is in complete accord with the magistrate's conclusions of law."

Both parties have appealed, Shenandoah from the...