Mars Express, Inc. v. David Masnik, Incorporated

• Decision Date: 03 October 1968
• Docket Number: Docket 32155.,No. 3,3
• Citation: 401 F.2d 891
• Parties: MARS EXPRESS, INC., Appellant, v. DAVID MASNIK, INCORPORATED, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

401 F.2d 891 (1968)

MARS EXPRESS, INC., Appellant, v. DAVID MASNIK, INCORPORATED, Appellee.

No. 3, Docket 32155.

United States Court of Appeals Second Circuit.

Argued September 4, 1968.

Decided October 3, 1968.

Thomas W. Murrett, Hartford, Conn. (Glenn E. Knierim and Joseloff, Murrett & Knierim, Hartford, Conn., on the brief), for appellant.

Francis J. Ortman, Washington, D. C. (David L. Citronberg and Zwecker, Balter & Citronberg, Bridgeport, Conn., Raysor, Ortman, Barbour, Welch & Bell, Washington, D. C., on the brief), for appellee.

Before LUMBARD, Chief Judge, and SMITH and ANDERSON, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

This is an action brought by a trucking company to recover undercharges for the transportation of 290 truckloads of liquor from Peekskill, New York to Bridgeport, Connecticut, where the defendant operated a wholesale liquor business. Plaintiff's claim is based on section 217(b) of the Interstate Commerce Act, which 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 * * 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 * * any portion of the rates, fares, or charges so specified * * * 49 U.S.C. § 317(b).

The amount involved is stipulated to be $19,023.50, plus interest. This represents the difference between the freight charges actually paid by defendant and a higher figure calculated by reference to the published tariff.

The United States District Court for the District of Connecticut (Edward C. McLean, J., sitting by designation) gave judgment for the defendant shipper, and the plaintiff carrier appeals. We find no error and affirm the judgment.

The plaintiff, Mars Express, Inc. ("Mars"), was a common carrier operating under the jurisdiction of the Interstate Commerce Commission. By the terms of its certificate of public convenience and necessity, Mars was authorized to operate (1) between certain New Jersey counties and parts of New York, including Peekskill, and (2) between those same New Jersey counties and parts of Connecticut, including Bridgeport. Mars was not authorized, however, to operate directly between Peekskill and Bridgeport.

From 1956 through December 1963, Mars billed defendant for shipping charges at a rate of 40 cents per hundred-weight on loads of 36,000 pounds or over. This was pursuant to a rate application approved by the ICC in 1956. In that application, Mars represented that it would transport the liquor from Peekskill to Bridgeport by way of New Jersey. It also represented that it would transport the liquor in conjunction with another common carrier, Apex Express, Inc. ("Apex"). More specifically, Apex was to transport the liquor from Peekskill to New Jersey, and Mars would then transport it from New Jersey to Bridgeport.

In 1962, the New England Motor Rate Bureau, Inc., an association authorized by power of attorney to make rate applications for Mars, filed a new liquor rate with the ICC. The application was made without Mars' knowledge, and raised the applicable rate to 56 cents per hundred-weight for loads of 36,000 pounds or more. The new rate was deemed "accepted" by the ICC effective March 1, 1962, and was subsequently published. For some inexplicable reason, however, neither plaintiff nor defendant learned of the new rate until December 1963, when Mars demanded that defendant pay additional charges on shipments delivered after March 1, 1962.

If this was all that had happened, then plainly Mars would be entitled to recover undercharges under section 217(b) of the Act. As Mr. Justice Hughes said in Louisville & Nashville Railroad Company v. Maxwell, 237 U.S. 94, 97, 35 S.Ct. 494, 59 L.Ed. 853 (1915):

Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress * * *

In a recent decision the Third Circuit remarked: "The rate filed is a matter of public record of which the shipper must take notice at his peril." Bowser and Campbell v. Knox Glass, Inc., 390 F.2d 193, 196 (3d Cir. 1968), cert. denied 392 U.S. 907, 88 S.Ct. 2061, 20 L.Ed.2d 1365.

The district court found, however, that Mars exceeded the scope of its authority as a common carrier by transporting the liquor directly from Peekskill to Bridgeport without going by way of New Jersey as its certificate stipulated. The finding of the court below was that Apex did not participate "to any appreciable extent, if at all" in this arrangement. "The trucks carrying the liquor went directly from Peekskill to Bridgeport. They were trucks operated by Mars." Since Mars was operating beyond its authority as a common carrier, the lower court ruled that Mars could not bring a section 217 (b) action for undercharges, and gave judgment for the defendant.

Mars does not dispute the fact that it violated the terms of its operating certificate by taking the liquor directly from Peekskill to Bridgeport. Nonetheless, it insists that because it possessed a certificate of public convenience and necessity, it is a common carrier within the meaning of the Act, and therefore entitled to recover undercharges. We find no merit in its contentions.

While Mars was a common carrier within the Act (and, although in the meantime it has ceased operating as such, still entitled to sue under the Act for monies it earned while it was a common carrier), it cannot recover undercharges for illegal carriage off route. In particular, Mars directs our attention to the recent decision of the Third Circuit in Bowser and Campbell v. Knox Glass, Inc., supra, where it was held that the right to recover undercharges is available to contract carriers as well as common carriers. The Third Circuit opinion, says Mars, means that any discrepancy between actual and published freight rates is forbidden. In addition, Mars argues that because carriers which violate the terms of their operating certificates may be fined under section 222(a) of the Act 49 U.S.C. § 322(a), these are the only sanctions for which a defaulting carrier may be liable, and thus the route followed is irrelevant in a section 217(b) action.

Appellant appears to be somewhat confused by the choice of words in the opinion below. In dismissing the action, Judge McLean wrote that "plaintiff was acting as a contract carrier" for purposes of the Peekskill-to-Bridgeport route. While the Act distinguishes between common and contract carriers for regulatory purposes, it...