Shirks Motor Exp. Corp. v. Forster Transfer & Rigging Co.

• Decision Date: 18 June 1957
• Docket Number: No. 202,202
• Citation: 214 Md. 18,133 A.2d 59
• Parties: SHIRKS MOTOR EXPRESS CORPORATION v. FORSTER TRANSFER & RIGGING COMPANY, Inc.
• Court: Maryland Court of Appeals

Page 18

214 Md. 18

133 A.2d 59

SHIRKS MOTOR EXPRESS CORPORATION v. FORSTER TRANSFER & RIGGING COMPANY, Inc.

No. 202.

Court of Appeals of Maryland.

June 18, 1957.

Rehearing Denied Sept. 24, 1957.

William B. Dulany, Baltimore (Bladwin, Jarman & Norris, Baltimore, on the brief), for appellant.

Edwin A. Gehring, Baltimore (James J. Doherty, Baltimore, on the brief), for appellee.

Before COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ., and FLOYD J. KINTNER, Special Judge.

COLLINS, Judge.

This case presents for decision the question of proper charges for transportation of freight.

During the summer of 1953 the United States Government, Department of the Army, (the Government), accepted bids 'for furnishing the necessary drivers, riggers, helpers, packers, etc., and tractors, trailers & rigging equipment, in sufficient quantities to pack, package and transport * * * Signal Corps and miscellaneous equipment and Supplies stored at Utility Electronics Corporation, 231 Grant Avenue, East Newark, New Jersey', to be delivered F. O. B. destination to various points.

Appellant, Shirks Motor Express Corporation, and appellee, Forster Transfer and Rigging Company, Inc., were both interstate common carriers by motor vehicle. Appellee made a bid on the Government's proposal and was awarded the contract to move equipment from the Electronic plant to various destinations. Appellee itself transported substantial portions of the freight under this contract to Baltimore. The contract specified, however, that a portion of the freight was to move to Tobyhanna Signal Depot, Tobyhanna, Pennsylvania, and to New Cumberland General Depot, New Cumberland, Pennsylvania.

Appellee did not hold authority from the Interstate Commerce Commission (the Commission), to perform the required transportation to Tobyhanna, Pennsylvania, or to New Cumberland, Pennsylvania. Appellant held a certificate of public convenience and necessity from the Commission authorizing it to transport general commodities from East Newark, New Jersey, to Tobyhanna and New Cumberland, Pennsylvania. Appellee requested appellant to transport the seven truckloads of freight, the subject of this case, two of which were destined to Tobyhanna and five of which were destined to New Cumberland. Appellee loaded the freight on appellant's vehicles and executed shipping orders on the bill of lading forms customarily used by motor carriers, with respect to each of the seven truckloads of freight.

Not only did the appellant know that the transportation was for the Government but knew as much as did the appellee concerning the identity of the commodities, which were packed in sealed containers prior to shipment. In addition the appellee, on two occasions before the subject transportation occurred, conveyed to appellant all information in its possession regarding identity of the freight, whereupon appellant agreed to transport the freight at $.44 cwt. to Tobyhanna Signal Depot. This rate was modified to $.65 cwt. at the time of or after the movement occurred. Appellant also agreed to transport the freight at $.50 cwt. to New Cumberland, Pennsylvania. The agreed rate was not just for 'nuts and bolts' (five of the seven shipping orders herein described the commodities as 'nuts and bolts, etc.') but for the miscellaneous equipment, supplies, etc., located at the Utility Electronics Corporation, East Newark, New Jersey, regardless of identity of individual items. Relying on this agreed rate, appellee made its bid to the Government and was awarded the contract to move all equipment from the Electronics plant to various destinations. These rates, to which appellant agreed and on which appellee relied when making its bid, as later modified, were paid in full by appellee.

Appellee admitted that it was the shipper on each of the movements and that it was to prepay the freight charges on each of the movements. Appellant admitted, for the purpose of this appeal, that it knew beforehand that it would be transporting freight which appellee had contracted to move for the Government, though it did not know the terms and contents of the contract.

Appellee described the commodities in the shipping orders as 'Nuts and Bolts' in two instances, and as 'Nuts, Bolts, etc.' in five instances. Appellant billed the traffic as 'Nuts and Bolts' and appellee paid to appellant those charges. Appellant learned that the freight did not consist entirely of nuts and bolts. The commodities shipped to Tobyhanna were chairs and tables 'and other articles classified same or lower', and those shipped to New Cumberland were electrical appliances or instruments 'and other articles classified same or lower'. According to testimony of appellant's witness, this resulted in additional charges due appellant totaling $1,336.06, plus interest from August 29, 1953. The issue of damages, however, was not finally determined by the trial judge.

Appellant's witness testified that the shipping orders constituted the contracts between appellant and appellee, and that it was bound by its tariffs on the movements as a matter of law because it was not performing carriage for the Government within the purview of Section 22, Part I, Interstate Commerce Act, hereinafter referred to as 'the Act', (49 U.S.C.A. § 22), hereinafter referred to as 'Section 22'. Appellant therefore seeks payment of its published tariff rate based on a corrected description of the commodities.

Suit was therefore entered for appellant, as plaintiff, against appellee, as defendant, for the rates as specified in the tariffs in effect at that time. Appellee claimed that, as Section 22 governed, its contract rates with appellant were the correct charges which it had paid. The trial judge sustained the position taken by appellee holding that appellant was not governed by its tariffs on the shipments in question, as Section 22 applied, and entered judgment for the appellee, defendant, for costs. From that judgment, appellant, plaintiff, appeals.

It is admitted by all the parties that an interstate common carrier is required to collect its published tariff rate for freight transportation unless the transportation falls within the exemption set forth in Section 22. United States v. Interstate Commerce Commission, 352 U.S. 158, 77 S.Ct. 241, 1 L.Ed.2d 211, decided December 17, 1956.

It is provided by the Act, Part II, Section 217(b), (49 U.S.C.A. § 317(b), (hereinafter referred to as 'Section 317(b)'):

'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: Provided, That the provisions of section 1 (7) and 22 of this title shall apply to common carriers by motor vehicles subject to this part.'

Section 22 provides in part: 'Nothing in this chapter shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States, State, or municipal governments * * *.'

The shipper, the carrier, and the consignee are all trustees for the public and no complication arising out of agreements between them should defeat the purpose of the Act in reguiring the full and exact payment of the filed, posted and published tariff. Great Northern Railway Co. v. Hyder, D.C.W.D.Wash. 279 F. 783. A motor carrier of freight in interstate commerce is required to collect and the shipper to pay the undercharge figured on the charges specified in the controlling tariff rates. Both the shipper and the carrier are bound to take notice of such rates. Neither ignorance nor misquotation will justify the paying of less than the effective tariff rate. Interest on such undercharge from the date of the occurrence, is allowed on general principles without reference to the local law of the state. T. & M. Transportation Co. v. S. W. Shattuck Chemical Co., 10 Cir., 158 F.2d 909, and cases there cited.

The real character of the commodity shipped and not that erroneously described on shipping documents is controlling in determination of the applicable rates. Allan B. DuMont Labs. Inc. v. York Motor Express Co., 62 MCC 53, 54-55; Graver Corp. v. Southern Railway Co., 156 ICC 619, 621; Hughes Transportation, Inc. v. United States, 121 F.Supp. 212, 128 Ct.Cl. 221. The Act is remedial legislation and should be given a liberal interpretation. For the same reason exemptions from its sweep should be narrowed and limited to effect the remedy. Piedmont & Northern Railway Co. v. Interstate Commerce Commission, 286 U.S. 299, 311-312, 52 S.Ct. 541, 76 L.Ed. 1115.

The trial judge and the appellee rely strongly on case of United States v. Bethke, D.C.Colo., 132 F.Supp. 22. There, an action was brought by the Government to recover claimed freight overcharge collected by defendant's Bethke's, truck lines on a freight shipment. Pacific and Atlantic Shippers' Association (Pacific), a freight forwarder, was a party to a contract with the Government pursuant to Section 22 and originally received the freight shipment. Pacific in turn, as freight forwarder, shipped the freight by rail to Chicago, thence through Independent Truckers, Inc., from Chicago to Denver. Bethke, a common carrier, picked up the freight at Denver and delivered it by its truck line to Fort Collins, Colorado. Bethke charged the standard rates in accordance with the tariff approved by the Commission. The Section 22 rates contemplated by the contract between the Government and Pacific were not contained in any tariff...