wherein Carrier acknowledged that the charges which had been collected were the charges the parties had agreed upon and further released Knox from any future claim for such charges (defendant's Ex. G; T., pp. 115-116).
19. Pursuant to the conferences with the Interstate Commerce Commission and the terms of the agreement (Ex. G), Knox entered a plea of nolo contendere in the criminal action brought against it by the Interstate Commerce Commission (T., pp. 111-112).
20. Because of alleged "pressures" for collection of undercharges which Carrier claims were being exerted by representatives of the Interstate Commerce Commission, Mr. Eisen arranged a meeting with representatives of the Interstate Commerce Commission in Washington on November 10, 1964, where Mr. Bowser and his counsel were informed that the Interstate Commerce Commission was not concerned with Carrier's pursuing a claim for the undercharges (T., pp. 119-122).
21. The only occasions that a representative of the Interstate Commerce Commission made any statements about collection of undercharges was in the latter part of 1963, which was prior to the time of the filing of the criminal actions, prior to the time of the amendment to the Schedule of Charges (Ex. D), and prior to the time of the agreement between the parties (Ex. G), and their meeting on November 10, 1964 with the representatives of the Commission in Washington, D.C. Carrier seems to justify bringing this civil action because of alleged threats of criminal penalties made in 1963 by employees of the Interstate Commerce Commission Motor Vehicle Bureau if Carrier did not institute suit to collect the additional transportation charges.
22. The criminal charges brought against Carrier in March, 1964, referred to in Finding 17, were disposed of in 1964. The complaint in this action was filed on January 21, 1966, a time when there was no realistic threat of further criminal prosecution. We do not give any credence to Mr. Bowser's testimony indicating that pressures of the representatives of the Interstate Commerce Commission were responsible for bringing this civil action. (T., pp. 141, 143, 149-152.)
23. The freight charges involved in this action billed by Carrier and paid by Knox, including the charges for stopping in transit at the Pennsylvania Knox plants to complete loading were in accord with the contract between the parties.
24. In the publication of Carrier's MC 1218, MF I.C.C. No. 3 Schedule of Charges in effect at the time involved in this proceeding (Ex. C), Carrier inadvertently and mistakenly failed to include or see to the inclusion of a rule whereby shipments subject to truckload rates set out in the Schedule of Charges may be stopped at points of origin for partial loading, and the applicable rate on such shipments will be the truckload rate provided in the Schedule.
Cf. with the amendment to the Schedule, Exhibit D, Item 40(A), supplementing Exhibit C.
25. In the agreement between the parties dated August 21, 1964 (Ex. G), Carrier agreed it would not make any claim for alleged undercharges against Knox.
It is clear that absent the Interstate Commerce Act, § 318(a), Title 49 U.S.C.A., this contract action would result in judgment for the defendant, Knox.
The evidence clearly shows that the written agreement (Ex. F) and the Schedule of Charges incorporated therein did not express what the parties intended, and that what the parties intended was omitted therefrom inadvertently and by mistake. By clear, precise and convincing evidence, it was proved that Carrier, which seeks to enforce the Schedule of Charges, a part of the written agreement, has admitted and acknowledged that it did not express in the Schedule of Charges what the parties intended, and that what the parties intended was omitted from the Schedule of Charges by inadvertence and mistake. See: Dunn v. Orloff, 420 Pa. 492, 218 A. 2d 314 (1966); In re Boyd's Estate, 394 Pa. 225, 146 A.2d 816 (1958); Ward v. Zeigler, 285 Pa. 557, 132 A. 798 (1926).
Moreover, the contract carrier was required by law to file with the I.C.C. a rate schedule in conformity with the actual contract made with Knox. Since the filing of a correct tariff was its sole responsibility, Carrier's failure to do so was a breach of its contractual duty to Knox. To the extent that Knox was damaged thereby, it would be entitled to damages from Carrier, thus negating any undercharges to which Carrier might be entitled if the strict rule applicable to common carriers by rail should be applied.
Despite its admission and agreement not to make any claim for alleged undercharges, and its unvarying conduct over the years in billing Knox according to the actual contract between the parties, and despite the unconcern of the I.C.C., Carrier contends that it is entitled to recover from Knox the difference between the transportation charges actually paid and the charges computed on the basis of the filed, albeit erroneous, Schedule of Charges (Ex. C). It contends that under the law no act or omission on its part may estop it from collecting less than the filed charges. In short, it insists that the law of contracts and equity must give way to the statutory requirement as is the case if Carrier were a common carrier.
We do not agree.
Under the facts and circumstances of this case, we think the intentions of the parties expressed by the parol terms of their private contract, and the disclaimer of Carrier, should prevail.
Contract carriage is grounded on individual contracts between shippers and contract carriers. It is not based on a continuing offer to provide service to the general public, as is common carriage. Common carriage is regulated to protect the public from price discrimination; contract carriage is regulated to protect common carriers from cut-throat competition by contract carriers (§ 318(b), 49 U.S.C.A.). Subject to that limitation, contract carriage is special and individual; its purpose is to meet the needs of the particular shipper. Thus the shippers need not look at the rates filed by the contract carrier, whereas the shipper by common carrier is absolutely bound by the filed tariff of the common carrier.
Since the rates actually charged Knox by Carrier were competitively comparable to those charged by common carriers operating in the vicinity, it is obvious why the I.C.C. expressed no concern in any action to enforce collection of the alleged undercharges. No common carrier was injured competitively by Carrier's mistake. On the other hand, if the rates mistakenly filed by Carrier were enforced by this court, not only would effect be given to Carrier's mistake and omission, but it would also enable Carrier to collect exorbitant rates for past services far in excess of those charged by common carriers offering similar services during the same period.
It is our opinion that in this action between parties to contract carriage, as distinguished from common carriage, contract principles should be applied in determining their rights and liabilities and not the rates filed in the erroneous Schedule of Charges. Accordingly, judgment will be entered in favor of Knox.
CONCLUSIONS OF LAW
1. This court has jurisdiction to hear and determine this action, which arises under an Act of Congress regulating commerce, i.e., the Interstate Commerce Act, 28 U.S.C. § 1337.
2. Carrier as a contract carrier was responsible under the Interstate Commerce Act for preparing and filing with the Interstate Commerce Commission a correct Schedule of Charges in accordance with its contract with the shipper, Knox.
3. The failure by Carrier to publish a correct Schedule of Charges does not subject the defendant Knox to liability for payment of additional charges in accordance with an erroneous Schedule where both the shipper and the carrier agree that the Schedule does not reflect the contract between the parties.
4. Although the Interstate Commerce Act provides that a contract carrier shall not charge less than the rates specified in its schedule of charges, this provision does not subject a shipper to liability to the contract carrier for payment of schedule charges which carrier admits are incorrect.
5. Decisions of the Interstate Commerce Commission and legislative history of the Interstate Commerce Act clearly demonstrate that the purpose of contract carrier regulation is to protect the common carrier.
6. So far as the purposes of economic regulation of contract carriage are concerned they were completely satisfied by the freight charges published by Carrier (although incomplete by reason of the mistaken or inadvertent omission of the stoppage in transit rule) in view of the rates filed by the common carriers, W. I. Womeldorf & Sons and Motorway Corporation.
7. In view of all of the facts in this case, to permit Carrier, a contract motor carrier, to recover additional hauling charges based upon its admittedly erroneously published Schedule of Charges would unduly and unconscionably enrich Carrier who is responsible for publishing such Schedule of Charges. Such a result would be contrary to the purposes and principles of those sections of the Interstate Commerce Act which regulate contract motor carriers.
8. Judgment should be entered in favor of the defendant Knox.