The opinion of the court was delivered by: MENCER
This is an action to recover freight charges for the transportation of cement in interstate commerce. The shipments were made under uniform bills of lading prescribed by the Interstate Commerce Commission for use in interstate shipments. See In re Bills of Lading, 52 I.C.C. 671 (1919). The parties have filed cross motions for summary judgment. The plaintiff's motion is denied. The defendant's motion is granted for the reasons set forth below.
We find after a review of the entire record that no genuine issue of material fact exists in this case. Fed.R.Civ.P. 56(c). There is no dispute that T.C. Trucking Company (T.C.) actually took possession of and transported from Bessemer Cement Company (Bessemer) cement in the amount claimed by the plaintiff. The only issue to be resolved is a legal one, that is, did Bessemer effectively sign the "non-recourse" clause found on each of the bills of lading involved in the shipments for which T.C. seeks payment of their transportation charges. If Bessemer did sign the non-recourse clause, they are free of any liability for the cost of shipping the cement and T.C. must look to the purchaser of the cement for payment of the transportation charges. See Illinois Steel Company v. Baltimore & Ohio Railroad Company, 320 U.S. 508, 515, 88 L. Ed. 259, 64 S. Ct. 322 (1944); Atchison, T. & S.F. Ry. Co. v. Midland Cooperatives, Inc., 306 F. Supp. 723, 726 (E.D.Okla. 1967). We rule here that Bessemer did sign the non-recourse provision and, therefore, is entitled to judgment as a matter of law.
Between April 22, 1982 and July 19, 1982, T.C. transported 1,884.52 tons of cement from Bessemer's plant in Bessemer, Pennsylvania to the facilities of Alpha Concrete Corporation in South Euclid and Cleveland, Ohio. In support of its motion, T.C. has submitted copies of the bills of lading governing these shipments. Bessemer does not contest the validity of these bills of lading and, in fact, relies on them in support of its own motion. Section 7 of the conditions applicable to these bills of lading provides as follows:
The consignor shall be liable for the freight and all other lawful charges, except that if the consignor stipulates, by signature, in the space provided for that purpose on the face of this bill of lading that the carrier shall not make delivery without requiring payment of such charges and the carrier, contrary to such stipulation shall make delivery without requiring such payment, the consignor . . . shall not be liable for such charges.
Subject to Section 7 of conditions, of applicable bill of lading, if this shipment is to be delivered to the consignee without recourse on the consignor, the consignor shall sign the following statement:
The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges.
This provision is generally referred to as the non-recourse clause. Below this provision is a space for the "Signature of Consignor". On each of the bills of lading, Bessemer pre-printed the words "BESSEMER CEMENT CO." in this space.
The only question left for resolution is whether, by preprinting its name in the space provided for the consignor's signature, Bessemer "signed" the non-recourse provision thereby avoiding liability for the transportation charges.
The Federal Bill of Lading Act, 49 U.S.C.A. §§ 81-124 (West 1951), governs the use of bills of lading in interstate shipping. The Interstate Commerce Commission pursuant to the Interstate Commerce Act adopted the form of uniform domestic bill of lading involved here. Bills of Lading, 52 I.C.C. 671. We have, however, been unable to locate any federal statutory or decisional law directly applicable to the question of what ...