The opinion of the court was delivered by: Rambo, District Judge.
Plaintiffs, Horn's Motor Express, Inc. (Horn's) and Mark
Services, Inc., (collectively plaintiffs) submitted a motion
for summary judgment in the captioned action on March 13, 1991.
The following day defendant, Harrisburg Paper Company, filed a
motion to refer this action to the Interstate Commerce
Commission (ICC) and to stay the instant action pending the
outcome of the ICC proceedings. Although plaintiffs accelerated
the briefing on their summary judgment motion, the court
withheld consideration of it until briefing was complete on
Harrisburg Paper's motion to stay and refer. That motion is now
ripe for the court's decision.
Horn's, a motor carrier engaged in interstate commerce under
the authority of the ICC, moved freight for Harrisburg Paper a
number of occasions between July 15, 1987 and January 31, 1989.
The parties negotiated a flat rate of $375.00 for some of the
shipments at issue and a $412.00 flat rate for others at issue,
which Horn's billed and Harrisburg Paper paid. The negotiated
rate was lower than the tariff rates Horn's had filed with the
ICC, and Horn's never published the negotiated rate.
In 1989, Horn's began bankruptcy liquidation proceedings. In
furtherance thereof, Horn's contracted with plaintiff Mark
Services to audit all freight bills issued in the preceding
three years and collect for any amounts billed at less than the
relevant tariff filed with the ICC by Horn's. Mark Services
discovered the discrepancy between the negotiated rates and
Horn's filed tariff and billed Harrisburg Paper for the
difference. Harrisburg Paper refused to pay the amounts, after
which plaintiffs filed the instant action to recover the
undercharges. Plaintiffs now move for summary judgment on the
grounds of the filed rate doctrine. Harrisburg Paper moves for
a stay of the action and referral to the ICC for a
determination on whether Horn's filed rate is unreasonable and,
The filed rate doctrine is a judicially announced doctrine
under which the Supreme Court has held consistently that the
filed tariff alone dictates the legal rights between a shipper
and carrier as to undercharges. See, e.g., Keogh v. Chicago &
Northwestern R. Co., 260 U.S. 156, 163, 43 S.Ct. 47, 49, 67
L.Ed. 183 (1922); Maislin, 110 S.Ct. at 2761. The doctrine
precludes such equitable defenses to undercharge actions as
misquotation or the shipper's ignorance of the filed rate.
Maislin, 110 S.Ct. at 2761. The rule has always been subject,
however, to the exception that the filed tariff may not be
unreasonable within the meaning of the statute. Id. at 2767.
Maislin addressed a policy known as the "negotiated rates"
policy, which had been administratively created by the ICC to
deal with attempts by carriers to collect filed rates in spite
of the fact that they had negotiated rates lower than the filed
tariff. As in the instant case, Maislin involved a carrier that
negotiated rates lower than those in its filed tariff, failed
to file the negotiated rates, and in the process of subsequent
bankruptcy proceedings, filed a claim to collect the
undercharges from the shipper. Upon the district court's
referral of the action, the ICC applied its negotiated rates
policy, which relieved shippers of liability for higher filed
rates on the theory that it was an unreasonable practice to
demand payment of filed rates when the parties had negotiated
lower rates. Id. at 2760. Under the negotiated rates policy,
the question of whether a rate was unreasonable under the
statutory standard of 49 U.S.C. § 10701(e) was never reached.
Rather, the ICC would relieve a shipper of liability upon a
showing that the carrier was trying to collect a filed rate
that was higher than the negotiated rate.
The Maislin court struck down the ICC's negotiated rates
policy, finding it to be blatantly inconsistent with the filed
rate doctrine, and the scheme of the Interstate Commerce Act,
in particular, sections 10761 and 10762. Id. at 2761.
Acknowledging the sometimes harsh results engendered by the
filed rate doctrine, the court reaffirmed that a carrier must
collect the filed rate even though it may be substantially
higher than the negotiated rate. Id. The court pointed out that
the doctrine ensures that the underlying purpose of the filing
and collecting requirements of § 10761(a), the prevention of
illegal price discrimination, will be upheld. See id.
The court, nonetheless, reaffirmed the rule that a tariff
rate will not be enforced if the ICC determines the tariff is
unreasonable. At the same time, the Maislin court implicitly
made clear that the determination of unreasonableness may not
turn alone upon the fact that a filed rate is higher than a
negotiated rate. See id. at 2761. Thus, the Maislin court
signalled its recognition of the difference between a challenge
based on an unreasonable practice theory linked to filed and
negotiated rates and a challenge based on the unreasonableness
of the rate in the context of the industry's economic climate.
Plaintiffs' arguments are as follows. First, plaintiffs argue
that the Maislin decision's reaffirmance of the filed rate
doctrine and rejection of the ICC's negotiated rates policy
compels summary judgment in their favor. Plaintiffs also imply
that Maislin supports their position against referral of this
action to the ICC for a preliminary determination on whether
Horn's filed tariff was unreasonable. Plaintiffs, however, rely
primarily upon T.I.M.E. v. United States, 359 U.S. 464, 469, 79
S.Ct. 904, 3 L.Ed.2d 952 (1959), to argue against referral on
the theory that rate unreasonableness is not available as a
defense to a
common carrier's undercharge collection suit.
T.I.M.E., plaintiffs argue, makes a reparations action by the
shipper the exclusive method for challenging unreasonable
rates. Alternatively, plaintiffs argue that even if rate
unreasonableness is a viable defense, Harrisburg Paper has not
presented evidence sufficient to justify referral of the
unreasonableness question to the ICC.
Harrisburg Paper argues that the holding in Maislin did not
alter the right of a shipper to a determination of whether a
carrier's filed rate is reasonable. To demonstrate that a
question of unreasonableness exists, Harrisburg Paper urges
that the "class rates," which plaintiffs now seek to collect,
are unreasonably high in light of the economic and
technological changes engendered by the enactment of the Motor
Carrier Act of 1980, P.L. 96-296 (July 1, 1980), as well as a
comparison of Horn's rates to those of its competitors for the
relevant time period, freight, and route. Harrisburg Paper
submits that Horn's filed rates were merely "paper rates," that
were so much higher than the actual competitive rates that no
freight moved under those rates. Attached to Harrisburg Paper's
brief were two affidavits and supporting documents ...