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FIRST NATL. BANK & TRUST CO. v. CONSOLIDATED FREIG

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


July 24, 1992

FIRST NATIONAL BANK & TRUST COMPANY OF NEWTOWN, Plaintiff
v.
CONSOLIDATED FREIGHTWAYS, EMERY & PUROLATOR WORLDWIDE AND CARGO, PUROLATOR COURIER CORP., Defendants

The opinion of the court was delivered by: BY THE COURT; ROBERT S. GAWTHROP, III

MEMORANDUM AND ORDER

 Gawthrop, J.

 After a bench trial, this court filed an opinion on June 17, 1992, finding Purolator Courier Corporation ("Purolator") liable for the full damages caused by its delay in shipping five shipments of cash letters from First National Bank and Trust Company of Newtown ("FNB") to its correspondent bank in Philadelphia. The court found that Purolator's liability was not limited by its tariff or its bills of lading because it did not charge a tariff rate, but instead billed FNB at a flat, contract rate. Purolator has filed a motion for reconsideration. Having reviewed the opinion, the briefs, and the relevant caselaw, I reaffirm my original decision, upon the following reasoning.

 DISCUSSION

 Purolator argues that this court erred as a matter of law in finding that because Purolator did not charge First National Bank ("FNB") its filed tariff rates, it could not limit its liability for delayed delivery of five shipments by applying the liability limitations found in its bills of lading. Purolator contends that the judgment should be amended to $ 800, the total amount provided for in the bills of lading, for two reasons: (1) Purolator claims that the court failed to consider or apply the provisions of 13 Pa.C.S. § 7309, concerning bills of lading and contractual limitation of liability; and (2) if the tariff applies, then the court must enforce all provisions of the tariff.

 The consideration of 13 Pa.C.S. § 7309 supports, rather than contradicts this court's analysis of the interdependence between the carrier's charging of rates according to the value of the item shipped and the shipper's opportunity to choose between higher or lower rates, accepting a lower or higher risk, respectively. Section 7309 provides:

 (b)Contractual limitation of liability -- Damages may be limited by a provision that the liability of the carrier shall not exceed a value stated in the document if the rates of the carrier are dependent upon value and the consignor by the tariff of the carrier is afforded an opportunity to declare a higher value or a value as lawfully provided in the tariff, or where no tariff is filed he is otherwise advised of such opportunity . . . (Emphasis supplied).

 As a condition precedent to the validity of a bill of lading's limitation-of-liability provision, a carrier must charge rates dependent upon value. This Purolator did not do. Thus, for the reasoning laid out at length in my previous opinion, Purolator's tariff does not apply and its liability limitations are not enforceable.

 Since I reaffirm my conclusion that Purolator's filed tariff does not apply, I need not address Purolator's second argument that if the tariff does apply, the court must enforce all of its provisions. I do, however, deem it necessary to expand briefly on my treatment of the filed rate doctrine at footnote 10 of the opinion. Purolator argues that because it was entitled to charge and collect the filed tariff rate, even though it did not, the liability limitations in the tariff are enforceable as well. The filed rate doctrine provides that neither a carrier nor a shipper can avoid the filed rate. Even if a carrier charges and the shipper pays a negotiated amount, not included in the carrier's tariff, the carrier can still later collect any undercharges because the tariff rates are the only legal rates. See Maislin Industries, U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 111 L. Ed. 2d 94, 110 S. Ct. 2759 (1990); Bowser and Campbell v. Knox Glass, Inc., 390 F.2d 193, 194 (3d Cir. 1968); Interstate Commerce Commission v. Transcon Lines, F.2d (9th Cir. June 17, 1992), 1992 WL 134214 at *9.

  Purolator has pointed the court to no case, nor has my independent research unearthed one, that applies the filed rate doctrine in the context of a carrier's attempt to enforce its liability provisions after charging something other than a filed tariff rate. This is not a case in which the carrier is trying to recover undercharges of its filed rate. Here, the carrier seeks to enforce its tariff's liability limitations when it charged the shipper, FNB, a contract rate, rather than the legal tariff rate for carriage. Purolator's contention that the court mistakenly relied on Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859 (1st Cir. 1987), to support its decision is unfounded. In Polyplastics, the carrier, Transconex, Inc., gave the shipper, Polyplastics, Inc., a choice between shipping its trailer using a flat fee of $ 500.00, allowing the carrier to fill the trailer with other packages being transported, or paying the scheduled rate, which was in excess of $ 2500.00. Because the shipper and carrier decided to ship with a flat fee, rather than a tariff rate related to the value of the item shipped, the court held that the carrier's liability for the lost shipment was not limited by its limitation-of-liability provisions found in its tariff or its bills of lading.

 Purolator claims that because the factual situation there was more a barter arrangement than the traditional shipper/carrier relationship, that the court's legal discussion and conclusions should be disregarded. I disagree. The Polyplastics court's analysis of the difference between the tariff rate and a flat contract amount and its impact on a shipper's ability to choose between different rates is persuasive in this context as well, regardless of the unique set of facts to which that analysis was directed.

 Purolator's allegation that FNB did have the option of choosing different rates, since the rate it ultimately "elected" to be charged -- a flat amount -- was lower than the tariff rates, has no evidentiary support. Nowhere in the record of this case is there any evidence as to how the flat rate was negotiated and decided upon, how it related to the tariff rates, or how it would have changed had FNB declared a greater value on Purolator's bills of lading. Purolator's argument concerning election of rates was rejected earlier, and its averments in this motion that FNB was paying discounted rates compared to the tariff rates has no basis in the record. It is Purolator which has the burden of proving that its liability is limited. See Carmana Designs Ltd. v. North American Van Lines Inc., 943 F.2d 316, 319 (3d Cir. 1991). After reviewing my decision, upon Purolator's request, I reaffirm my earlier conclusion that Purolator has not carried that burden.

 An order follows.

 ORDER

 AND NOW, this 24th day of July, 1992, upon consideration of the motion of defendant, Purolator Courier Corporation, for reconsideration of this court's opinion and entry of judgment on June 17, 1992, and plaintiff's response thereto, it is ORDERED that the motion is GRANTED, and I shall reconsider. It appearing to the court, however, that the initial determination was legally and factually accurate, and the conclusions drawn were proper, the judgment originally entered in this case is REAFFIRMED.

 BY THE COURT:

 ROBERT S. GAWTHROP, III J.

19920724

© 1992-2004 VersusLaw Inc.



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