CHICAGO, B. & Q. R. CO. v. READY MIXED CONCRETE CO.

ROSS, Circuit Judge.

Chicago, Burlington and Quincy Railroad Company (hereinafter CBQ) brought this action against Ready Mixed Concrete Co. (hereinafter Concrete Co.) for unpaid switching charges pursuant to a tariff which had been approved by the Interstate Commerce Commission (hereinafter ICC). The switching charges in question were for the period of April, 1965, to November, 1966. The total switching charges pursuant to the tariff amounted to $21,467.91. The sum of $9,226.23 was paid to CBQ by the Concrete Co. on February 2, 1967,1 pursuant to an agreement between CBQ and the Concrete Co. whereby CBQ agreed to accept that sum as payment in full of switching charges accruing prior to the date of settlement.

As a part of the settlement the Concrete Co. agreed to support a change in the tariff by the ICC calling for an increase of five cents per ton of material hauled, and CBQ agreed that as of the effective date of the new tariff the switching cost would be reduced to $5.77 per car. CBQ agreed to petition the ICC for permission to waive switching charges over and above $5.77 per car for the period prior to the effective date of the new tariff.2 The revised tariff was approved by the ICC with an effective date of November 16, 1966.

For the period subsequent to November 16, 1966, the Concrete Co. paid switching charges of $5.77 per car and the increased hauling charge of five cents per ton. The only period with which we are concerned in this lawsuit is the period prior to the effective date of the change in tariff, November 16, 1966. Concrete Co. argues that the switching charges in excess of the $5.77 per car for the period prior to November 16, 1966, were cancelled in exchange for the additional hauling charges it agreed to pay and did pay for the period subsequent to November 16, 1966; or in the alternative that the failure of CBQ to file the special docket application estops CBQ from now collecting the full tariff.

The trial court awarded judgment to CBQ in the sum of $12,241.73, the difference between the $21,467.96 in switching charges for the period prior to November 16, 1966, and the $9,226.23 paid to CBQ on February 3, 1967. We affirm the judgment of the trial court with directions to modify the amount of the judgment.

The Court notes first that this lawsuit lacks some of the ordinary elements of a true adversary proceeding. During oral argument it became apparent that CBQ brought this action only because it felt legally obligated to do so under the provisions of 49 U.S.C. § 6(7).3

Oral argument also developed the fact that the stipulation of facts filed by the parties hereto in the district court contained an obviously incorrect statement upon which the trial court relied in regard to the payment of $9,226.23 on February 3, 1967. The exhibits which were attached to the stipulation of facts clearly indicate that the $9,226.23 represented payment for 1,599 cars at $5.77 per car. Of these 1,599 cars, 1,453 were switched prior to November 16, 1966, and 146 were apparently switched subsequent thereto. The proper credit for the period prior to November 16, 1966, is correctly shown by Exhibit No. 1 to be $8,383.81, which is 1,453 cars multiplied by $5.77 per car. The difference between the amount charged pursuant to the tariff ($21,467.96) for the period prior to November 16, 1966, and the amount paid for that period ($8,383.81) is $13,084.15, the amount requested in the complaint filed by CBQ.

Freight Rate Discrimination

The purpose of 49 U.S.C. § 6(7), quoted supra at note 3, is to "have but one rate, open to all alike, and from which there could be no departure." Boston & Maine R.R. v. Hooker, 233 U.S. 97, 112, 34 S.Ct. 526, 528, 58 L.Ed. 868 (1914). So strong is this anti-discrimination provision that the courts have generally refused to recognize an otherwise justifiable defense of estoppel. Thus, in Pittsburg, Cincinnati, Chicago & St. Louis R.R. v. Fink, 250 U.S. 577, 582, 40 S.Ct. 27, 63 L.Ed. 1151 (1919), the consignee of a shipment of goods paid the carrier $15 in freight charges —the amount specified on the bill of lading. It was later learned that the railroad had undercharged the consignee by $15. The Supreme Court held that: "Estoppel could not become the means of successfully avoiding the requirements of [49 U.S.C. § 6(7)] as to equal rates. . ." Id. at 583, 40 S.Ct. at 28. See also New York Central & Hudson River R.R. v. York & Whitney, 256 U.S. 406, 41 S.Ct. 509, 65 L.Ed. 1016 (1921). To put the matter succinctly, "equitable considerations may not serve to justify failure of carrier to collect, or retention by shipper of, any part of lawful tariff charges." Baldwin v. Scott County Milling Co., 307 U.S. 478, 485, 59 S.Ct. 943, 948, 83 L.Ed. 1409 (1939). Although such an approach may create harsh results in individual cases, "instances of individual hardship cannot change the policy which Congress has embodied in the statute in order to secure uniformity in charges for transportation." Pittsburg, Cincinnati, Chicago & St. Louis R.R. v. Fink, supra, 250 U.S. at 582, 40 S.Ct. at 28.

This Court has recognized that the "crucial question . . . is whether judicial recognition of [the] estoppel defense will contravene the anti-discrimination purpose of § 6(7)." Southern Pacific Transportation Co. v. Campbell Soup Co., 455 F.2d 1219, 1222 (8th Cir. 1972). In that case, this Court held that where the railroad delivered shipments to the consignee under bills of lading which indicated that the freight charges were to be prepaid, and the consignee in reliance thereon, reimbursed the shipper in full for the freight charges, the consignee was entitled to raise the defense of estoppel against the railroad, after the railroad had unsuccessfully sought payment from the shipper.

The Court reasoned that no discrimination could take place, assuming the consignee had paid the full amount of the freight charges to the shipper. The Court concluded that its holding would:

It seems clear that the anti-discrimination provisions of § 6(7) would not, in any way, be furthered by requiring a consignee to pay the freight charges twice. The difference between this case and Southern Pacific Transportation Co. v. Campbell Soup Co., supra, is that in Southern Pacific the consignee had paid the full amount of the existing tariff but to the wrong person. Here the full amount of the existing tariff has not been paid to the railroad or to anyone else.

The proper inquiry in this case is whether judicial recognition of the estoppel defense will serve directly or indirectly as a cover for freight rate discrimination. In effect, Concrete Co. claims that it is entitled to a rate at less than the listed tariff because of the agreement heretofore described and because the railroad has failed to perfect a special docket application with ICC in order to seek permission to waive a portion of the tariff. Essentially, Concrete Co., by reference to a private agreement between the parties, seeks to lower the established tariff or attach a nonstatutory condition to the collection thereof.

But as Mr. Justice Brandeis has said:

Stated differently:

Concrete Co. places principal reliance on the case of Western Maryland R.R. v. Continental Grain Co., 219 F.Supp. 126 (S.D.N.Y.1963). In that case the railroad, which had a dispute with Continental and others with respect to the proper storage and detention charges, agreed with the shippers to abide by a decision in a lawsuit, presenting the same legal question, then pending in Maryland. The Maryland decision resulted in a decision favorable to the shippers. Subsequently, in another circuit, in a case involving different parties but the same legal issue, the Circuit Court held for the carrier, Western Maryland then sought to collect the tariffs, allegedly due, from Continental and others. The New York district court concluded that the stipulation of the parties to abide by the decision in the Maryland lawsuit was binding, and did not violate the provisions of 49 U.S.C. § 6(7).

Without deciding whether the Western Maryland decision was correctly decided, that case is distinguishable. Arguably no discrimination took place in that case, since the tariff had been, according to a federal district court, held to be inapplicable. The question implicitly presented in this case, but not in the Western Maryland case, is the effect of such a private agreement prior to the time a ruling has been secured from a court or an administrative agency; that is, does an agreement providing for settlement and submission of the proposed revised tariff to the ICC prohibit collection of the tariff prior to submission? The clear answer to the question is that the parties may not attach a nonstatutory condition to the collection of the tariff: "Until changed, tariffs bind both carriers and shippers with the force of law." Lowden v. Simonds-Shields-Lonsdale Grain Co., supra, 306 U.S. at 520, 59 S.Ct. at 614.

The result we reach is not changed by the fact that CBQ failed to file the special docket application as agreed. Under the statute courts may not permit the tariff to be changed or waived whether it be by agreement of the parties, failure to carry out that agreement, or even by stipulation in court.

We conclude that the full amount of the tariff must be paid by Concrete Co. to CBQ and that judgment was properly entered by the trial court on behalf of CBQ. However, because of the error of the parties in their stipulation, the amount of the judgment awarded was erroneous. The correct amount of the judgment should have been $13,084.15.5

The judgment of the trial court is affirmed but with directions to modify the amount of the judgment to $13,084.15.