The e 1 Eastern District of Missouri.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 98-1780EM
Imports, Etc., Ltd., a Missouri Corporation, * * On Appeal from the United * * * ABF Freight System, Inc., a Delaware Corporation, * *
Submitted: September 25, 1998

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Imports, Etc., Ltd. brought t that ABF violated the terms of the parties’ delivery contract by ac payment not specified in their agreement. The District Court 1-2-

Imports, a nd ABF appeals that judgment. We affirm. We hold that a shipper and a carrier may lawfully contract for a specific form of COD payment.
On July 9, 1996, Imports and ABF entered into an agreement, the Alternat e StraightBil l of Lading, for ABF to deliver 511 cartons of women’s shoes to A& M Depar tment

Stores. The bill of lading included the specification that the delivery b e “COD Cashiers Check,” and that ABF collect payment on behalf of Imports. The ABF drivera lso had to collect a COD fee and freight charges. The driver arrived at th e delivery location listed on the bill of lading to fi nd a company named Bag Bazaar, rather than A&M. Bag Bazaar representatives contacted A&M representatives

. Ap proximately one hour later several men and two Ryder rental trucks arrived with certifi ed checks (as opposed to cashier’s checks) for the COD and freight charges

. Because the A&M representatives did not have a check for the COD fee additiona l telepho ne calls between A&M and ABF, and between A&M and Imports, followed

. Eventually the ABF driver accepted the two certified checks and cash for the COD fee.

ABF e ndorsed and deposited the certified check for the freight charges. Th e check was later returned to AB F because the account upon which the check was drawn had been closed. Imp orts, however, neither endorsed nor deposited the certified check forthe s hoes. The certified check did not comply with the specific type of paymen t called for in the bill o f lading. Additionally, Imports was suspicious of both the face of the certified check and the delivery circumstances. As it turned out, Imports’ fears were well founded. Evidently the bank certification stamped on the face of the check i n question was a forgery. Imports then filed this action against ABF, seeking damages in the amount o f $53,180. 90, the full value of the COD payment. The District Court awarded Import s $53,180.90, plus interest, and ABF appeals.Neither party raised the issue of applicable state law. The District Court refers 2 to Missouri law, and we will do the same. -3- We agree wit h the District Court that ABF broke its contract with Imports b y accepting a bank certified check rather than a cashier’s check for the COD payment. It could be argued that virtually no difference exists between a cashier’s c heck and
a b ank certified check (assuming both instruments are genuine). Both should b e equivalent to cash. See Center Vide o Industrial Co., Inc. v. Roadway Package System, Inc. , 90 F.3d 185, 188 (7 Cir. 1996). The use of either should therefore guarante e th payment to the payee.
Misso uri’s Uniform Commercial Code defines a certified check as “a chec k 2 accept ed by the bank on which it is drawn.” Mo. Rev. Stat. § 400.3-409(d) (1998)

. Acceptance of a certified check is made either by the drawee’s signature or “by a writing on the check which indicates that the check is certified.” Mo. Rev. Stat. § 400.3-409(a), (d) (1 998). Because the bank charges the drawer’s account for the certified chec k amount at the time of certification, the bank guarantees the availability of the funds for the payee. See Center Video , 90 F.3d at 189. A cashier’s check is defined as “a draft with respe ct to which the drawer and drawee are the same bank.” Mo. Rev. Stat. § 400.3- 104(g) (1998). The customer provides payment to the bank for the cashier’ s check at the time the bank issues the check. The bank therefore makes a guarantee to the payee for a cashier’s check as well. See Center Video , 90 F.3d at 188.
The p rimary difference between a bank certified check and a cashier’s chec k
see ms to lie in the ease with which one can create a fraudulent instrument. In order to forge a cashier’s check one would need to replicate all of the features of t he bank’s form. To forge a bank certifie d check, on the other hand, one need only have a writing on the check indicating that the check is “certified.”B ycontrast, the filed-rate doctrine does not apply to contract motor carriers

. 3 One court has held that the question whether a carrier is a co mmon carrier or a contract carrier is within the primary jurisdiction of the Interstate Commerce Commissio n (who se functions have now been transferred to the Surface Transportation Board)

. Jo nes Truck Lines, Inc. v. Acme Frame Prods., Inc. , 1994 WL 408746 (E.D. Ark.)

. ABF’s status as a motor common carrier is not in question in this case. -4- In any case, Imp orts had a right to believe that a cashier’s check is a better form of paymentthan a certified check. The agreement that ABF would accept only a cashie r’s check reflects this belief. Imports relies on a case in which a carrier whic h accepted a co rporate check rather than a cashier’s check as COD payment was held in breach of its contract with the shipper. See Computel, Inc. v. Emery Air Freight Corp. , 919 F.2 d 678, 682 (11 Cir. 1990). Although a certified check differs from a n th uncertified

corporate check, the decision highlights the importance of Imports’ interest in the form of payment it specifi ed, and to which ABF agreed. Imports did not agree to
acce pt the risk that a certified check might be fraudulent. Instead, it contracted for a more secure form of COD payment. ABF invokes what is commonly called the “filed rate doctrine,” th ough it does not
use t hose words. Under the Interstate Commerce Act, the filed rate doctrine require s that a carrier “not charge or receive a different compensation for the transportation o r ser vice than the rate specified in the tariff.” See 49 U.S.C. § 13702(a) (1998). As a common carrier, ABF is subject to the requirements of the Act. See 49 U.S.C. § 13501 (1998). 3 A recent United States Supreme Court decision addressing the filed rate doctrine helps hig hlight the issue between ABF and Imports. See American Telephone an d Teleg raphCo. v. Central Office Telephone, Inc. , 118 S.Ct. 1956 (1998). The Cour t analyzedthe filed rate doctrine under the Communications Act. See id. at 1962. The Communications Act provisions are modeled after the Interstate Commerce Act, and-5-

both acts a im to prevent discriminatory charges. The same analysis applies in th e present context. The filed rate doctrine does not apply to ra tes alone, but to any terms or practices that might affect the rates as well. See id. at 1963. See also 49 U.S.C. §13702(a ) (1998). American Telephone and Telegraphreversed the Ninth Circuit’s judgment that the filed rate doctrine did not apply to the case because the terms in question dealt with special services for filling orders and billing rather than directly with rates. Se e American Telephone and Telegraph , 11 8 S.Ct. at 1964. Special services can, however, affect rates. “An

unreasonable ‘discrimination in charges’ . . . can come in the form of
a lower price for an equivalent service or in the form of an enhanced service for a n equivalent price.” Id . at 1963 (quoting Compet itive Telecommunications Assn. v. FCC , 998 F.2d 1 058, 1062 (D.C. Cir. 1993)). For AT&T and COT, the parties in American Telephone and Telegraph , the proffered special serv ices affected the rates because COT would get more for its dollar. P aying the filed rates and receiving additional services at no extra cost “is certain ly a privilege within the meaning of . . . the filed-rate doctrine.” Id . at 1964.
The key, however, is not only whether agreed-upon terms outside of the tarif f pr ovide one party with a benefit, but also whether the other party incurs an additiona l cost. The filed rate doctr

ine bars any “special agreement which affects the value of the
ser vice to the shipper and [the] cost to the carrier.” Id . at 1966 (Rehnquist, C.J. , concurring) (q

uoting Chicago & Alton R. C. v. Kirby , 225 U.S. 155, 165 (1912)). We do not see how the agreement in the bill of lading that ABF would accept only a cas hier’s check as COD payment increased ABF’s costs. The filed-rate doctrine , therefore, does not bar this action. ABF claims that the District Court erred by considering only the bill of lading, and not the terms and conditions of ABF’s tariff as well. The bill of lading incorporated the tariff by reference. ABF’s tariff lists the forms of COD payment-6-

accepted by ABF as (1) cash up to a maximum of $500.00; (2) bank cashier’s check; (3) bank certified check; (4) money order; or (5) personal check of the consignee when so authoriz ed by the consignor. The bill of lading, on the other hand, directed ABF t o accept only a cashier’s check as COD payment. The District Court did not ignore ABF’s tariff. The Court pointed out that a lthough ABF’s tariff allows for COD by c ertified check, the bill of lading specifically stated that only a cashier’s check was acceptable payment for this particular delivery. We do not
see a necessa

ry conflict between ABF’s tariff and the bill of lading. The tariff does not expressly state t

hat the parties to the contract may elect one of the enumerated forms of payment. Nor, however, does it indicate that if the parties do so, such a choice is barred.

ABF also claims that if a conflict arises between a bill of lading and a tariff, th e tariff pre vails. In some cases a tariff will prevail over a conflicting term or condition in a bill of lading. See M.E. Denby v. Seaboard World A irlines Inc. , 737 F.2d 172, 186 (2 d Cir. 1984). Most of those cases, howe ver, address conflicts related to the rates a carrier l i sts in its tariff. When the conflicting agreement provides the shipper or other party to the agreement with preferential rates, whether directly or indirectly, the tariff will prevail. If, however, the agreement does not relate to the rates, the tariff need not necessaril y prevail. Special arrangements for a spec ific delivery time, for example, indirectly affect the rate. A shipper who contracts to have goods delivered i n less time than that specified in the tariff sav es money by having the goods delivered in less time. Therefore, when a contr actspecifying a certain delivery time conflicts with the terms of a tariff, the tarif f terms preva il. Comark, Inc. v. United Parcel Service, Inc. , 701 F. Supp. 641, 64 3 (N .D.Ill. 1988). When contract terms do not affect rates, or simply complete o r supplement tariff terms, a different rule applies. Accordingly, a contract provisio n requ iring the purchaser of airline tickets to pay for the tickets even when the ticket s remain unuse d does not conflict with the airline’s filed tariff. The no-show provisio n does not affect the rate or terms of the tariff. It simply indicates that payment-7-

was due r egardless of use. Northwest Airlines, Inc. v. United States , 444 F.2d 1097 , 1100-01 (Ct. Cl. 1971). Contract terms regarding acceptable types of COD paymen t similarly do not affect filed rates. Requiring uniformity in the rates charged by a carrier, and barring specia l agreements relating to those ra tes, helps prevent discrimination. An agreement between a shipper and a carrier regarding the type of acceptable COD payment , on the other hand, does not purport to vary the rates set in the tariff. It does not result in preferential rate trea tment. It does not increase the carrier’s costs. Contracting for a carrier to accep t only a certain type of COD payment, one listed as an acceptable form of payment in the carrier’s tariff, is not an unlawful agreement between shipper and carrier.

For these reasons, we affirm the District Court’s judgment in favor of Imports. BEAM, Circuit Judge, dissenting.
The court choo ses to side-step the well established requirements of the "centuryold filed rate doctrine," American Telephone and Telegraph Co. v. Central Offic e Telephone, Inc. , 118 S. Ct. 1956, 1962 (1998) (AT&T), in its construction (in my view, misconstruc tion) of the shipper/carrier contract at issue in this case. In the process, the court reaches an exceedingly unjust result. Accordingly, I dissent. Imports Etc., Ltd. (Imports) apparently decided to do business with a group of base individuals or, at least, with an entity operated by per sons who were, it seems, dishonest. Apparently sensing the risky nature of this particular transaction, Imports unilaterall y added the words "COD CASHIERS CHECK" to the face of the Alternate Bill of Lading (BOL) deli vered to ABF Freight System, Inc.'s (ABF) truck driver. These additiona l words w ere inserted, as I understand it, without any meaningful negotiations betwee n authorized officials of either party. These words, so the court-8-

says , modified the ABF tariff that was in full force and effect and incorporated b y reference into this contract for t ruck transportation and COD collection services. Under thi s purported modification, ABF not only loses its shipping fee of $2,843, but is als o victimized by Imports' risky dealings to the tune of $53,180.90, the alleged value of the shoes delivered to Imports' nefarious customer. The Supreme Court reminded us in 1998 that the "filed rate doctrine" is alive and well. See id. at 1963. Shippers are charged with notice of it and carriers must abide by it. See id. at 1962-63. And, the doctrine deals not just with rates, because they do not exist in isolation, but also extends to nonprice features, such as COD collection services. See id. at 1963.
There is no dispute between the parties that ABF's published tariff wa s incorporated in the bill of lading by reference and w as part of the transportation contract. The tariff reads in pertinent part: "Only the following forms of payment will be accepted: (1) cash up to m aximum of $500, (2) bank cashier's check, (3) bank certified check, (4) money order, or (5) personal check of the consignee when so aut horized in writing by the consignor." I concede that the Negotiated Rates Act of 1993, Pub. L. 103-180, 107 Stat. 2044 (codified as amended in scattered sections of 49 U.S.C.), prov ides for some shipping rate exemptions and for some defenses against carrier "undercharge" clai ms, and the Trucking Industry Regulatory Reform Act of 1994 (TIRRA), Pub. L. 103-311 Title II, 108 Stat. 1683 (co dified as amended in scattered section of 49 U.S.C.), eliminates the need fo r car riers to file tariffs containing individually negotiated rates with the Surfac e Transportation Board. However, neither Act eliminated the filed rate doctrine or the use of tariffs, nor are the terms of these Acts directly applicable to this dispute. There are no undercharge or exemption cl aims at issue nor is an individually negotiated shipping rate in dispute.-9-

Under the filed rate doctrine, the shipper is charged with knowledge of th e contents of the tariff. See AT&T , 118 S. Ct. at 1962. Traditionally, even if the carrier and ship per negotiated for new rates or services, the shipper had no right to rely o n anything other than

the filed tariff, which allowed no deviation in rates or services. See id. at 1963. In the trucking industry, now that carriers are allowed under TIRRA t o negotiate individual tariff conditions, deviation is allowed when negotiated . Under the facts presented in this case, there is no indication that an agreement deviating from the ta riff was contemplated by either party, much less negotiated. The issue then becomes one of ta riff interpretation. Tariffs are interpreted using the same principles as contract interpretation. See Carrier Serv., Inc. v. Boise Cascade Corp. , 795 F.2d 640, 642 (8th Cir. 1986).
The tariff provision is not ambiguous on its face. Clearly, there is no languag e present which can be construed as giving the shipper a choice of one method to th e exclusion of others. Even if the tariff were ambiguous, it could only be construed a s providing a shipper an option if Imports presented evidence of custom and usage in the industry , or past course of dealings. No such evidence was advanced. Indeed, the fact that the shipper is specifically given an option regarding a consignee's personal check, but given no other options, argues strongly that the tariff precludes th e menu theory advanced by Imports and the court.
Under the filed rate doctrine, Imports had no right to rely on any modification of th e rate or service provided for in the tariff. See AT&T , 118 S. Ct. at 1962-63. Eve n underth e more relaxed statutory framework now in place, an effective tariff, withou t negotiationto the contrary, must control the relationship between the ship per and carrier. To argue otherwise is to assert that carriers must give their drivers authority to modify their tariffs. While drivers must nec essarily have the authority as agents of the carrier to
cou nt and inspect loads, and sign a BOL, thus binding the carrier to certain liabilitie s anti cipated under the terms of the tariff, without any indication to the contrary, a driver cannot be expected to have the authority to bind the carrier to-10-

promises not contained in the tariff. U nder the court's theory, if the shipper writes "20% discount" on the BOL and the driv er signs for the load, the carrier is bound by the lower rate. Without actual negotia tions to strike an individual deal, the tariff simply cannot be modified in the manner suggested by the court. Similarly, unde

r a straight contract analysis, the extra service of collecting only a cashier's c heck is unsupported by additional consideration. The court asserts that th e filed r ate doctrine does not bar a special arrangement unless the shipper receives a n increased va lue and

the carrier incurs increased cost. I find no case law or statutory supp ort for this holding and the court cites none. Such an analysis of the filed rat e doctr ine bears no relationship to the purpose of the doctrine–the prohibition o f discriminat ory pricing and practices. Even if the court's theory is correct, it i s inapplicable here. By Imports' attempted limiting of the al lowed forms of COD payment, AB F incurred a greater risk by increasing its exposure to potential liability. Greate r liability results in greater cost, in this case, $56,023.90 worth. The court also holds that the modified service allegedly agreed to by the parties did not "affect the rate" and is therefore not barred by the filed rate doctrine. Import s received a service—at no charge—not provided for in the tariff. In essence, they go t more for t heir money, thus affecting the rate. See id. 118 S. Ct. at 1963. (a filed rat e violationcan come in the form of a lower price for an equivalent service or in the form of an enhanced service for an equivalent price). Under both the law and the equities, the court's result is wrong. I dissent. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.