United States Court of Appeals,

Fifth Circuit.

No. 91-6196.

THRASHER TRUCKING CO., Plaintiff-Appellee,

v.

EMPIRE TUBULARS, INC., Defendant-Appellant.

Feb. 10, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, SMITH and DeMOSS, Circuit Judges.

REAVLEY, Circuit Judge:

In t his suit to collect alleged transportation undercharges, Empire Tubulars, Inc. (Empire)

appeals summary judgment in favor of Thrasher Trucking Co. (Thrasher). We affirm.

I. BACKGROUND

Thrasher engages in both contract and common m otor carriage, as well as the brokerage of

carrier service, in interstate commerce. After negotiating, billing, and collecting a rate lower than that

which it had on file with the Interstate Co mmerce Commission (ICC), Thrasher sued Empire to

collect alleged transportation undercharges. Empire responded that Thrasher had merely brokered

out Empire' s t ransportation requirements, and should not be allowed to recover the difference

between its filed rat e and actual rates charged because Thrasher did not actually perform the

transportation services contracted and paid for.

The district court granted summary judgment in Thrasher's favor. Empire appeals, arguing

that (1) Thrasher performed its transportati on services pursuant to a contract with Empire, and thus

was a "contract carrier" and not a "common carrier" with respect to Empire, and (2) even if Thrasher

was operating as a common carrier with respect to Empire, since Thrasher was not the actual carrier

of the goods, its filed rate was not "applicable and reasonable" t o goods which it did not actually

carry.

II. ANALYSISThe Interstate Commerce Act (ICA), 49 U.S.C. § 10101 et seq., provides three distinct types

of status: "broker," 49 U.S.C. § 10102(1), "motor common carrier," i d. § 10102(14), and "motor

contract carrier," id. § 10102(15). It is undisputed that Thrasher is empowered to act in any of these

three capacities.

A. B ROKER VS

. C ARRIER

.

A broker "for compensation, arranges, or offers to arrange, the transportati on of property

by an authorized m

otor carrier." 49 C.F.R. § 1045.2(a). Empire contends that Thrasher "brokered"

much of the transportation services which it agreed to provide for Empire; and, therefore, that the

transportation services provided should be billed at the rates of the "actual" carriers (as if Thrasher

were a "broker"), rather than at Thr asher's rat es. While this argument is intuitively appealing, it

squarely contradicts existing law. Section 1045.2(a) continues:

Motor carriers

... are not

brokers within the meaning of this section when they arrange or

offer to arrange the transportation of shipments which they are authorized to transport and

which they have accepted and legally bound themselves to transport.

Id. (emphasis added).

No one disputes that Thrasher was "authorized" to transport Empire's property

. And, if we

accept Empire's argument that Thrasher agreed to provide the disputed services, then Thrasher

"accepted and legally bound themselves" to transport Empire's property. Therefore, Thrasher was

not acting as a "broker," as that term is contemplated by the ICA or the ICC.

B. C OMMON C ARRIER VS

. C ONTRACT C ARRIER

.

If Thrasher was not acting as a "broker" for purposes of the ICA, then it must have been

acting pursuant to its "motor carrier" authority.

1. Carrier Status.

A motor carrier acts either as a "m otor common carrier" or a "m otor contract carrier." 49

U.S.C. § 10102(13). A motor common carrier "hold[s] itself o ut to the general public to provide

m otor vehicle transportati on for compensation over regular o r irregul ar routes, or both." I d. §

10102(14). A motor contract carrier, i nter alia, "provid[es] m otor vehicle transportati on of property

for compensation under continuing agreements with one or more persons." Id. § 10102(15)(B).2. Carrier Rates.

The ICA requires a m

otor common carrier to publish its rate(s) in a tariff filed with the ICC.

Id. § 10762(a)(1). Generally speaking, that filed rate "governs the legal relationship between shipper

and carrier," Maislin Indus., U.S. v. Primary Steel, Inc., 497 U.S. 116, 126, 110 S.Ct. 2759, 2765,

111 L.Ed.2d 94 (1990), such that the filed rate is the "legal rate[ ] ... which must be charged to all

shippers alike." A rizona Grocery Co. v. Atchison, T. & S.F. R.R., 284 U.S. 370, 384, 52 S.Ct. 183,

184, 76 L.Ed. 348 (1932) (emphasis added). However, if Thrasher carried Empire's goods pursuant

to its "m otor contract carrier" authority, then the appropriate rate would be the contract rate agreed

to by Thrasher and Empire, notwithstanding Thrasher's si multaneous status as a "m otor com m on

carrier." A tlantis Express, Inc . v. Standard Transp. Serv., 955 F.2d 529, 533 (8th Cir.1992);

Exemption of Motor Contract Carriers from Tariff Filing Requirements, 133 M.C.C. 150 (1983),

aff'd sub nom. Central & S. Motor Freight Tariff Ass'n v. United States, 757 F.2d 301 (D.C.Cir.),

cert. denied, 474 U.S. 1019, 106 S.Ct. 568, 88 L.Ed.2d 553 (1985).

3. Thrasher's Status.

Current ICC regulations require:

No contract carrier by m otor vehicle, as defined in 49 U .S.C. 10102(15)[,] shal l

transport prop ert y fo r hire in interstate or foreign commerce except under special and

individual contracts or agreements which shall be in writing, shall provide for transportati on

for a particular s hipper or shippers, shall be bilateral and impose specific obligations upon

both carrier and shipper or shippers, shall cover a series of shipments during a stated period

of time in contrast to contracts of carriage governing individual shipments, and copies of

which contracts or agreements shall be preserved by the carriers parties thereto so long as

such contracts or agreements are in force and for at least one year thereafter.

49 C.F.R. § 1053.1 (emphases added). Thrasher argues t hat , since Empire has not presented any

evidence of a written cont ract co mplying with this regulation, Empire cannot legally argue that

Thrasher was acting as a "m otor contract carrier." Furthermore, the second italicized passage negates

Empire's altern at ive argument that each bill of lading comprised a contract for carriage within the

contemplation of the ICA.

Empire refers us to Atlantis Express, Inc. v. Standard Transportation Services, Inc., 955 F.2d

529 (8th Cir.1992), which reversed and remanded a summary judgment in favor of the carrier, entered

by the district court because the shipper did not produce a written contract, and referred the matterto the ICC. The Eighth Circuit apparently based its decision on the ICC's recent statement that "it

is not [ICC's] policy to find a lack of contract c arriage based on simple, technical oversights or

omissions," id. at 533 (quoting ICC , Ex Parte No. MC-198, C ontracts for Transportation of

Property 5 (Feb. 28, 1991)), notwithstanding numerous "past ICC decisions that have consistently

required a written contract" in order to find that contract carriage exited. Id. at 534.

With all due deference to the Eighth Circuit, we do not agree that t he complete lack of a

written contract constitutes a "simple, technical oversight[ ] or omission[ ]." Current ICC regulations

require a written contract, of prescribed form and content, in order to operate as a "m otor contract

carrier." To resist the motion for summary judgment, Empire was required to present evidence that

the carriage at issue was made pursuant to a contract of that form and content. To the contrary

,

Empire (1) produced no such contract a nd (2) stated by sworn response to i nterrogatory that no

known documents were lost or destroyed.

Since Empire failed to present evidence to raise an issue of carriage under a written contract

meeting ICC regulations, we find no error in the district court's conclusion that Thrasher was acting

as an author ized "mo t o r common carrier" when it performed transportation services for Empire

between July 1987 and January 1988. And, since "[i]gnorance or misquotation of rates is not an

excuse for paying or charging either less or more than the rate filed," Maislin, 497 U.S. at 127, 110

S.Ct. at 2766 (quoting Louisville & N. R.R. v. Maxw ell, 237 U.S. 94, 97, 35 S.Ct. 494, 495, 59 L.Ed.

853 (1915)), we find no error in the district court's ruling that Empire is obligated to pay Thrasher

the difference bet ween Thrasher's filed rate(s) applicable to the various shipments which are the

subject of this action and the amount Empire has already paid Thrasher for those shipments.

AFFIRMED.