United States Court of Appeals,

Fifth Circuit.

Nos. 92-4160, 92-4201.

In the Matter of STEVE D. THOMPSON TRUCKING, INC., Debtor. (Two Cases).

Billy R. VINING, Trustee, Appellee,

v.

ROCK WOOL MANUFACTURING COMPANY, Appellant.

Billy R. VINING, Trustee, Appellee,

v.

MAKITA, U.S.A., INC., Appellant.

May 7, 1993.

Appeals from the United States District Court for the Western District of Louisiana.

Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

These two cases were styled differently and scheduled for o ral argument consecutively.

Although we did not hear oral argument in Vining v. Rock Wool, No. 92-4160, we have consolidated

these two cases and dispose of them together in the following opinion.

Rock Wool ap peals fro m a summary judgment entered by the district court for freight

undercharges. The district court denied Rock Wool the opportunity to assert the counterclaim of rate

unreasonableness in the plaint iff's undercharge action. However, the court did not make an "express

determination" required under Rule 54(b) for ent ry o f a separate judgment. Further, because the

district court did n o t t ransfer the issue of tariff unreasonableness to the ICC under the primary

jurisdiction doctrine on remand it must either make such an express determination or refer the issue

of reasonableness to the ICC.

Makita als o appeals an adverse summary judgment entered by the district court for freight

undercharges. We find that the summary judgment was entered improperly in two respects. First,

one o f t he four tariffs considered by the trial court appears to be a valid filed discount tariff and1 The classic formulation of the "filed rate doctrine" is found in Louisville & Nashville R.R. Co.

v. Maxw ell, 237 U.S. 94, 35 S.Ct. 494, 59 L.Ed. 853 (1915). In Maxw ell, the court stated:

Under the Interstate Commerce Act, the rate of the carrier duly filed is the

only lawful charge. Deviation from it is not permitted upon any pretext. Shippers

and travelers are charged with notice of it, and they as well as the carrier must

abide by it, unless it is found by the Commission to be unreasonable. Ignorance or

misquotation of rates is not an excuse for paying or charging either less or more

than the rate filed. The rule is undeniably strict and it obviously may work

hardship in some cases, but it embodies the policy which has been adopted by

Congress in the regulation of interstate commerce to prevent unjust discrimination.

Id.

In Maxw ell, the Supreme Court held that a passenger who purchased a train ticket

at a rate misquoted by the ticket agent did not have a defense against imposition of the

higher tariff by the railroad. See id. at 97, 35 S.Ct. at 495; see also Kansas City S. Ry.

Co. v. Carl, 227 U.S. 639, 653, 33 S.Ct. 391, 395, 57 L.Ed. 683 (1913) (even intentional

misstatement of applicable published rate will not bind the carrier or shipper). summary judgment as to any shipments made pursuant to that tariff was improper. Secondly, Makita

was also improperly denied the opportuni ty to assert its counterclaim. Therefore, we REVERSE the

district court's entry of summary judgment as to both Makita and Rock Wool and REMAND both

cases consistent with the following opinion.

I. FACTS

On August 30, 1989, Steven D. Thompson Trucking, Inc. ("Thompson") filed for Chapter

11 bankruptcy. Subsequently, the case was converted to a chapter 7 bankruptcy at which time Billy

R. Vining was appointed trustee of the debtor. Vining, as trustee, filed an adversary proceeding

against the defendants, Rock Wool and Makita, to recover freight undercharges.

a. Rock Wool.

Thompson and Rock Wool had negotiated rates on interstate transportati on that were below

the applicable published tariffs. The trustee conducted an audit of Thompson's books and discovered

undercharges on

previo us freight bills to Rock Wool. The audit revealed that Rock Wool had

received discounts that were not based on vali d filed t ariffs with the Interstate Commerce

Commission ("ICC"). The 35 audited freight bills totalled $7,950.59 in undercharges. The trustee

commenced this action seeking to recover the difference between the contracted rate and the higher

filed tariff rate because under the filed rate doctrine, 1 carriers are not permitted to vary from the tariffrate.

b. Makita.

Makita and Thompson had negotiated rates on interstate transportati on that were below the

applicable published tariffs. The trustee conducted an audit of Thompson's bo oks and discovered

un dercharges on previous freight bills to Makita. The audit revealed that Makita had received

discounts that were not based on valid filed tariffs with the Interstate Commerce Commission

("ICC"). Makita's audited freight bills totalled $17,697.85 in undercharges.

II. PROCEDURE

The bankruptcy court found that Vining was entitled to a judgment for $7,950.59 plus interest

from Rock Wool. The court also found that Vining was entitled to a judgment for $17,697.85 plus

interest from Makita. The court determined that both Rock Wool and Makita had contracted with

Thompson in violation of the filed rate doctrine at an unpublished discount rate. Therefore, the court

assessed undercharges against both of them, which were calculated by deducting the amount they had

actually paid from the higher applicable published tariff.

Rock Wool and Makita contended that: (a) Thompson should be estopped from varying from

its negotiated rate; (b) the tariff rate to be applied was unreasonable; and (c) certain documents were

inadmissible copies of origi nals. Rock Wool alone contended that: (d) it and Thompson were

engaged in contract carriage and, thus, was exempt from the filed tariff rate. Makita alone contended

that: (e) the discount rates that it paid were on file with the ICC.

a. Estoppel.

The bankruptcy court rejected the equitable defenses raised by the defendants out of hand.

The court reasoned that equitable defenses, such as estoppel, w ere no t available in the face of the

inflexible, unyielding filed rate doctrine. See, e.g., Armour Packing Co. v. United States, 209 U.S.

56, 81, 28 S.Ct. 428, 435, 52 L.Ed. 681 (1908) ("If the rates are subject to secret alteration by special

agreement, then the statute will fail of its purpose"); s ee also Illinois Cent. Gulf R.R. Co. v. Golden

Triangle Wholesale Gas Co., 586 F.2d 588, 592 (5th Cir.1978) (rejecting estoppel defense, storage

charges in tariff applied despite repeated assurances by carrier that they would not apply). The court2 The Fifth Circuit overruled Caravan in Advance United Expressw ays, Inc. v. Eastman Kodak

Co., 965 F.2d 1347, 1352 (5th Cir.1992). In Advance United, a panel of our court decided that

Maislin Indus. v. Primary Steel, Inc., 497 U.S. 116, 110 S.Ct. 2759, 111 L.Ed.2d 94 (1990)

superseded Caravan. See Advance United, 965 F.2d at 1352. proceeded to note that even intentional or fraudulent misquotation of the rate will not provide the

defendant with a defense to the filed rate. S ee Paulson v. Greyhound Lines, Inc., 628 F.Supp. 888,

892 (D.Minn.) ( citing Pittsburgh, Cincinnati, Chicago & St. Louis R.R. Co. v. Fink, 250 U.S. 577,

581, 40 S.Ct. 27, 27, 63 L.Ed. 1151 (1919)) (shipper is conclusively presumed to know the terms of

the published tariff), aff'd, 804 F.2d 506 (8th Cir.1986).

b. Tariff Unreasonableness.

Next, Ro ck Wool and Makita both contended that the tariffs used in computing their

undercharges were unreasonable. The court rejected their contention, holding that the only available

avenue to challenge the reasonableness of a carrier's rate is to pay the overcharges and then

commence a reparations action before the ICC. S ee 49 U.S.C. § 11705(b)(3). The court based its

decision in this regard on Matter of Caravan Refrigerat ed Cargo, Inc., 864 F.2d 388, 391 (5th

Cir.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3254, 111 L.Ed.2d 763 (1990). 2 Moreover, the

court stated: "[e]ven if the unreasonableness of the debtor's rates would have been a defense in this

action, defendant completely failed to show that there existed any issue of material fact concerning

the reasonableness or the applicability of the rates in the tariffs utilized in reaching the amount of the

undercharges."

c. Admissibility of Photocopies.

Rock Wool and Makita also contended that certain documents were not originals or were not

authenticated. However, the bankruptcy court rejected this contention because both parties failed

to allege that any of the documents were not accurate copies or that the tariffs were not complete and

accurate. See Fed.R.Evid. 1003.

d. Contract Carriage.

Rock Wool contended before the court below that Thompson was a motor contract carrier3 Motor contract carriers are not subject to the filed tariff structure, while motor common carriers must comply with the filed tariff.

4 Effective June 20, 1992, the I.C.C. repealed 49 C.F.R. § 1053.1 in an effort to reduce the

overly technical requirements needed to attain motor contract carriage status. See Contracts for

Transportation of Property , 57 Fed.Reg. 21616-01 (I.C.C.1992).

5 49 U.S.C. § 10102(15) provides:

"motor contract carrier" means—(A) a person, other than a motor common

carrier, providing motor vehicle transportation of passengers for compensation under

continuing agreements with a person or a limited number of persons—(i) by assigning rather than a m

otor common carrier. 3 As was provided in 49 C.F.R. § 1053.1, 4 the I.C.C. formulated

a multi-part test that needed to be met in order to attain motor contract carrier status:

Contracts or agreements to be in writing

No contract carrier by m otor vehicle, as defined in 49 U.S.C. 1010 2(12) shal l transport

prope rt 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 transportation for a

particular shipper or shippers, shall be bilat eral 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 c o nt ract s of carriage governing individual shipments, and copies of which

contracts or agreements shall be pre served 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 (1991).

The bankruptcy court noted that the transportati on agreement was an ineffectual attempt at

contract carriage that was never intended to be filed with the ICC. The court rejected Rock Wool's

claim that Thompson was a contract carrier because: (i) there was no assignment of vehicles for any

period of time for the exclusive use of the shipper; (ii) there was nothing in the agreement to indicate

that it is designed to meet the distinct needs of the shipper; (iii) the contract was not bilateral because

there was no obligation upon any of the shippers: "Rock Wool was obligated to do virtually nothing

under the agreement;" (iv) there was no specific obligation on any shipper, all the obligations were

on the carrier; and (v) the agreement failed to cover a series of shipments during a stated period of

time.

The co urt fo und that Rock Wool had only met one requirement, that the agreement be in

writing. Therefore, the court held that the transportation agreement failed to meet the requirements

of 49 U.S.C. § 10102(15) 5 and 49 C.F.R. § 1053.1 (1991). Consequently, the court concluded thatmotor vehicles for a continuing period of time for the exclusive use of each such person;

or (ii) designed to meet the distinct needs of each such person; and (B) a person providing

motor vehicle transportation of property for compensation under continuing agreements

with one or more persons—(i) by assigning motor vehicles for a continuing period of time

for the exclusive use of each such person; or (ii) designed to meet the distinct needs of

each such person.

Id.

6 ICC THST 102, Items 4530, 4545, 5050 New (R).

7 See Nonoperating Motor Carriers—Collection of Undercharges, 8 I.C.C.2d 742 (1992). Thompson was not a motor contract carrier and was required to comply with the filed tariffs.

e. Valid Filed Tariff.

Makita argued that it and Thompson contracted at discount rates that were on file with the

ICC. In support of its position, Makita presented four filed tariff sheets. Three of the four tariffs

provide:

The discount named in this Item is applicable only on shipments from shippers which

are participants in the provisions of the Item. Each shipper desiring to participate in the

provisions of the Item must notify in writing by certified mail, the Traffic Manager of Steve

D. Thompson Trucking, Inc.,

... of its desire to participate and must specify this item by

number. The shipper will receive an acknowledgment in writing from the Traffic Manager

of Steve D. Thompson Trucking, Inc. advising it of the date on which its participation is to

be effective. 6

The fourth tariff sheet, ICC THST 100, Item 7510 New (R), effective May 23, contained no

such participation requirement and indicated on its face that it app lied t o Makita shipments. The

court below concluded that Makita failed to prove that it was a participant under a valid filed discount

tariff. Therefore, the court found that the negotiated rates of transportation were in violation of the

filed tariff doctrine.

The bankruptcy court granted summary judgment in favor of Vining as trustee against both

Rock Wool and Makita. Both parties then appealed to the district court. The district court affirmed

the judgment of the bankruptcy court without much analysis. Rock Wool and Makita now appeal.

III. DISCUSSION

There are numerous issues raised on appeal: (a) does new Ex Parte No. MC-208 7 apply, and

if so , then is the rule valid; (b) did the court below properly deny Rock Wool and Makita theopportuni ty to assert rate unreasonableness as a counterclaim; (c) were Rock Wool and Thompson

exempt from the filed tariffs because they were engaged in contract carriage; (d) were Makita and

Thompson participating in valid filed discount tariffs; (e) did the trustee sufficiently prove entitlement

to relief; and (f) was the trustee entitled to pre-judgment interest.

We find that MC-208 does not apply in Rock Wool's case. Further, as to Makita, the court

below must make factual findings before the rule will be implicated. Consequently, we need not

confront the rule's validity at this juncture. The court improperly denied both parties the opportunity

to assert tariff unreasonableness as a countercla im, because it failed to make a Rule 54(b) express

determination. Moreover, inquiries into tariff reasonableness should be made by the ICC under the

doctrine of primary jurisdiction.

The transportati on agreement between Thompson and Rock Wool did not establish motor

contract carriage status and, thus, they were required to comply with the filed tariff. As to Makita,

of the four tariffs, one tariff appears to facially establish a valid participating t ariff. Therefore,

summary judgment as to th o se shipments attributable to the fourth tariff was inappropriate.

Consequently, we express no opinion as to either the sufficiency of proof or pre-judgment interest

issues. Therefore, the judgment of the district court is REVERSED with instructions to either make

a Rule 54(b) "express determination" or transfer the issue of rate reasonableness to the ICC.

a. Applicability of Ex Parte No. MC-208.

The new rule, Ex Parte No. MC-208, was enacted to cure the problems that were caused by

overzealous trustees who imposed severe costs upon shippers. If the rule applies, then "the carrier

or its representative must file its claims with the Commission prior to, or concurrently with, a court

action" so that the ICC can make an init ial determination. S ee 49 C.F.R. § 1321.1 (1992). The ICC

felt that if it could wrest original jurisdiction from the courts to make a threshold determination in

undercharge actions invo lving nonoperating carriers, the n shippers would avoid a lot of needless

litigation.

The rule expressly applies only to carriers who are in bankruptcy, and whose primary business

is the collection of overcharges. Therefore, even carriers who are struggling to survive are not within8 See Ex Parte No. MC-208 at p. 10.

9 See id.

10 See Ex Parte No. MC-208 at p. 9.

11 See id. the ambit of MC-208. However, the rules do apply to carriers who engage in a t oken amount of

shipping just to avoid the application of MC-208. Moreover, the rule applies to those cases that are

currently pending, and cases that arise in the future.

T he rules are expressly addressed to two broad categories of undercharge claims: (i)

( situation # 1 ) rebillings applying a different, higher common carrier tariff rate than the tariff rate

originally billed. For example, disputes over whether the tariff rate that was originally applied should

be replaced wit h an alternative tariff rate; 8 and (ii) ( s ituation # 2 ) where carriers seek to replace

contract carriage terms, that were originally applied to a shipment, with a published tariff rate. For

example, where the parties originally operated under a valid contract carriage permit, but now, after

the fact, the carrier wants to establish that some porti on of its shipments were not made pursuant to

the permit, but rather were common carriage shipments subject to the published tariff rate. 9

Further, the rules do not apply to two types of collection activity: (i) ( s ituation # 3 ) where

the carrier originally charged a non-filed rate and now seeks to bill at the filed ra te: the si tuati on

addressed in Maislin; 10 and (ii) ( situation # 4 ) where the carrier is merely trying to collect unpaid

portions of either a billed tariff or contract rate. 11

i. Rock Wool.

There are four possible scenarios under the current scheme. Two of the possibilities drop

out of our analysis. We are not faced with a situation where Rock Wool paid a published tariff rate

and Thompson is trying to apply a different tariff rate and, t hus, sit uat ion # 1 is not applicable.

Further, th e carrier is not trying to collect unpaid portions of a shipping bill under situation # 4.

Consequently, we are left to determine whether we are in situation # 2 or situation # 3. The ultimate

determination between the two situations controls whether or not MC-208 applies to our situation,

because if we are in situation # 2 then we are within the rule, and if we are in situation # 3 we are not.12 In order to be exempt from the filed tariff and operate as a common contract carrier, a permit

must be obtained from the ICC in advance. See 49 U.S.C. § 10923. Facially, at least, there appears to be some tension or perhaps overlap between situation # 2

and # 3. Situation # 2 applies to a situation where the original bill was based upon contract carriage

terms and now the carrier seeks to recover the higher tariff. Situation # 3 applies to a situation where

the parties shipped at a ne got iat ed rate and now the carrier seeks to recover the higher tariff rate.

The two situations are similar because in each instance the carrier is trying recover the higher tariff

rate; however, they differ in the following regard: in situation # 2 the parties contracted under the

belief that they were operating pursuant to a valid contract carriage permit, while in situation # 3 the

parties knowingly or negligently negotiated an illegal rate without a valid permit. 12

In our situation, Thompso n and Rock Wool are in situation # 3 because they were not

engaged in contract carriage, they m e rely contracted at a rate below the filed tariff. The water is

muddied to some extent by Rock Wool's argument before the bankruptcy court, and before this court,

that it was engaged in contract carriage. However, i n order to attai n contract carri er status

permissio n must be obtained at the outset and, because Thompson did not have a Section 10923

permit we are in situation # 3. As a result, the new rule MC-208 is expressly inapplicable to Rock

Wool's situation.

ii. Makita.

Makita's situation differs somewhat from Rock Wool with respect to those shipments made

pursuant to the fourth tariff. Those shipments made pursuant to the first three tariffs are in situation

# 3 because the parties shipped at a n unfiled disco unt rate. The shipments made pursuant to the

fourth tariff appear to have been made pursuant to a valid filed discount. Therefore, as to those

shipments, situation # 1 would apply. As a result, the rule would expressly apply to those shipments

made under the valid filed tariff. Under the rule, these claims should be transferred to the

Commission.

We are reversing the summary judgment as to those shipments attributable to the fourth tariff.

Thus, the district court must first decide, after hearing the evidence, whether in fact the fourth tariff13 If it turns out that the fourth tariff does not establish a valid filed discount, then Makita will

still be able to assert the defense of reasonableness as to those claims as well. See infra Section b.

14 We note that our brethren in the Third Circuit have invalidated MC-208 on the ground that

its implementation exceeded the ICC's statutory authority. See White v. United States, No. 92-

3528, --- F.2d ---- (3rd Cir. Mar. 19, 1993).

15 Vining makes the same argument that the shipper in White successfully made for the rule's

invalidity. Vining points to 49 U.S.C. § 11706(a), and asserts that original jurisdiction over motor

carrier rates on past transportation is vested exclusively in the courts. The ICC, through MC-208,

has attempted to "bud the jurisdictional line" so to speak. Therefore, the shipper reasons that the

ICC has attempted to do by regulation what Congress forbade them to do statutorily.

While we are mindful that the rule's validity is res nova, we will defer until after the

trial court has waded through these factual questions, until we will rule as to MC-208.

The rule will not apply to Rock Wool in any event. However, it would apply to Makita at

least in part. Consequently, at that stage Makita may again raise this issue without

prejudice.

16 See ICC v. Atlantic Coast Line R. Co., 383 U.S. 576, 579, 86 S.Ct. 1000, 1004, 16 L.Ed.2d

1009 (1966). "[T]he primary jurisdiction doctrine requires initial submission to the [ICC] of

questions that raise "issues of transportation policy which ought to be considered by the

Commission in the interests of a uniform an expert administration of the regulatory scheme laid

down by [the] Act.' " Id. ( quoting United States v. Western Pac. R.R. Co., 352 U.S. 59, 65, 77

S.Ct. 161, 166, 1 L.Ed.2d 126 (1956)). was a valid filed disco unt t ariff. Assuming, that the tariff is valid, 1 3 as it appears to be, then the

district court must still sort out which shipments are attributable to the fourth tariff. Subsequent to

such an allocation, the rule, if valid, 14 would require transfer of those situation # 1 claims to the ICC. 15

b. The Reasonableness Defense.

Rock Wool and Makita argue that the court below should have referred the case to the ICC,

because t heir defense, that the tariffs to be applied are unreasonable, implicates the primary

jurisdiction of the ICC. 16 The doctrine of primary jurisdiction "applies where a claim is originally

cognizable in the courts, and comes into play wh enever enforcement of the claim requires the

resolutions of issues [that]

... have been placed within the special competence of an administrative

body...." S ee, e.g., Western Pac., 352 U.S. at 63-64, 77 S.Ct. at 165 (tariff reasonableness within

exclusive primary jurisdiction of ICC).

The issue as to rate reasonableness has had an interesting and convoluted past. Initially, the

Fifth Circuit stood in the minority with its holding in Matter of Caravan Refrigerated Cargo, Inc.,864 F.2d 388 (5th Cir.1989) (the "Supreme Beef" case), overruled by, Advance United Expressways,

Inc. v. Eastman Kodak Co., 965 F.2d 1347, 1352 (5th Cir.1992). The Supreme Beef case determined

that rate unreasonableness was not a viable defense in an undercharge action. S ee Caravan, 864 F.2d

at 392. The C

aravan holding followed a longstanding system where shippers were forced to pay the

undercharges in district court, and then could pursue a reparations claim with the ICC.

Next, in the chronological progression of the viabilit y of the Supreme Beef case came Maislin.

The Maislin court struck do wn an ICC rule that impermissibly allowed equitable defenses to be

asserted in the face of the filed ta riff doctrine. S ee Maislin, 497 U.S. at 130, 110 S.Ct. at 2768.

Under the rule, the ICC had attempted to allow carriers to be estopped from asserting the filed rate

doctrine in undercharge claims when they knowingly negotiated below the published tariff. S ee id.

The Supreme Court noted that the agency was entitled to deference; however, rejected the ICC rule

because it contravened what case law had held for a century. S ee id. ( citing Chevron U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d

694 (1984)).

In Maislin, the court remanded for a determination as to whether the tariff was reasonable.

Further, Justice Brennan stated in Maislin that "[t]he filed rate is not enforceable if the ICC finds the

rate unreasonable." I

d. 497 U.S. at 128, 110 S.Ct. at 2767. A recent panel of our court considered

Brennan's language as well as the remand, and it concluded "[t]he Supreme Court' s allowance of

unreasonableness as a defense against collection of undercharges trumps our holding to the contrary

in Caravan. " Advance United, 965 F.2d at 1352.

H aving determined that reasonableness is a valid defense to an undercharge claim, the

Advance United panel proceeded to a primary jurisdiction analysis. Just recently, the Supreme Court

in Reiter v. Cooper,

--- U.S.

----, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993), charted a slightly different

approach to undercharge collection actions than the approach outlined in Advance United; however,

the result remains unchanged.

Reiter focused on the true nature of the "reasonableness defense." The court noted that the

reparations action codified at Section 1 1705(b)(3) is a cause of action rather than a defense.17 The Court found that although the shipper had mistakenly pleaded unreasonableness as a

defense, under Fed.R.Civ.P. 8(c) a court may treat the pleading as if there had been a proper

designation. Reiter, --- U.S. at ----, 113 S.Ct. at 1217.

18 The Advance United

court noted:

Because the carrier's assets, along with the judgment collected in this case, will

have been distributed to the creditors before a subsequent action can be filed, [the shipper]

is unlikely ever to recover wrongfully paid monies.

Advance United, 965 F.2d at 1352. Consequently, rate unreasonableness is actually a coun terclaim not a defense. 1 7 The court stated

"[o]ne major consequence does attach to the fact that an unreasonable-rate claim is technically a

counterclaim rather than a defense: A defense cannot possibly be adjudicated separately from the

plaint iff's claim to which it applies; a counterclaim can be." R eiter,

--- U.S. at ----, 113 S.Ct. at 1218.

In retrospect, the C

aravan approach, which was the practice of entering judgmen t on the

undercharge claims and deferring unreasonableness contentions until t he reparations action before

the ICC, was effectively the entry of a separate judgment. In order to enter a separate judgment on

the carrier's undercharge claim without providing the shipper the opportuni ty to assert

unreasonableness, the court must make "an express determination that there is no just reason to delay

... entry of judgment." Fed.R.Civ.P. 54(b).

Surely, in the ordinary case, where the carrier is solvent the equities would garner in favor

of a separate judgment. The court in that instance could make an express determination under Rule

54(b) that judgment on the undercharge claim would not harm t he shipper because the right to a

reparations action before the ICC would be left unimpaired. However, where as here, when the

carrier is insolvent the equities normally mandate a different result.

The Caravan approach worked fine outside of bankruptcy where all of the shipper's rights

were preserved by the reparations action. However, as Rock Wool argues, and as the ICC recognizes

in Ex Parte No. MC-208, this right to a reparations acti o n is largely useless in the bankruptcy

context. 18 The uselessness emanates from the reality that money paid to a bankrupt entity will not

be returned—once paid it is irretrievably lost. Therefore, the entitlement to a reparations claim is at

best illusory. In order to preserve the shipper's right to assert reasonableness as a partial or total bar19 The Supreme Court in Reiter alluded to two possible remedies to the shipper's problem in

this regard: (i) the district court may refer the issue of reasonableness to the ICC and stay its

proceedings in the interim; or (ii) it could enter a separate judgment and require the shipper to

deposit the amount of the judgment with the court pending the outcome of the reparations action

before the ICC. See Reiter, --- U.S. at ----, 113 S.Ct. at 1221.

20 See Western Pacific, 352 U.S. at 68-69, 77 S.Ct. at 167. "[T]he mere fact that the issue is

phrased ... as a matter of reasonableness should not be determinative on the jurisdictional issue.

To hold otherwise would make the doctrine of primary jurisdiction an abstraction to be called into

operation at the whim of the pleader." Id. to recovery, in bankruptcy the shipper must be able to assert its counterclaim before it is required to

pay. 19

The Advance United court concluded that on remand the issue of reasonableness was certainly

within the ken of the ICC and, thus, the Commission possessed primary jurisdiction. S ee id. at 1353.

However, the Advance United panel also seemed to note that if the district court determines that it

can resolve the issues of reasonableness without the need for ICC expertise, then it is permitted to

decide the issue. See id.

Therefore, when analyzing the bankruptcy court's order, the court incorrectly stated that "The

issue of rate reasonableness does not constitute a defense to an action to collect freight charges. The

reparations remedy set by statut e pro vides the sole and exclusive remedy for claimed excessive

charges." This statement is incorrect in light of Reiter.

Ho wever, the bankruptcy court buttressed its rejection of the reasonableness defense by

noting: "Even if the unreasonableness of the debtor's rates would have been a defense in this action,

defendant completely failed to show that there existed any issue of material fact concerning the

r easonableness or the applicability of the rates in the tariffs utilized in reaching the amount of the

undercharges." The court reasoned that litigants need to provide more t han a mere pleading of

unreasonableness in order to invoke the primary jurisdiction of the ICC. 20 The litigants do argue in

their brief that the tariff that was applied was beyond the expectation of both parties. It is difficult

to imagine what factual issues one c o uld raise by alleging unreasonableness, without having some

familiarity with the tariff structure.

In Great N. Ry. Co. v. Merchants Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 94321 There is no statutory procedure by which a court can require a determination from the ICC.

The term "referral" has been used to label the process that has developed, where the court stays

its proceedings in order to provide the shipper with a reasonable opportunity to file an

administrative complaint before the ICC. See Reiter, --- U.S. at ---- n. 3, 113 S.Ct. at 1220 n. 3.

22 The ICC has set the system up in such a way that motor contract carriers are not subject to

the filed tariff structure while motor common carriers must comply with the filed tariff. (1922), Justice Brandeis stated:

Whenever a rate

... is attacked as unreasonable

... there must be preliminary resort to the

[Interstate Commerce] Commission.... [O]rdinarily the determining factor [in deciding the

application of primary jurisdiction] is

... the character of the controverted question and the

nature of the enquiry necessary for its resolution.... Preliminary resort to the Commission ...

is required because the enquiry is one of fact and of discretion in technical matters ; and

uniformity can be secured only if its determination is left to the Commission. Moreover, that

det ermination is reached ordinarily upon voluminous and conflicting evidence, for t he

adequate appreciation of which acquaintance with many intricate fa cts of transportati on i s indispensable; and such acquaintance is commonly to be found only in a body of experts.

Id. at 291, 42 S.Ct. at 479.

While we are mindful, that there may be instan c es where the ICC's expertise may not be

needed, it appears that rate reasonableness is one area where uniformity and agency knowledge are

essential to a proper result. Therefore, if the court determines that the equities do not favor entering

a separate judgment, then the court should refer 21 the issue of rate reasonableness to the ICC. See,

e.g., Maislin, 497 U.S. at 119, 110 S.Ct. at 2762 ("ICC has primary responsibility for determining

whether a rate or practice is reasonable") ( citing Texas & Pac. R.R. Co. v. Abilene Cotton Oil Co.,

204 U.S. 426, 440-42, 27 S.Ct. 350, 355-56, 51 L.Ed. 553 (1907)).

c. Motor Contract Carriage.

Rock Wool contended before the courts below that Thompson was a m otor contract carrier

rather than a m

otor common carrier. 22 The bankruptcy court performed a forceful analysis of the then

applicable statutory guidelines for contract carrier status, and concluded that Thompson and Rock

Wool were not engaged in contract carriage. We agree that under 49 C.F.R. § 1053.1, there was no

contract carriage. Further, we buttress our position by noting t hat a permit for contract carriage

shou ld have been obtained prior to any purported contract carriage shipments. S ee 49 U.S.C. §

10923.

Without a valid permit at the outset, the shipper cannot argue that it had shipped its goods23 ICC THST 102, Items 4530, 4545, 5050 New (R).

free of the published ta riff because it had met all of the qualifications needed for contract carriage

status. Simply, the shipper cannot argue after the fact t hat it was engaged in contract carriage.

Therefore, because Rock Wool did not ship its goods pursuant to a valid contract carriage permit,

it was subject to the applicable filed tariff.

d. The Applicable Tariffs.

Makita argues that it and Thompson contracted at discount rates that were on file with the

ICC. In support of its position, Makita presented four filed tariff sheets. Three of the four tariffs

provide:

The discount named in this Item is applicabl e o nly on shipments from shippers which are

participants in the provisions of the Item. Each shipper desiring to participate in the

provisions of the Item must notify in writing by certified mail, the Traffic Manager of Steve

D. Thompson Trucking, Inc.,

... of its desire to participate and must specify this item by

number. The shipper will receive an acknowledgment in writing from the Traffic Manager

of Steve D. Thompson Trucking, Inc. advising it of the date on which its participation is to

be effective. 23

The district court found, and we agree, that Makita failed to produce the proper notification

required under these three tariffs. The fourth tari ff sheet, ICC THST 100, Item 7510 New (R),

effective May 23, 1987, contains no such participation requirement, but rather indicates on its face

that it applies to Makita shipments. At least as to those shipments attributable to the fourth tariff,

Thompson has raised a genuine factual dispute. Facially, it appears that t ho se shipments made

pursuant to the fourth tariff were properly billed at a discount rate.

Therefore, the filed rate doctrine applies to all shipments attributable to the first three tariffs;

however, the fourth tariff appears to exempt Makita from the filed tariff. Consequently, the summary

judgment was improper as to any shipments made pursuant to the fourth tariff.

CONCLUSION

The new ICC rule MC-208 does not apply to Rock Wool's situation. In Makita's case, the

rule will apply to those shipments attributable to the fourth tariff provided th at it was an effective

discou nt tariff; however, we need not decide whether the rule is valid at this stage until after the

district court makes this factual determination.Based on the law as it stands after R eiter, Rock Wool and Makita may assert rate

unreasonableness as a total or partial bar to an undercharge action unless the district court makes a

Rule 54(b) express determination. Therefore, on remand the court must either make an express

determination or refer rate unreasonableness to the ICC under the primary jurisdiction doctrine.

Thompson and Rock Wool were not engaged in contract carriage and , thus, they were

required to comply with the applicable published tariff. As to Makita, the summary judgment is

reversed as to those shipments attributable to the fourth ta riff because on its face it appears to

establish a valid filed discount. We need not reach the sufficiency of the evidence and interest issues

because we find that summary judgment was improper as to both Rock Wool and Makita. Therefore,

the judgment of the district court is REVERSED and REMANDED.