United States Court of Appeals, Third Circuit
United States Court of Appeals, Third Circuit
United States Court of Appeals, Third Circuit
2d 443
58 USLW 2238
Daniel J. Sweeney (argued) and John M. Cutler, Jr., Washington, D.C. for
petitioners.
Virginia Strasser (argued), I.C.C., Robert Burk, Craig M. Keats, Office of
Gen. Counsel, John P. Fonte, John J. Powers, III, and James F. Rill, U.S.
Dept. of Justice, Appellate Section, Antitrust Div., Washington, D.C., for
respondents.
Kenneth E. Siegel (argued), Robert S. Digges, Jr., Alexandria, Va., and
William W. Pugh, Gen. Counsel, Nat. Motor Freight Traffic Assn., Inc.,
Alexandria, Va., for intervenors/respondents.
Before MANSMANN, NYGAARD and ALDISERT, Circuit Judges.
I.
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They claim that provisions, such as those contained in Item 3010-C of Roadway
Express Tariff 301-C, I.C.C. RDWY 301-C, are per se violations of sections
11707 and 10730(b) of the Interstate Commerce Act ("Act"). 49 U.S.C. Secs.
10730, 11707. The Roadway Express Tariff provides:
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II.
15
Like most administrative appeals, this case turns on the standard of review. The
Supreme Court in Chevron U.S.A., Inc. v. N.R.D.C., Inc., 467 U.S. 837, 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984) held:
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precise question at issue, the court does not simply impose its own construction
on the statute, as would be necessary in the absence of administrative
interpretation. Rather, ... the question for the court is whether the agency's
answer is based on a permissible construction of the statute.
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Before us petitioners reassert the argument they made before the Commission
that inadvertence clauses are per se illegal based on sections 10730(b) and
11707 of the Act. 49 U.S.C. Secs. 10730(b), 11707. They argue that the
language and legislative intent of Congress in enacting these sections is clear,
and that therefore, this court is constrained to follow that clear intention and
declare tariffs containing inadvertence clauses void.
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20
21
(b)(1)
Subject to the provisions of paragraph (2) of this subsection, a motor common
carrier providing transportation ... [may] establish rates for the transportation of
property (other than household goods) under which the liability of the carrier ... is
limited to a value established by written declaration of the shipper or by written
agreement between the carrier ... and shipper if that value would be reasonable under
the circumstances surrounding the transportation.
22 Before a carrier ... may establish a rate for any service under paragraph (1) of
(2)
this subsection, the Commission may require such carrier ... to have in effect and
keep in effect, during any period such rate is in effect under such paragraph, a rate
for such service which does not limit the liability of the carrier....
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(a)(1)
A common carrier providing transportation or service ... shall issue a receipt
or bill of lading for the property it receives for transportation under this subtitle ...
[and is] liable to the person entitled to recover under the receipt or bill of lading ...
[for] the actual loss or injury to the property....
(c)(1) A common carrier may not limit or be exempt from liability imposed under
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subsection (a) of this section except as provided in this subsection. A limitation of
liability or of the amount of recovery or representation or agreement in a receipt, bill
of lading, contract, rule, or tariff filed with the Commission in violation of this
section is void.
***
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27 A common carrier may limit its liability for loss or injury of property transported
(4)
under section 10730 of this title.
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III.
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A.
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31
Alternatively they contend that when read together, sections 10730 and 11707
require that any release of liability be "established by written declaration of the
shipper, or by a written agreement," and the publication of an inadvertence
clause in a tariff does not satisfy the requirements of a written agreement. The
I.C.C. determined, and we agree, that a bill of lading, taken together with the
filed tariff containing an inadvertence clause, can constitute a written
agreement between the carrier and shipper. I.C.C. Op. at 3. This determination
was premised on the long-standing principle that a shipper is deemed to be
aware of, and agrees to be bound by, the tariff under which it is shipping, and
that before carriage can begin, the parties enter into a contract of carriage
embodied in a bill of lading. Neither the language, nor legislative history of
sections 10730 or 11707 prohibit such an interpretation.
B.
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Petitioners then argue that the legislative history of the statute clearly prohibits
inadvertence clauses. Petitioners begin by outlining the development of the
common law rule of full liability for carriers. See Coggs v. Bernard, 2
Ld.Raym. 909, 92 Eng.Rep. 107 (1703). This rule was codified in 1906 in the
Carmack Amendment (currently codified at 49 U.S.C. Sec. 11707) which
prohibited carriers from limiting their liability in any way. But the courts
loosened this requirement and allowed shippers to declare the value of their
goods and be charged lesser rates for goods of lesser value. After this occurred,
carriers began charging exorbitant rates for shipments insured at full value. See
Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S.Ct. 148, 153, 57
L.Ed. 314 (1913). This prompted swift Congressional reaction. Congress
enacted the Cummings Amendment (now codified primarily at 49 U.S.C. Sec.
10730), which allowed carriers to limit their liability, but gave the I.C.C. the
power to approve rates. By 1980, the requirement of I.C.C. approval of tariff
rates was removed by the Motor Carrier Act. Petitioners advance the theory that
the 1980 Motor Carrier Act in effect rolled back the law to Adams Express.
From these premises they argue that limitation of liability by the carrier can be
brought about only when the shipper declares the value of the goods. We reject
this theory for several reasons. First, there is no indication that at the time of
Adams Express, our courts were ever introduced to, or discussed, inadvertence
clauses. Second, there is nothing in the language or legislative history of the
1980 Motor Carrier Act which indicates that Congress even thought about the
validity of automatic release clauses. See generally, H.R.Rep. No. 1069, 96th
Cong., 1st Sess. 1-103, reprinted in 1980 U.S.Code Cong. & Admin.News
2283-2338. Third, we are satisfied that Congress intended to authorize the
Commission to approve released rate provisions, and left the question of
inadvertence clauses as one properly for the Commission to resolve in filling in
the gaps implicitly or expressly left by Congress. See Drug & Toilet
Preparation Traffic Conf., Inc. v. United States, 797 F.2d 1054, 1058
(D.C.Cir.1986).
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Indeed, Congress has delegated to the I.C.C. broad discretion in dealing with
tariffs, see 49 U.S.C. Sec. 10762 (I.C.C. prescribes requirements for tariffs),
and value limitations, 49 U.S.C. Sec. 10730(b) (requires that limited value be
reasonable, a determination that is left to the I.C.C. under section 10701). The
Administrative Procedure Act provides that when an agency is given discretion
We conclude that the I.C.C. did not err in concluding that inadvertence clauses
in tariff provisions are not per se illegal. The Commission applied basic
contract law and determined that the presence of such a clause in a published
tariff, taken together with a bill of lading, may constitute a written agreement.
A.
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B.
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Petitioners ask that we reject the I.C.C. decision in this case and all other
authority condoning inadvertence clauses. They assert that this line of cases
was incorrectly decided and should be abandoned. Petitioners advocate
adopting the teachings of General Electric Co. v. McLean Trucking Co., C.A.
No. 85-0417-A (E.C.Va.1985) (unpublished) (Brief for National Motor Freight
Traffic Assoc., appendix G). We reject petitioners' argument. We note that the
General Electric case has not been followed by most courts, see e.g.,
Mechanical Technology, Inc., 776 F.2d 1085; W.C. Smith, 596 F.Supp. 515.
More importantly, this court does not meet this issue ab initio. We lack the
authority to make a de novo review of the issues presented. The Commission
rejected the General Electric case, and the only question before us is whether
the I.C.C.'s rejection was permissible. We hold that it was.
V.
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[r]egulatory
agencies do not establish rules of conduct to last forever; they are
supposed, within limits of the law and of fair and prudent administration, to adapt
their rules and practices to the Nation's needs in a volatile, changing economy. They
are neither supposed to regulate the present and the future within the inflexible limits
of yesterday.
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American Trucking Assocs. v. Atchison, Topeka and Santa Fe Ry. Co., 387
U.S. 397, 416, 87 S.Ct. 1608, 1618, 18 L.Ed.2d 847 (1967). That the I.C.C.
may have changed its position on this issue does not constitute reversible error
under our limited standard of review.
VI.
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