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National S. & C. Corp. v. Mcnamara M.e.

APRIL 8, 1963.

NATIONAL STARCH AND CHEMICAL CORPORATION, PLAINTIFF-APPELLEE,

v.

MCNAMARA MOTOR EXPRESS, INC., DEFENDANT-APPELLANT.



Appeal from the Municipal Court of Chicago; the Hon. IRVING LANDESMAN, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

Plaintiff brought this action in the Municipal Court of Chicago to recover for damages sustained when a shipment of glue carried by defendant was exposed to freezing temperatures. Defendant appeals from an adverse judgment in the amount of $1,427.38.

The essential facts were stipulated. On January 22, 1959, plaintiff delivered to defendant, a common carrier, a shipment of thirteen drums of liquid glue, weighing almost 7,000 pounds. This amount does not constitute a full truckload. The shipment was delivered to defendant in a heated truck and the attached bill of lading had a stamped notation: "PROTECT AGAINST FREEZING BELOW 40° F." Defendant accepted the shipment and delivered it to Three Rivers, Michigan, where it was consigned to another carrier and delivered to the purchaser in Three Rivers. While in transit, the thirteen drums of glue were subjected to temperatures below forty degrees fahrenheit, but no heat was provided as requested in the bill of lading. This resulted in damage to eight drums.

Defendant's theory is that, (1) its published tariffs, under which plaintiff shipped the glue, do not provide for protective service for less than a full truckload; and (2) under the Interstate Commerce Act, carriers may not provide a service not offered in its published tariffs. Therefore, defendant concludes, it cannot be held liable for the damage sustained by plaintiff.

Since the enactment of the Federal laws regulating carriers engaged in interstate commerce, the Supreme Court has held that carriers are bound by their published rates and services and that they cannot provide special services not contemplated by the published tariffs. This is true even if the carrier has specifically contracted with the shipper to provide the service. Chicago & Alton R.R. Co. v. Kirby, 225 U.S. 155. Thus, the contract between the carrier and shipper is not the bill of lading alone, but is the bill of lading plus the published tariffs. And if there be conflicts between the bill of lading and the published tariffs, the published tariffs control.

The reason behind the rule is that the interstate commerce acts are designed to prevent discrimination among shippers by carriers. Therefore, a contract by the carrier to provide a service not included in the published tariffs is void since, "[t]he paramount requirement that tariff provisions be strictly adhered to, so that shippers may receive equal treatment, presents an insuperable obstacle to recovery." Davis v. Cornwell, 264 U.S. 560, 562.

Since the stipulated facts admit the glue was damaged by defendant's failure to provide heat protection as requested in the bill of lading we pass on to the main question, to wit, do defendant's published tariffs relieve it from liability for failing to provide the protective service specified in the bill of lading.

Certain portions of defendant's published tariffs were presented. The pertinent provisions begin with Rule 23:

ACCEPTANCE SUBJECT TO CAPACITY AND APPROPRIATE TYPE OF VEHICLES

Sec. 2. Rates or ratings provided on freight requiring protection from heat or cold do not obligate the carrier to provide refrigeration, heater service or vehicles specially equipped for such protection, except as otherwise provided in carrier's tariffs. . . .

Supplement No. 54 to Central States Motor Freight Bureau Tariff 205-E — Item 180-0 provides an exception to the above rule:

Traffic requiring heater or refrigerator service will be accepted (except as otherwise provided in Note 1 to 20 below) only when suitable equipment is available. When suitable equipment is available, heater or refrigerator service will be furnished subject to charges provided in Items 110 and 200 of C.S.M.F.B. Tariff No. 500-F, MF-1C.C. No. 874, except as otherwise provided therein.

Whenever heater or refrigerator service is necessary for the proper protection of shipment, cosigner or owner shall notify ...


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