Before DUFFY and SCHNACKENBERG, Circuit Judges, and MERCER, District Judge.
MERCER, D. J.: The only issue before us on this appeal by plaintiff is the question whether the court below properly construed the provisions of the Central States Motor Freight Bureau Tariff No. 280-H, I.C.C. No. MF-ICC 944, as it applies to the agreed facts involved in this litigation.
Plaintiff is a common carrier of freight by motor vehicle operating in commerce pursuant to authority granted by the Interstate Commerce Commission. As such common carrier, plaintiff is required to publish and file with the I.C.C. tariffs governing its rates for the transportation of commodities in commerce. 49 U.S.C. § 317(a).
Defendant is, inter alia, a steel wire manufacturer, with its principal place of business in Sterling, Illinois.During 1962, at defendant's instance and request, plaintiff transported a number of shipments of steel wire from defendant's plant in Sterling to Battle Creek and Albion, Michigan. Each such shipment was of more than 30,000 pounds weight.
It is not disputed that each such shipment was governed by Tariff No. MF-ICC 944. Section 2 thereof fixes specific commodity rates of sixty-two cents and sixty-five cents, respectively, per hundredweight for shipments from Sterling, Illinois, to Battle Creek and Albion, Michigan, on shipments of a minimum weight of 20,000 pounds. Section 3 thereof provides a rate of fifty cents per hundredweight for shipments from Sterling to Detroit, Michigan, on shipments of a minimum weight of 30,000 pounds.
Since Detroit is more distant from Sterling than either Battle Creek or Albion, and since all shipments involved in litigation were more than 30,000 pounds, defendant took the position that the Intermediate Points Rule of the ICC as contained in the tariff should apply. The Intermediate Points Rule, in summary, provides that whenever a specific commodity rate is not provided by a tariff from a particular point of origination to a particular point of destination, the rate provided by the tariff for the next most distant point of destination over the same route shall be applied as the rate governing any shipment to such intermediate point.*fn1 Accordingly, defendant contended that it was entitled to apply the published rate between Sterling and Detroit, in lieu of the published rates between Sterling and Battle Creek and Albion, to the shipments involved in this suit. Upon the basis of that position, defendant moved for summary judgment in its favor. In the court below it conceded that if the Intermediate Points Rule was applied plaintiff was entitled to judgment in the amount of $2,632.20, but that if the Intermediate Points Rule did not apply plaintiff was entitled to judgment in the amount of $6,587.57.
The trial court, applying a rule of reason and stating that it was unreasonable "to penalize" a shipper by the construction placed on a tariff, adopted defendant's theory of the case, granted its motion for summary judgment and entered judgment for plaintiff in the amount of $2,632.20.
It is clear that the court below erred in that respect. The Intermediate Points Rule is unambiguous.It can be applied only in the absence of a specific commodity rate stated in the applicable tariff between given origination and destination points. Sun Oil Co. v. Central R. Co ., 301 I.C.C. 558, 560; Firestone Tire & Rubber Co. v. Southern Pacific Co ., 243 I.C.C. 157, 159; Iron and Steel Articles, Minimum Charges to Dover, Ohio, 21 M.C.C. 35, 36. The tariff here in issue states specific rates from Sterling, Illinois, to Battle Creek and Albion, Michigan, which apply to shipments of 20,000 pounds or more. Its stated minimum of 20,000 pounds clearly contemplates application of such rates to all shipments in excess of that minimum weight.*fn2 Thus, no construction of the tariff was necessary, and it was error to apply the Intermediate Rule thereto.
We think the court below failed to recognize a vital distinction between rate cases arising under part II of the Act, related to motor carriers, 49 U.S.C. 301, et seq ., and parts I and III of the Act, relating, respectively, to rail and water carriers. 49 U.S.C. § 1, et seq ., 901, et seq . Under the latter, reasonableness of a published rate may be an issue in a suit by or against a shipper, whereas under the former, reasonableness cannot be an issue. T.I.M.E., Inc. v. United States, 359 U.S. 464; Lynchburg Traffic Bureau v. Smith's Transfer Corp ., 4 Cir., 309 F.2d 678. Thus, there was in this case no authority to look beyond the published tariff to determine whether plaintiff's charges were or were not reasonable.
The judgment is reversed and the cause is remanded to the court below with directions to enter judgment for plaintiff in the amount of $6,541.19, that being the amount ...