The opinion of the court was delivered by: Will, District Judge.
The trustees of the bankrupt Penn Central Transportation
Company (hereinafter "Penn Central") bring this action seeking to
recover charges for alleged interior switching or intraplant
switching performed by the railroad at defendant Prolerized's
request at Prolerized's plant in Chicago between February 7,
1970, and August 18, 1970. Penn Central, being a common carrier
railroad subject to the provisions of the Interstate Commerce
Act, 49 U.S.C. § 1 et seq., seeks to recover on the basis of its
Freight Tariff 40105, issued December 4, 1968, effective January
11, 1969, or, in the alternative, on the theory of quantum
meruit or implied contract. Defendant has moved for summary
judgment contending that Penn Central cannot recover on its
tariff since it has not strictly complied with that tariff and no
railroad can recover for services unless the services are
performed pursuant to its tariff. Summary judgment will be
granted for the defendant.
As a common carrier railroad subject to the provisions of the
Interstate Commerce Act, 49 U.S.C. § 1 et seq., Penn Central must
publish its schedule of rates, fares and charges pursuant to
49 U.S.C. § 6. Item 390 of Penn Central's Freight Tariff 40105,
issued December 4, 1968, effective January 11, 1969, is the
tariff under which recovery is sought in this action. It
When a shipper or receiver desires any movement made
from one location to another location of an industry,
such movement will be made for $18.26 per loaded car,
regardless of weight, including the handling of the
empty, upon written request on the nearest Agent of
the Company. When a shipper or receiver desires any
movement made of an empty car from one location to
another location of an industry, such movement will
be made for $18.26 per movement, upon written
request on the nearest Agent of
This Company. . . . (Emphasis supplied.)
As the above italicizing indicates, the tariff requires written
request by the shipper for services such as those rendered in
this case. It has been stipulated by the parties that defendant
Prolerized never made any written request for any of the
intraplant switching here involved nor did Penn Central ever
request such writings. The first issue then for the court to
determine is whether recovery for services contemplated by the
tariff can be had under the tariff when the requirement for
written request for those services by the shipper has not been
The law is clear that rigid adherence to the tariff is required
in order for a carrier to recover under its provisions. Davis v.
Henderson, 266 U.S. 92, 45 S.Ct. 24, 69 L.Ed. 182 (1924); Empire
Box Corp. v. Delaware, L. & W.R. Co., 171 F.2d 389 (2d Cir.
1948); Eastern Wine Corp. v. New York Central R. Co., 355 F.2d 30
(2d Cir. 1966); North Coast Mfg. Corp. v. Union Pacific R. Co.,
185 F. Supp. 287 (D.Or. 1960); Illinois Central R. Co. v.
Ready-Mix Concrete, Inc., 323 F. Supp. 609 (E.D.La. 1971). See
also, Campbell Construction Co. v. L.C. & S.E. Ry. Co., 95
I.C.C. 603; Western Bridge & Construction Co. v. St. L.-S.F. Ry.
Co., 118 I.C.C. 607; Colonial Lbr. Co. v. Reading Co., 291 I.C.C.
523; Chagen v. Alabama Southern R. Co., 298 I.C.C. 256.
Plaintiffs argue that all the above cited cases are factually
distinguishable from the instant case, and that despite bald
statements in these cases to the effect that rigid adherence to
the letter of the tariff is required for either the carrier or
the shipper to recover, each case can be limited to its facts.
Most of the cases cited above involve demurrage charges — i.e.,
charges for the detention of a railroad car beyond a stipulated
date. In all demurrage cases, written notice from the carrier to
the shipper to the effect that cars are being held by the shipper
and that charges will accrue after a specified date is required.
Plaintiffs contend that this written notice is a condition
precedent requiring an affirmative act by the carrier before it
can recover. In the instant case, they argue that the affirmative
act is required not of the carrier but of the shipper, and
therefore the shipper may waive this requirement without
depriving the carrier of recovery for services actually rendered
which, they allege, were orally requested by the defendant.
While it is true that this factual distinction does exist
between the cited cases and the instant case, we find that it
does not outweigh the statements in the cases requiring rigid
adherence to the tariff and the logic underlying these
statements. The Interstate Commerce Act, 49 U.S.C. § 1, et seq.,
was passed in 1887 in response to general public indignation and
disgust over the railroads' abuse of their monopoly position and
in response to the invalidation of state attempts to regulate the
railroads by the Supreme Court in Wabash, St. L. & P.R. v.
Illinois, 118 U.S. 557, 7 S.Ct. 4, 30 L.Ed. 244 (1886). See
generally, Huntington, "The Marasmus of the ICC," 61 Yale L.J.
467 (1952). The intent of Congress in requiring railroads to
publish tariffs and to charge only according to their provisions
is clear. Abuses in charges and billing could only be remedied if
the railroads were required to adhere to pre-existing schedules.
Equally explicit in the intent of Congress is a desire to seek
uniformity of treatment to all shippers. See, Kansas City
Southern R. Co. v. C.H. Albers Commission Co., 223 U.S. 573, 32
S.Ct. 316, 56 L.Ed. 556 (1912); United States v. Champlin
Refining Co., 341 U.S. 290, 71 S.Ct. 715, 95 L.Ed. 949 (1951).
Plaintiffs' alternative ground for relief in the complaint is
upon the theory of quantum meruit or implied contract. For the
reasons stated above in the discussion of the purposes behind the
Interstate Commerce Act, we hold that a railroad may not recover
for services rendered except on the basis of its published
In its memorandum in opposition to defendant's motion for
summary judgment, plaintiff has suggested with respect to this
quantum meruit argument that the Court remand the controversy
to the Interstate Commerce Commission to determine a reasonable
charge for the services that the railroad has performed in this
case. This would be a wholly fruitless exercise for two reasons.
First, a railroad subject to the provisions of the Interstate
Commerce Act may not recover for services except as provided for
in their tariff. Second, the ICC has approved rates for the very
services which have been performed in the instant case, i.e., the
rates published in the tariff. Therefore, plaintiffs' request to
remand the case to the ICC will be denied.
The cases cited by the plaintiff to support the proposition
that railroads can recover reasonable charges for services
performed which are within the scope of a valid tariff are
inapposite. All these cases are administrative decisions, and all
involved situations where there was no applicable tariff
provision. See, Memphis Freight Bureau v. K.C.S. Ry. Co., 17
I.C.C. 90; Hackney Bros. Body Co. v. N.Y. Central R. Co., 266
I.C.C. 795; Carnation Co. v. Southern P. Co., 269 I.C.C. 470;
Moffatt & Edwards v. St. L.S.W. Ry. Co. of Texas, 270 I.C.C. 220;
Natl. Trucking & Storage Co., Inc. v. Penna. R. Co., 294 I.C.C.
605. For this reason, we find them to be inapplicable and
unpersuasive in the instant case.
In summary, since a railroad subject to the terms of the
Interstate Commerce Act cannot recover for services rendered
where a valid tariff is in force except under the terms of that
tariff, and since such a railroad may not recover under its
tariff unless its terms have been rigidly adhered to, and since
the plaintiff has not provided these services with a strict
adherence to ...