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LIFSCHULTZ FAST FREIGHT v. NATIONAL MFG. CO.

October 16, 1992

LIFSCHULTZ FAST FREIGHT, INC., Plaintiff,
v.
NATIONAL MANUFACTURING COMPANY, Defendant.



The opinion of the court was delivered by: PHILIP G. REINHARD

ORDER

 INTRODUCTION

 FACTS

 Plaintiff is a common motor carrier operating in interstate commerce. Plaintiff published a 47% discount in a lawfully filed tariff on behalf of defendant, a shipper. Plaintiff now seeks to collect $ 9,401.84 in freight undercharges for 177 shipments that plaintiff transported for defendant in 1988 and 1989. Plaintiff asserts that defendant is liable for the full filed rate because defendant did not pay the original freight charges for these 177 shipments within the credit period provided in plaintiff's rules tariff.

 CONTENTIONS

 A. Plaintiff has not Complied with the ICC's Regulations Governing the Extension of Credit.

 The ICC's credit regulations provisions provide for a loss-of-discount remedy to a carrier as a liquidated damage to compensate the carrier for collection expenses. However, in order for this remedy to apply, the carrier must comply with several ICC regulations. Included among these requirements are that a shipper must have notice that failure to pay within the time period will result in a loss of discount; that the carrier must issue the shipper a revised freight bill with notice of the higher charges sought; and, the freight bills can not be on one aggregate "balance due" sheet -- rather, the freight bills rust be independent and separate. See 49 C.F.R. § 1320.3(c); §§ 1320.2(g)(2)(iii), (vi).

 Defendant asserts that to recover loss-of-discount damages, plaintiff must meet certain evidentiary requirements; namely, plaintiff must prove when the original freight bills were sent to defendant, when defendant received the original freight bills, and when plaintiff first received payment from defendant for the original discounted freight bills.

 Defendant essentially argues that plaintiff's claim constitutes an "unreasonable" practice in tariff collection and therefore, should be referred to the ICC for determination.

 B. The Full Filed Rate Requested by Plaintiff is Unreasonable.

 Defendant's second assertion is, that if plaintiff should prevail on the above issues and be awarded the full tariff rate, that rate itself is unreasonably high. Defendant contends that the ICC has primary jurisdiction to determine whether any filed rate is reasonable.

 To justify a referral on an unreasonableness claim, however, a party must meet a threshold showing of unreasonableness. Atlantis Express, Inc., v. Standard Trans. Serv., Inc., 955 F.2d 529, 537-38 (8th Cir. 1992) (holding that the shipper's comparison of rates between the carrier and other carriers, showing that the carrier's filed rates were higher than the market rate, was sufficient to justify referring the matter to the ICC.)

 In the present case, defendant has submitted the affidavit of Michael Bange, a transportation industry expert. Bange avers that the "corrected charges" plaintiff now seeks are 87% higher than, "or nearly double", the charges originally billed by plaintiff. Bange further states that the 47% discount given to defendant was a typical practice among ...


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