Matthews v. Aero Mayflower Transit Co.

37 N.C. App. 59 | N.C. Ct. App. | 1978

VAUGHN, Judge.

We conclude that there were no genuine issues as to any material fact and that defendants were entitled to judgment as a matter of law. We, therefore, affirm the entry of summary judgment.

The affidavit of J. R. Bruckman, manager of the Credit and Collection Department of Aero Mayflower Transit Co., states that “the plaintiffs’ goods were shipped in interstate commerce under the provisions of all applicable rules and regulations of the Interstate Commerce Act . . . .” Plaintiffs offered no evidence that this was not so. Indeed, they probably could not do so. The goods were shipped from Washington to North Carolina. U.S.C.A. 49 § 302(a) provides that Part II of the Interstate Commerce Act shall “apply to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce.” The weight of plaintiffs’ goods and the distance shipped were established by affidavit of the president of Security Storage, Inc. The defendants also offered into evidence copies of Tariff No. 126-A, MF — I.C.C. No. 142, certified by the Secretary of the Interstate Commerce Commission as having full force and effect in 1969 when plaintiffs shipped their goods. By this tariff, defendants were obligated to charge the full amount invoiced by them for cross-country transportation, notwithstanding the original mistake.

By U.S.C.A. 49 § 323 the carrier is prohibited from relinquishing possession of any freight until all tariff charges have been paid. By U.S.C.A. 49 § 317(b), the carrier is prohibited from charging less for any service than the charge specified by the tariffs in effect. Together these provisions prevent any equitable considerations from justifying a retention by the shipper of any part of a lawful tariff charge. “In short, application of tariffs as published is required regardless of the intention of the parties and irrespective of the equities existing between carriers and shippers.” National Van Lines, Inc. v. United States, 355 F. 2d 326, 331 (7th Cir. 1966); see Louisville & N.R.R. v. Maxwell, 237 U.S. 94, 35 S.Ct. 494, 59 L.Ed. 853 (1915).

From the above authority, it is clear that the defendants are governed by I.C.C. regulations and are required to collect the full amount owed them under the tariffs.

Affirmed.

Judges Morris and Martin concur.