On Petition for Review of an Order of the Interstate Commerce Commission, ICC No. MC-C-30102.
Mansmann, Nygaard and Aldisert, Circuit Judges.
Opinion OF THE COURT Aldisert, Circuit Judge
In the world of commercial shipping freight by common or contract carrier, as regulated by the Interstate Commerce Commission ("I.C.C. or Commission"), the shipper ordinarily declares the freight's value in the bill of lading. Some tariffs filed with the I.C.C. contain a clause providing that if the shipper fails to declare a value, the shipment will be insured at the lowest rate permitted in the tariff. This is commonly known as the "inadvertence clause."
The question for decision in this petition for review of an order of the Commission, by National Small Shipments Traffic Conference, Inc., and the Health and Personal Care Distribution Conference, Inc. ("Petitioners"), is whether the Commission properly decided that tariffs containing inadvertence clauses are not per se illegal. We hold that the Commission did not err, and therefore, deny the petition for review.
Jurisdiction was proper in the Interstate Commerce Commission based on 49 U.S.C. § 17. Jurisdiction on appeal is proper based on 28 U.S.C. §§ 2321(a), 2342(5). The petition was timely filed under Rule 4(a), F.R.App.P.
The petitioners are associations of approximately 300 companies that are regular customers of the general freight trucking industry. They filed a complaint with the Commission seeking to have tariff provisions containing "automatic release" or "inadvertence clauses" declared void.
They claim that provisions, such as those contained in Item 3010-C of Roadway Express Tariff 301-C, I.C.C. RDWY 301-C, are per se violations of sections 11707 and 10730(b) of the Interstate Commerce Act ("Act"). 49 U.S.C. §§ 10730, 11707. The Roadway Express Tariff provides:
a. Commodities as described above, other than new will be accepted for transportation by carrier subject to the following:
(1) Released to value exceeding $.10 per pound . . . 85% of applicable Class Rates.
(2) Released to value exceeding $.10 per pound, but not exceeding $1.00 per pound . . . 95% of applicable Class Rates.
(3) Released to value exceeding $1.00 per pound, but not exceeding $2.50 per pound . . . 97% of applicable Class Rates.
(4) When consignor declares actual value exceeding $2.50 per pound, shipment will be rated at . . . 150% of applicable Class Rates.
2. If consignor fails to declare a released value at the time of shipment, shipment will be subject to the lowest released value herein.
3. Failure of the consignor to declare that commodity as "used" shall not alter the ...