BROWN TRANSPORT CORP. v. ATCON, INC
439 U.S. 1014

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U.S. Supreme Court

BROWN TRANSPORT CORP. v. ATCON, INC , 439 U.S. 1014 (1978)

439 U.S. 1014

BROWN TRANSPORT CORP.
v.
ATCON, INC
No. 77-1581

Supreme Court of the United States

December 4, 1978

On petition for writ of certiorari to the Court of Appeals of Georgia.

The petition for a writ of certiorari is denied.

Mr. Justice WHITE, with whom Mr. Justice BLACKMUN joins, dissenting.

Respectfully, I dissent from the denial of certiorari.

I

Section 223 of the Motor Carrier Act, 49 Stat. 565, 49 U.S.C. 323, prohibits a common carrier by motor vehicle from delivering freight transported in interstate commerce until all tariff rates and charges have been paid, except as permitted by rules and regulations of the Interstate Commerce Commission. The Interstate Commerce Commission, pursuant to 49 U. S.C. 323, has adopted regulations that allow delivery without prior collection of freight charges but limit the credit that may be extended: Freight bills must be presented to the shipper and collected within seven days. 49 CFR 1322 (1977). A "shipper" is defined as the person who undertakes to pay the tariff charges. Ibid. The regulations are silent about what happens if the carrier fails to comply with the time limits established by them. The question raised by this case is whether failure by the carrier to comply with

Page 439 U.S. 1014 , 1015

the time limits prescribed by 49 CFR 1322 (1977) estops the carrier from collecting the freight charges from the shipper.

The Georgia Court of Appeals in this case held that it did, thereby joining the Seventh Circuit, which had reached a similar result in Consolidated Freightways Corp. of Delaware v. Admiral Corp., 442 F.2d 56 ( 1971).

Judge Swygert dissented in the Consolidated Freightways Corp. case, reasoning that "[n]othing in the Motor Carrier Act provides that a carrier's failure to comply with section 323 or the Interstate Commerce Commission's credit regulation should result in the carrier's forfeiting its right to collect freight charges." Id., at 65. At least two jurisdictions share this view. AAA Trucking Corp. v. Spherex, Inc., 110 N. H. 472, 272 A.2d 594 (1970); East Texas Motor Freight Lines v. Franklin County Distilling Co., 184 S.W.2d 505 (Tex.Civ.App.1944).

This conflict among jurisdictions over an issue which "imperatively demand[s] a single uniform rule," Cooley v. Board of Wardens, 12 How. 299, 319 (1852), commands the Court's immediate attention. There is further justification for review in Pittsburgh, C., C. & St. L. R. Co. v. Fink, 250 U.S. 577 (1919). There the Court held that a shipper remains liable for the full legal tariff even though the carrier mistakenly billed him for less, rejecting an argument that estoppel prevented collection on the ground that "[e]stoppel could not become the means of successfully avoiding the requirement of the act as to equal rates, in violation of the provisions of the statute." Id., at 583. The Fink case, although concerning Interstate Commerce Act provisions regulating railroads and not motor carriers, is directly analogous to this case, suggesting that the decision below may be at variance with our prior case law.

Because of the substantiality of the federal issue raised, I would grant certiorari and set this case for argument. [439 U.S. 1014 , 1016]


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