OCTOBER TERM, 1992
Syllabus
REITER ET AL.
v. COOPER, TRUSTEE FOR CAROLINA MOTOR
EXPRESS, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 91-1496. Argued December 1, 1992-Decided March 8,1993
The Interstate Commerce Act (ICA) requires that motor common
carriers charge the tariff rates they file with the Interstate
Commerce Commission (ICC), 49 U. S. C. § 10762, and that such rates
be "reasonable," § 10701(a). Between 1984 and 1986, petitioner
shippers tendered shipments to Carolina Motor Express, Inc., a
motor carrier subject to ICC regulation, at negotiated rates that
were lower than the applicable tariff rates on file with the ICC.
When Carolina filed for bankruptcy, respondents, the trustee in
bankruptcy and a rate auditing firm, brought adversary proceedings
against petitioners in the Bankruptcy Court to recover the
difference between the negotiated and tariff rates. Petitioners
responded,
inter alia, that the tariff rates were unlawful
because they were unreasonably high. The Bankruptcy Court entered
judgment for respondents based on the tariff rates, but the
District Court reversed and referred petitioners' defenses to the
ICC. The Court of Appeals reversed, holding the petitioners'
"unreasonable rate" claims were no obstacle to respondents' actions
because, even if the tariff rates were unreasonable, the "filed
rate doctrine" required petitioners to pay those rates first and
then seek relief in a separate action under § 11705(b)(3), which
gives shippers an express cause of action against carriers for
damages (reparations) in the amount of the difference between the
tariff rate and the rate determined by the ICC to be
reasonable.
Held:
1. Petitioners' unreasonable-rate claims under § 11705(b)(3) are
subject to the ordinary rules governing counterclaims. Pp.
262-267.
(a) While respondents are technically correct that the
unreasonablerate issue cannot be asserted as a defense,
petitioners' § 11705(b)(3) claims relate to the same shipments for
which respondents seek to collect and, thus, are properly raised
here as counterclaims. It makes no difference that the
counterclaims may have been mistakenly designated as defenses. See
Fed. Rule Civ. Proc. 8(c). Pp.262-263.
(b) The 2-year limitation for bringing a civil action under §
11705(b)(3) is not applicable here since petitioners' claims seek
merely
259
recoupment. See
United States v.
Western Pacific R.
Go., 352 U. S.
59, 71. Pp. 263-265.
(c) Nothing in the ICA provides that, in a carrier's undercharge
collection action, a § 11705(b)(3) counterclaim is not subject to
the normally applicable provisions of the Federal Rules of Civil
Procedure, including Rule 54(b). That Rule permits a district court
to enter separate final judgment on any claim or counterclaim after
making "an express determination that there is no just reason for
delay." The "filed rate doctrine"-which embodies the principle that
a shipper cannot avoid paying the tariff rate by invoking
common-law claims and defensesdoes not preclude avoidance of the
tariff rate through claims and defenses that are specifically
accorded by the ICA itself.
Grancer v.
Lowden,
315 U. S. 631,
distinguished. Pp. 265-267.
2. Respondents' arguments that petitioners' counterclaims are
not yet cognizable in court are rejected. Pp. 267-270.
(a) The contention that paying the tariff rate is a prerequisite
for litigating the reasonableness issue finds no support in the
ICA. Rather, the ICA provides that a claim related to shipment of
property accrues on delivery or tender of delivery, § 11706(g).
Pp.267-268.
(b) Nor are petitioners required initially to present their
claims to the ICC. The doctrine of primary jurisdiction requires
only that a court enable "referral" to an administrative agency of
a claim containing an issue within the agency's special competence,
but does not deprive the court of jurisdiction. And the doctrine of
exhaustion of administrative remedies-which would deprive the court
of jurisdiction-is inapplicable here, both because the ICC has long
interpreted the ICA as giving it no power to decree reparations
itself, and because the Court can discern within the ICA no intent
that ICC determination of the reasonable-rate issue must be
obtained before filing the civil action. Pp. 268-270.
3. The courts below made no "express determination" required
under Rule 54(b) for entry of a separate judgment on respondents'
claims, and it cannot be said categorically that it would be an
abuse of discretion either to grant or to deny such judgment.
Although insolvency of the claimant is a factor weighing against
separate judgment in that claimant's favor, this Court cannot say
that insolvency is an absolute bar.
Gurtiss- Wright Gorp. v.
General Electric Go., 446 U. S. 1, followed. Pp.
270-271.
949 F.2d
107, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, STEVENS, O'CONNOR, KENNEDY, SOUTER,
and THOMAS, JJ., joined. BLACKMUN, J., dissented.
260
Carter G.
Phillips argued the cause for
petitioners. With him on the briefs were
Robert J.
Gallagher and
Rex E. Lee.
Michael L. Dreeben argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Starr, Deputy Solicitor General Wallace, Robert S. Burk,
Henri F. Rush, and Ellen D. Hanson.
Joseph L. Steinfeld, Jr., argued the cause for
respondents.
With him on the brief were Robert B. Walker, John T. Siegler,
and Langdon M. Cooper. *
JUSTICE SCALIA delivered the opinion of the Court.
This case presents the question whether, when a shipper defends
against a motor common carrier's suit to collect tariff rates with
the claim that the tariff rates were unreasonable, the court should
proceed immediately to judgment on the carrier's complaint without
waiting for the Interstate Commerce Commission (ICC) to rule on the
reasonableness issue.
I
In many ways, this is a sequel to our decision in
Maislin
Industries, U. S., Inc. v.
Primary Steel, Inc., 497 U. S. 116 (1990). The
facts of the two cases follow a pattern that has been replicated
many times in the era of "deregulation" following enactment of the
Motor Carrier Act of 1980, 94 Stat. 793: A motor carrier negotiates
with a shipper rates less than
*Rex E. Lee, Carter G. Phillips, John K. Maser III, Frederic L.
Wood, Richard D. Fortin, Daniel J. Sweeney, Paul H. Lamboley,
William J. Augello, Martin W Bercovici, and Robert J. Verdisco
filed a brief for the National Industrial Transportation League et
al. as amici curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
American Freight System, Inc., by
Norman E. Beal; for the
International Brotherhood of Teamsters by
Richard N. Gilberg,
Babette Ceccotti, Marc J.
Fink, and
William W
Pollock; and for Lloyd T. Whitaker as Trustee for the Estate of
Olympia Holding Corp. by
Kim D. Mann.
Leonard L. Gumport filed a brief pro se as amicus curiae.
261
the tariff rates that the Interstate Commerce Act (ICA), 49 U.
S. C. § 10701
et seq., requires the carrier to "publish and
file" with the ICC, 49 U. S. C. § 10762. After the shipments are
delivered and paid for (sometimes years after), the carrier goes
bankrupt and its trustee in bankruptcy sues the shipper to recover
the difference between the negotiated rates and the tariff rates.
Shippers' standard defenses against such "undercharge" actions have
been (1) that the carrier's attempt to collect more than the
agreed-upon rates is an "unreasonable practice" proscribed by the
Act, see § 10701(a), and (2) that the tariff rates were unlawful
because they were unreasonably high, see
ibid. In 1989, the
ICC announced a policy approving the first of these defenses. See
NITL-Petition to Institute Rulemaking on Negotiated Motor Common
Carrier Rates, 5 1. C. C. 2d 623 (1989); see also
NITL-Petition to Institute Rulemaking on Negotiated Motor Common
Carrier Rates, 3 1. C. C. 2d 99 (1986);
Maislin, 497 U.
S., at 121-122. Our decision in
Maislin held that policy
invalid under the ICA, because it would "rende[r] nugatory" the
specific command of § 10761 that the carrier charge the filed rate.
Id., at 133. While
Maislin thus eliminated the
shippers' "unreasonable practice" defense, it expressly noted that
"[t]he issue of the reasonableness of the tariff rates is open for
exploration on remand."
Id., at 129, n. 10. The present case
presents a problem of timing that has arisen out of that issue.
The shippers here are petitioners California Consolidated
Enterprises (CCE) and Peter Reiter. Between 1984 and 1986, they
were engaged in the business of brokering motor carrier
transportation, which essentially involves serving as a middleman
between motor carriers and the shipping public. During that period,
petitioners tendered shipments to Carolina Motor Express, Inc.,
which was operating as a certified motor carrier in interstate
commerce subject to regulation by the ICC. Carolina and petitioners
negotiated rates for several shipments that were lower than the
applicable tariff
262
rates on file with the ICC. (Petitioners believed that Carolina
would publish these negotiated rates in its tariffs, but Carolina
never did so.)
In 1986, Carolina filed for bankruptcy and respondent Langdon
Cooper was appointed trustee. Respondent Mark & Associates of
North Carolina was retained to conduct an audit of Carolina's
shipping bills, which revealed undercharges (below applicable
tariff rates) in the amount of $58,793.03 on shipments made by CCE
and $13,795.73 on shipments made by Reiter. Respondents brought
adversary proceedings against petitioners in Bankruptcy Court to
collect those amounts. Petitioners raised the standard
"unreasonable practice" and "unreasonable rate" claims, and moved
the Bankruptcy Court to stay proceedings and to refer those claims
to the ICC. The Bankruptcy Court refused to do so and entered
judgment for respondents.
In re Carolina Motor Express,
Inc., 84 B. R. 979 (WDNC 1988). In 1989 (prior to our decision
in
Maislin), the District Court reversed and held that the
"unreasonable practice" defense should be referred to the ICC. The
Court of Appeals, after holding respondents' appeal in abeyance
until our decision in
Maislin, reversed the District Court.
In re Carolina Motor Express, Inc., 949
F.2d 107 (CA4 1991). It held that, in light of
Maislin,
there was no need to refer the "unreasonable practice" issue to the
ICC, 949 F. 2d, at 109; and that the "unreasonable rate" claim was
no obstacle to the carrier's action, since even if the tariff rates
were unreasonable the "filed rate" doctrine requires the shipper to
pay them first and then seek relief in a separate action for
damages under § 11705(b)(3), id., at 110-111. We granted
certiorari. 504 U. S. 907 (1992).
II
The ICA requires carriers' rates to be "reasonable," § 10701(a),
and gives shippers an express cause of action against carriers for
damages (called "reparations" in the precodification version of the
statute, see 49 U. S. C. §§ 304a(2),
263
(5) (1976 ed.)) in the amount of the difference between the
tariff rate and the rate determined to be reasonable by the ICC, §
11705(b)(3).1 Respondents argue, however, that the unreasonableness
of a tariff rate may not be asserted as a "defense" to an action to
recover charges based on that rate. That may be true in a technical
sense, since § 11705(b)(3) provides a
cause of action rather
than a
defense. But that does not establish that the
"unreasonable rate" issue cannot be raised in the present suit,
since a defendant having a cause of action against a plaintiff
may-indeed, often must-assert that cause of action as a
counterclaim. See Fed. Rule Civ. Proc. 13;
Southern Constr.
Co. v.
Pickard, 371 U. S. 57, 60 (1962).
Petitioners' claims under § 11705(b)(3) are certainly properly
raised here, since they relate to the same shipments for which
respondents seek to collect. And it makes no difference that
petitioners may have mistakenly designated their counterclaims as
defenses, since Federal Rule of Civil Procedure S(c) provides that
"the court on terms, if justice so requires, shall treat the
pleading as if there had been a proper designation." See also 5 C.
Wright & A. Miller, Federal Practice and Procedure § 1275, pp.
459-460 (2d ed. 1990) ("Inasmuch as it is not clear whether
set-offs and recoupments should be viewed as defenses or
counterclaims, the court, by invoking the misdesignation provision
in Rule S(c), should treat matter of this type as if it had been
properly designated by defendant, and should not penalize improper
labelling").
Under 49 U. S. C. § 11706(c)(2), a shipper "must begin a civil
action to recover damages under [§ 11705(b)(3)] within two years
after the claim accrues," which occurs "on delivery or tender of
delivery by the carrier," § 11706(g). That limi-
1 Section 11705(b)(3) provides in relevant part:
"A common carrier providing transportation or service subject to
the jurisdiction of the Commission ... is liable for damages
resulting from the imposition of rates for transportation or
service the Commission finds to be in violation of this
subtitle."
264
tation is not applicable here, however, since presented in
response to the carrier's suit petitioners' claims seek merely
"recoupment"-i.
e., the setting off against asserted
liability of a counterclaim arising out of the same transaction.
Recoupment claims are generally not barred by a statute of
limitations so long as the main action is timely. See
Bull
v.
United States, 295 U. S. 247, 262
(1935); 3 J. Moore, B. Ward, & J. Lucas, Moore's Federal
Practice' 13.11 (1992). There is no reason not to apply this
principle to suits under the ICA, and we have indeed already done
so. In
United States v.
Western Pacific R. Co.,
352 U. S. 59, 71
(1956), we held that an ICA limitation provision nearly identical
to the one at issue here did not prohibit the shipper (the United
States) from asserting "by way of defense" unreasonablerate claims
against a carrier seeking to collect on previous shipments.
Respondents seek to distinguish
Western Pacific on the
ground that the United States has a unique statutory setoff right
(now codified at 31 U. S. C. § 3726), allowing it to deduct from
amounts due to a carrier prior overcharges by the carrier. That
statute may well have been essential to the holding in the case,
since some of the amounts withheld by the United States were not
recoupments (they related to shipments other than those that were
the subjects of the carriers' suits). But the rationale of the case
is the same as the rationale that permits recoupment here: "Only
the clearest congressional language could force us to a result
which would allow a carrier to recover unreasonable charges with
impunity merely by waiting two years before filing suit." 352 U.
S., at 71. See
Glama Dress Co. v.
Mid-South Transports,
Inc., 335 1. C. C. 586, 589 (1969). Courts of Appeals have
understood
Western Pacific as expressing not just a narrow
holding based on the United States setoff statute, but a general
principle of recoupment applicable in other contexts. See
Distribution Services, Ltd. v.
Eddie Parker Interests,
Inc., 897 F.2d
811, 813 (CA5 1990);
In re Smith, 737 F. 2d 1549, 1554
(CAll 1984); 118
East 60th Owners, Inc.
265
v.
Bonner Properties, Inc., 677 F.2d
200, 203 (CA2 1982);
Luckenbach S. S.
Co. v.
United States, 312 F.2d
545, 549, n. 3 (CA21963).
One major consequence does attach to the fact that an
unreasonable-rate claim is technically a counterclaim rather than a
defense: A defense cannot possibly be adjudicated separately from
the plaintiff's claim to which it applies; a counterclaim can be.
Federal Rule of Civil Procedure 54(b) permits a district court to
enter separate final judgment on any claim or counterclaim, after
making "an express determination that there is no just reason for
delay." See
Sears, Roebuck &
Co. v.
Mackey, 351 U.
S. 427 (1956);
Cold Metal Process Co. v.
United
Engineering &
Foundry Co., 351 U. S. 445 (1956).
This power is largely discretionary, see
CurtissWright Corp.
v.
General Electric Co., 446 U. S. 1, 10 (1980), to
be exercised in light of "judicial administrative interests as well
as the equities involved," id., at 8, and giving due weight to
"'the historic federal policy against piecemeal appeals,'"
ibid. (quoting
Sears, supra, at 438).2
Nothing in the lCA provides that, in an action by a carrier to
collect undercharges, a § 11705(b)(3) counterclaim is not subject
to the normally applicable provisions of the Federal Rules.
Respondents contend that the so-called "filed rate doctrine" gives
them absolute entitlement to judgment on their undercharge claims,
without defense or counterclaim.
2 For purposes of applying the Federal Rules of Civil Procedure
governing counterclaims, it does not matter that this action arose
in bankruptcy. Rules 8 and 54 are made fully applicable in
adversary proceedings by Bankruptcy Rules 7008 and 7054, and Rule
13 is made applicable with only minor variation (not relevant here)
by Bankruptcy Rule 7013. It is well settled, moreover, that a
bankruptcy defendant can meet a plaintiffdebtor's claim with a
counterclaim arising out of the same transaction, at least to the
extent that the defendant merely seeks recoupment. See
In re
B &
L Oil Co., 782 F.2d
155, 157 (CAlO 1986);
Lee v.
Schweiker, 739 F. 2d
870, 875 (CA3 1984). Recoupment permits a determination of the
"just and proper liability on the main issue," and involves "no
element of preference." 4 Collier on Bankruptcy' 553.03, p. 553-17
(15th ed. 1991).
266
We disagree. The filed rate doctrine embodies the principle that
a shipper cannot avoid payment of the tariff rate by invoking
common-law claims and defenses such as ignorance, estoppel, or
prior agreement to a different rate. See
Texas &
Pacific R. Go. v.
Mugg, 202 U. S. 242, 245
(1906);
Louisville &
Nashville R. Go. v.
Maxwell, 237 U.
S. 94, 98 (1915);
Pittsburgh, c., C. & S.
L. R.
Go. v.
Fink, 250 U. S. 577, 581582
(1919). It assuredly does
not preclude avoidance of the
tariff rate, however, through claims and defenses that are
specifically accorded by the ICA itself. We can agree with
respondents that this latter category does not include any
"unreasonable rate defense," derived from the general ICA
requirement (now codified in § 10701(a)) that a carrier's rates be
"reasonable." See
T. 1.
M. E. Inc. v.
United
States, 359 U. S. 464, 468-472 (1959). But we cannot agree that
the filed rate doctrine precludes shippers from asserting (by way
of claim
or counterclaim) the reparations rights explicitly
conferred by § 11705(b)(3).
Contrary to respondents' contention, the preclusive effect of
the filed rate doctrine over reparations counterclaims is not
established by our opinion in
Grancer v.
Lowden, 315
U. S. 631 (1942). There, shippers sued by a rail carrier for
payment of tariff rates challenged them as unreasonable, and sought
to stay the collection action until the ICC had an opportunity to
rule on that issue. The District Court denied the stay and entered
judgment for the carrier. But unlike the present petitioners, the
shippers in
Grancer had no counterclaim; they had already
instituted an administrative reparations proceeding (as the ICA
allowed for rail carriage) before they were sued in district court,
see Reply Brief for Petitioners 13 and Brief for Respondents 18, in
Grancer v.
Lowden, O. T. 1941, No. 505, which
precluded filing a reparations claim in district court. See 49 U.
S. C. § 9 (1946 ed.). Moreover, all that
Grancer held was
that "there was no abuse of discretion by the trial judge," since
the equities balanced against waiting for the ICC's determination.
315
267
u. S., at 636. Thus,
Crancer held that the court was not
required to stay the collection proceeding until the ICC
ruled on the reasonableness of rates; not that the court was
prohibited from doing so. That is entirely consistent with
our holding here.
III
Respondents raise two arguments to the effect that petitioners'
§ 11705(b)(3) counterclaims are not yet cognizable in court. First,
respondents argue that there exists what they denominate as a "pay
first" rule, whereby payment of the tariff rate is a "prerequisite
to litigating the rate reasonableness issue." Brief for Respondents
23. See also
Milne Truck Lines, Inc. v.
Makita U. S.
A., Inc., 970 F.2d
564, 572 (CA9 1992) (embracing similar theory). That argument
would have merit if the holding in
United States ex rel.
Louisville Cement Co. v.
ICC, 246 U. S. 638 (1918),
were still good law. In that case, this Court held that a shipper's
cause of action for reparations did not accrue "until payment had
been made of the unreasonable charges."
Id., at 644. The
opinion noted that "if Congress had intended that the cause of
action of the shipper to recover damages for unreasonable charges
should accrue when the shipment was received, or when it was
delivered by the carrier, ... a simple and obvious form for
expressing that intention would have been used."
Ibid.
Within two years, Congress enacted a simple and obvious provision
stating that any "cause of action in respect of a shipment of
property shall ... be deemed to accrue upon delivery or tender of
delivery." Transportation Act of 1920, § 424, 41 Stat. 492. That
provision survives in substantially the same form in text now
codified at 49 U. S. C. § 11706(g). While it is theoretically
possible for a statute to create a cause of action that accrues at
one time for the purpose of calculating when the statute of
limitations begins to run, but at another time for the purpose of
bringing suit, we will not infer such an odd result in the absence
of any such indication in the statute. We therefore hold that
268
petitioners could assert a claim under § 11705(b)(3) before
payment, but after their shipments were delivered.
Second, respondents contend that the doctrine of primary
jurisdiction requires petitioners initially to present their
unreasonable-rate claims to the ICC, rather than to a court. That
reflects a mistaken understanding of primary jurisdiction, which is
a doctrine specifically applicable to claims properly cognizable in
court that contain some issue within the special competence of an
administrative agency. It requires the court to enable a "referral"
to the agency, staying further proceedings so as to give the
parties reasonable opportunity to seek an administrative ruling.3
See
Western Pacific, 352 U. S., at 63-64;
Ricci v.
Chicago Mercantile Exchange, 409 U. S. 289, 291, 302
(1973);
Port of Boston Marine Terminal Assn. v.
Rederiaktiebolaget Transatlantic, 400 U. S. 62, 65, 68
(1970). Referral of the issue to the administrative agency does not
deprive the court of jurisdiction; it has discretion either to
retain jurisdiction or, if the parties would not be unfairly
disadvantaged, to dismiss the case
3 "Referral" is sometimes loosely described as a process whereby
a court refers an issue to an agency. See,
e. g., 28 U. S.
C. § 1336. But the ICA (like most statutes) contains no mechanism
whereby a court can on its own authority demand or request a
determination from the agency; that is left to the adversary
system, the court merely staying its proceedings while the shipper
files an administrative complaint under § 11701(b). See §
11705(c)(1) (second sentence). Use of the term "referral" to
describe this process seems to have originated in
Western
Pacific, which asserted that, where issues within the special
competence of an agency arise, "the judicial process is suspended
pending referral of such issues to the administrative body for its
views."
United States v.
Western Pacific R. Co., 352
U. S. 59, 64 (1956). At the conclusion of that passage, the
Western Pacific Court cited
General American Tank Car
Corp. v.
El Dorado Terminal Co., 308 U. S. 422, 433
(1940), which in turn cited
Mitchell Coal &
Coke
Co. v.
Pennsylvania R. Co., 230 U. S. 247 (1913).
Mitchell Coal spelled out the actual procedure contemplated,
holding that further action by the district court should "be stayed
so as to give the plaintiff a reasonable opportunity within which
to apply to the Commission for a ruling as to the reasonableness of
the practice," id., at 267.
269
without prejudice. See
Carnation Co. v.
Pacific
Westbound Conference, 383 U. S. 213, 222-223
(1966);
Mitchell Coal &
Coke Co. v.
Pennsylvania R. Co., 230 U. S. 247, 266-267
(1913); Jaffe, Primary Jurisdiction, 77 Harv. L. Rev. 1037, 1055
(1964).
The result that respondents seek would be produced, not by the
doctrine of primary jurisdiction, but by the doctrine of exhaustion
of administrative remedies. Where relief is available from an
administrative agency, the plaintiff is ordinarily required to
pursue that avenue of redress before proceeding to the courts; and
until that recourse is exhausted, suit is premature and must be
dismissed. See
Myers v.
Bethlehem Shipbuilding Corp.,
303 U. S. 41,
50-51 (1938);
Heckler v.
Ringer, 466 U. S. 602, 617, 619,
and n. 12 (1984). That doctrine is inapplicable to petitioners'
reparations claims, however, because the ICC has long interpreted
its statute as giving it no power to decree reparations relief.
Shortly after enactment of the provision now codified at §
11705(b)(3), the ICC said that the law did not "grant the
Commission any initial jurisdiction ... with respect to the award
of reparations"; rather, "shippers' recourse
must be to the
courts," which would "refer" the issue of rate reasonableness to
the Commission.
Informal Procedure for Determining Motor Carrier
and Freight Forwarder Reparation, 335 1. C. C. 403, 413 (1969).
The ICC continues to adhere to that view. Brief for United States
as
Amicus Curiae 9, n. 6;
NITL-Petition to Institute
Rulemaking on Negotiated Motor Common Carrier Rates, 31. C. C.
2d, at 106
107; NITL-Petition to Institute Rulemaking on
Negotiated Motor Common Carrier Rates, 5 1. C. C. 2d, at 625,
630-631. We find that to be at least a reasonable interpretation of
the statute, and hence a binding one.
Chevron U. S.
A.
Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837
(1984).
Nor can we discern within the ICA an intent that, even though
the ICC cannot decree relief, ICC determination of
270
the reasonable-rate issue must be obtained before filing the
civil action. Since the limitations period for filing actions under
§ 11705(b)(3) begins running at the time of delivery of the
shipment, rather than at the time the ICC enters an order, compare
§§ 11706(c)(2) and (g) with § 11706(e), the period could expire
before the ICC acted. We are not disposed to find an implicit
prior-agency-determination requirement that would have such
consequences.
IV
Since we have concluded that petitioners' unreasonablerate
claims are subject to the ordinary rules governing counterclaims,
the judgment below must be reversed. Neither the Court of Appeals
nor the District Court made the "express determination" required
under Rule 54(b) for entry of a separate judgment on respondents'
claims, and we cannot say categorically that it would be an abuse
of discretion either to grant or to deny separate judgment. In the
ordinary case, where a carrier is solvent and has promptly
initiated suit, the equities favor separate judgment on the
principal claim: referral of the unreasonable-rate issue could
produce substantial delay, and tariff rates not disapproved by the
ICC are legal rates, binding on both the shipper and the carrier.
See
Keogh v.
Chicago &
Northwestern R.
Co., 260 U. S.
156, 163 (1922);
Arizona Grocery Co. v.
Atchison,
T. & S.
F. R. Co., 284 U. S. 370, 384
(1932);
Lowden v.
Simonds-Shields-Lonsdale Grain Co.,
306 U. S. 516,
520 (1939). The equities change, however, when the suing carrier is
in bankruptcy. Indeed, we have previously held that even a "threat
of insolvency" of the party seeking separate judgment is a factor
weighing against it. See
CurtissWright, 446 U. S., at 12.
Even so, we cannot say that insolvency is an absolute bar.
Conceivably, a district court could determine that other equities
favor separate judgment-for example, a threat that the
shipper may become insolvent, which Rule 62(h) would allow a
court to protect against by
271
entering separate judgment for the carrier but staying
enforcement on condition that the shipper deposit the amount of the
judgment with the court.
Id., at 13, n. 3.
The judgment of the Court of Appeals is reversed, and the case
is remanded for proceedings consistent with this opinion.
It is so ordered.
JUSTICE BLACKMUN dissents.
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