Legal Opinion · Concurring in part, dissenting in part
Cooper v. Delaware Valley Shippers (In re Carolina Motor Express, Inc.)
Court of Appeals for the Fourth Circuit
Decided November 7, 1991No. Nos. 89-3259, 89-3261 and 89-3262Published
1Concurring in part, dissenting in partK.K. Hall, Circuit Judge
I agree with the majority’s application of Maislin to the cases before us to the extent that the shippers’ defense of “unreasonable practice” is disallowed as violative of the filed-rate doctrine. I disagree, however, with the majority’s holding that a shipper may not raise “unreasonable rate” as a defense in an undercharge action. Furthermore, I believe that the equitable defense of unreasonable rate implicates a matter within the primary jurisdiction of ICC, and, therefore, referral to that agency and a stay of the court proceedings is the proper course of action.
Maislin involved a fact…
2Cases cited10 opinions
- United States v. Western Pacific RailroadSupreme Court of the United States · 1956
- Delta Traffic Service, Inc. v. Transtop, IncorporatedCourt of Appeals for the First Circuit · 1990
- James G. Duffy, Trustee for Canny Trucking Co., Inc. v. Bmc Industries, Inc., Doing Business as Buckbee Mears Cortland Co.Court of Appeals for the Second Circuit · 1991
- Maislin Industries, U.S., Inc. v. Primary Steel, Inc.District Court, W.D. Missouri · 1988
- Bergquist v. 7/24 Freight Sales, Inc. (In Re Sharm Express, Inc.)District Court, D. Minnesota · 1991
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