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909 F2d 1488 Delta Traffic Service Inc v. Howlett Olsen Egg Co

909 F.2d 1488

Unpublished Disposition

DELTA TRAFFIC SERVICE, INC., Plaintiff-Appellant,
v.
HOWLETT OLSEN EGG CO., aka Howlett Olsen Co., a Nevada
corporation, Defendant-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 89-15285.

2

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 19, 1990.
Decided Aug. 6, 1990.

3

Before HUG and SCHROEDER, Circuit Judges, von der HEYDT,* District Judge.

4

MEMORANDUM*

5

Delta Traffic Service, Inc. ("Delta"), the assignee of Transpo International, Inc. ("Transpo"), seeks to recover undercharges and prejudgment interest from Howlett Olsen Egg Co. ("Howlett"). After a bench trial, the district court denied Delta's request. Delta now appeals. We affirm.

6

Under Transpo's published tariff, a customer may only receive the benefit of a full-load rate if a "bill of lading or shipping order" was issued. Commodity Tariff ICC TPOI 200-A, Item 1025. We agree with the district court's reasoning and find that Howlett's telephone call to Transpo constituted a single shipping order.

7

Delta maintains that an oral shipping order was precluded by the terms of the tariff. However, Delta does not refer to an express provision in the tariff requiring a writing at the time the shipping order was made.1 Howlett's order contained the points at which the shipment was to be stopped, a complete description of the kind and quantity of the freight, and the name and address of the recipient. This information is all that was required under the terms of the tariff. See Commodity Tariff ICC TPOI 200-A(B), Item 1025. Because a single shipping order was issued, Howlett was entitled to the full-load rate. See Commodity Tariff ICC TPOI 200-A, Item 1025.

8

The district court properly rejected Delta's request for undercharges and its judgment is AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provied by 9th Cir.R. 36-3

**

The Honorable James A. von der Heydt, Senior United States District Judge for the District of Alaska, sitting by designation

1

Delta does not dispute Howlett's assertion that written freight bills were ultimately prepared by Transpo to ensure Howlett's payment in accordance with the published rate