Cite as: 507 U. S. 258 (1993)
Opinion of the Court
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 I. C. C. 2d 623 (1989); see also NITL—Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 3 I. 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
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