458
Ginsburg, J., dissenting
Court reasons, "would be just as well placed to discriminate among shippers by measuring with rubber instruments as it would be by charging shippers for a stated distance at mutable rates per mile." Ibid.; see also ante, at 443 ("We are dealing . . . with an incomplete tariff insufficient to support a reliable calculation of charges.").
It is difficult to regard the Commission's approach, and the Court's approval of it, as anything other than an end-run around the filed rate doctrine so recently and firmly upheld in Maislin. For the distances put forward in the tariff at issue are not genuinely in doubt. On the contrary, Riss' tariff explicitly incorporated the mileage figures from HGCB's Mileage Guide. A "close inspection of [HGCB's tariff supplement] might have raised some uncertainty in a shipper's mind about the propriety of [Riss'] reference to the Guide [Riss not having paid its dues], but not any uncertainty over the rate." Overland Express, Inc. v. ICC, 996 F. 2d 356, 361 (CADC 1993) (Silberman, J.), cert. pending, No. 93-883. As crisply stated in Brizendine v. Cotter & Co., 4 F. 3d 457, 463-464 (CA7 1993) (Flaum, J.), cert. pending, No. 93-1129:
"[S]urely [the carrier's] tariff provided sufficient information about its rates to give notice to its customers about the price of shipping. Any shipper who consulted [the carrier's] tariff would find the rate per mile and would know where to look—namely, to another tariff on file with the ICC—to determine the distance. . . . [T]he only way a curious shipper would ever know that [the carrier] failed to submit a power of attorney to HGCB would be if it looked up [the] filed rate; saw that the tariff refers to HGCB's mileage guide; inspected the mileage guide; noticed that page two of the guide states that it applies only to participating carriers listed in a supplement; turned to the supplement; and discovered that [the carrier's] name was missing."
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