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NEPERA CHEM., INC. v. SEA-LAND SERV.

October 28, 1981

NEPERA CHEMICAL, INC., Plaintiff,
v.
SEA-LAND SERVICE, INC., Defendant, United States of America and the Federal Maritime Commission, Intervenors



The opinion of the court was delivered by: PENN

MEMORANDUM ORDER

The plaintiff filed this negligence action requesting compensatory and punitive damages and attorney fees, costs and related expenses for prosecuting an appeal from the Federal Maritime Commission (FMC) to the United States Court of Appeals for the District of Columbia. The case is now before the Court on defendant's motion for summary judgment and plaintiff's cross motion for partial summary judgment. *fn1"

 I

 The underlying facts are set forth in the Stipulation of Facts signed and filed by counsel on March 17, 1980. That stipulation, without the attached exhibits, is attached hereto and incorporated as the statement of facts in this Memorandum Order. *fn2" See Appendix A. Those facts contained in the attached stipulation will not be repeated here.

 After the filing of the attached stipulation, the FMC and the United States filed a motion for leave to intervene and to join with defendant in its motion for summary judgment. Thereafter, this case remained inactive while plaintiff prosecuted its appeal in the United States Court of Appeals. The Court of Appeals reversed the decision of the FMC and remanded to the agency. Nepera Chemical, Inc. v. Federal Maritime Commission, 213 U.S. App. D.C. 173, 662 F.2d 18 (D.C.Cir.1981). The court held that the FMC had erroneously denied the application by defendant for a waiver of freight charges for the benefit of the plaintiff with the result that, of the $ 56,361.15 paid by plaintiff, defendant is now entitled to refund the overcharge of $ 42,569.90 to the plaintiff. Id., at 20, n. 7.

 In this case, the plaintiff seeks compensatory damages in the amount of $ 42,749.90, punitive damages in the amount of $ 100,000 and legal fees, court costs and related expenses paid by plaintiff in prosecuting the appeal in the United States Court of Appeals. The amount of compensatory damages claimed by plaintiff is almost equal to the difference between the original rate defendant represented it would charge and the rate defendant actually was required to charge as the result of the tariff.

 Both the Federal Maritime Commission and the United States have moved to intervene in these proceedings and that motion is granted.

 II

 The Court assumes that plaintiff no longer seeks compensatory damages in this case in view of its success in the Court of Appeals. See Nepera Chemical, Inc. v. Federal Maritime Commission, supra. Nevertheless, the Court must determine whether it had jurisdiction to award compensatory damages if plaintiff, either had not prosecuted the companion case or had been unsuccessful in that appeal.

 The defendant and the intervenors contend that plaintiff's sole remedy under the facts of this case was to seek FMC approval to refund the overcharge or to waive collection of the freight charge pursuant to Section 18(b)(3) of the Shipping Act, 46 U.S.C. ยง 817(b)(3). This Court agrees.

 Plaintiff's argument that it may maintain an action at common law is without merit. Plaintiff relies principally on two cases to support its argument, Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 96 S. Ct. 1978, 48 L. Ed. 2d 643 (1976), and Hewitt-Robins, Inc. v. Eastern Freight-Ways, 371 U.S. 84, 83 S. Ct. 157, 9 L. Ed. 2d 142 (1962), but those cases are distinguishable.

 The claimants in Nader and Hewitt-Robins did not challenge the tariffs in those cases. In Nader, the claimant complained of the overbooking practices of the airline and "(h)e (made) no challenge to any provision in the tariff." 426 U.S. at 304, 96 S. Ct. at 1987. The claimant in Hewitt-Robins made no attack on the carrier's published tariffs, rather the controversy there "hinge(d) entirely upon whether the carrier violated its duty to the shipper in selecting" a route which subjected the shipper to a higher rate. 371 U.S. at 86, 96 S. Ct. at 159. Here, the plaintiff seeks indirectly to challenge the rate it was charged thereby raising a question of the validity of the rate or practices included in the tariff filed with FMC. For these reasons, the Court concludes that plaintiff cannot maintain a separate action for compensatory damages.

 The same rationale applies to plaintiff's claims for punitive damages. Additionally, the plaintiff has set forth no facts which would entitle it to an award for punitive damages. Defendant is entitled to summary judgment as to both compensatory damages and punitive damages.

 III

 Plaintiff's final claim is for attorney fees and costs and expenses for prosecuting its appeal to the United States Court of Appeals in the related case. See Nepera Chemical, Inc. v. Federal Maritime Commission, supra. In order to recover for attorney fees, the plaintiff must demonstrate that it is entitled to an award pursuant to a contract or agreement between the parties or a statute. This is the "American Rule". Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); F. D. Rich Co., Inc. v. United States, ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 94 S. Ct. 2157, 40 L. Ed. 2d 703 (1974). Plaintiff has made no showing that ...


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