John W. HARGRAVE, Trustee in Bankruptcy for Circle C Trucking, Plaintiff-Appellant, v. FREIGHT DISTRIBUTION SERVICE, INC., Defendant-Appellee

We consider two questions. First, we examine whether in a suit brought on behalf of a bankrupt common carrier for recovery Of the carrier’s filed rate, the district court must refer the issue of the reasonableness of the filed rate to the Interstate Commerce Commission for an initial determination. Although we have addressed this question before, we revisit it in light of the Supreme Court’s decision in Reiter v. Cooper, — U.S. -, 113 S.Ct. 1213 , 122 L.Ed.2d 604 (1993). Second, we address contract of carriage questions.

The district court granted summary judgment for Freight Distribution Service, Inc. (“FDSI”) on the grounds that Circle C Trucking’s filed rates were unreasonable. We have jurisdiction pursuant to 28 U.S.C. § 1291 . Because we conclude that the district court should not have determined the reasonableness of the filed rate, and because we are unable to decide as a matter of law that the carrier provided contract carriage to the shipper, we reverse summary judgment and remand for further proceedings.

I

Circle C Trucking (“Circle C”) operated in interstate commerce pursuant to a grant of authority issued by the Interstate Commerce Commission (“ICC”) to provide both…