CAR TRANSPORTATION v DARDEN, 9856122
U.S. 9th Circuit Court of Appeals
CAR TRANSPORTATION v DARDEN
9856122
C.A.R. TRANSPORTATION
BROKERAGE COMPANY, INC.,
Plaintiff-Appellant, No. 98-56122
v. D.C. No.
CV-97-03758-
DARDEN RESTAURANTS, INC.;
MMM(CTx)
GULF, ATLANTIC & PACIFIC
SHIPPER SERVICES, INC.; TRANS- OPINION
PAC FOODS, LTD.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
February 7, 2000--Pasadena, California
Filed May 22, 2000
Before: Harry Pregerson, Frank Magill,* and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Magill
SUMMARY
The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________
Business Law/Transportation
The court of appeals affirmed a judgment of the district
court. The court held that a subcontracting motor carrier's
driver can allocate liability for freight charges under the Inter-
state Commerce Act (ICA) by signing a waiver form
presented by the consignor.
Appellee Darden Restaurants, Inc. bought frozen shrimp
from appellee Trans-Pac Foods, Ltd. for delivery to Darden in
Indianapolis, Indiana. The purchase price included freight
charges from Trans-Pac's Los Angeles facilities to Indianapo-
lis. Trans-Pac arranged to have Gulf Atlantic and Pacific
Shipper (GAP) serve as transportation broker. GAP con-
tracted with appellant C.A.R. Transportation Brokerage Com-
pany (CAR), which arranged for motor carriage by Potts
Transport, All American Transport, and Don Senske Truck-
ing.
When Trans-Pac tendered the three shipments to the carri-
ers at its facilities, the invoices and bills of lading specified
Trans-Pac as the shipper/consignor and Darden as the con-
signee. As "authorized representatives," the drivers signed a
"Waiver of Claim by Subcontractor" relinquishing any claim
the carriers had against Trans-Pac or Darden for payment of
the shipping charges. Trans-Pac also initialed a non-recourse
clause on the bill of lading for the Senske shipment releasing
itself from liability for the corresponding freight charges.
The carriers transported and delivered the shrimp. Trans-
Pac paid GAP for the shipping charges. CAR billed GAP for
the charges, but GAP filed for bankruptcy without paying
them.
CAR sued Darden and Trans-Pac, alleging that as con-
signee, Darden was liable for the freight charges under the
ICA. CAR dropped its claim regarding the Potts shipment
when it was unable to produce an assignment of rights from
Potts. CAR also conceded that it had executed a non-recourse
provision in the Senske bill of lading, and withdrew its claim
against Trans-Pac for that shipment. The only claims left were
$1925 on the All American shipment and $1925 on the Sen-
ske shipment against Darden. Trans-Pac and Darden moved
for summary judgment.
The district court found that the truck drivers had ostensible
authority to sign the waivers based on: their execution of all
contractual documents on behalf of the carriers governing
transportation of the shrimp; the absence of evidence that any-
thing put Trans-Pac on notice that the drivers lacked authority
to execute the waivers; the fact that the drivers were the only
carrier representatives with whom Trans-Pac dealt; Trans-
Pac's ignorance of the identity of the carrier of a particular
shipment until the driver arrived; and a declaration of Trans-
Pac manager Frank DiGennaro stating that drivers routinely
bind carriers to waivers and agreements regarding liability for
loss or damage to shipped goods. The court also found that
because the Senske waiver was signed by the carrier's owner,
the driver had apparent authority.
CAR offered the declaration of its general manager Clifford
Riggins, who asserted that he was unaware of any law indicat-
ing that a truck driver can bind his carrier to a waiver of
claims for transportation charges.
The district court ruled that the Riggins' declaration did not
address the issue of whether industry custom and practice
vested drivers with apparent authority to bind their carriers to
terms in bills of lading and waivers of the right to collect
freight charges from consignors and consignees. The court
concluded that the waivers signed by the truck drivers could
lawfully allocate liability for the freight charges under the
ICA, and that the drivers had ostensible authority to sign the
waivers on behalf of the carriers. CAR appealed.
[1] The ICA requires motor carriers to publish their rates in
tariffs filed with the Surface Transportation Board. [2] The
Board requires the issuance of a receipt or bill of lading for
all interstate shipments. The bill of lading is the basic trans-
portation contract between the shipper-consignor and the car-
rier. It provides that the owner or consignee will pay the
freight on transported property, and that the consignor
remains liable to the carrier for all lawful charges. However,
if the nonrecourse clause is signed by the consignor and no
provision is made for payment of freight, delivery to the con-
signee relieves the consignor of liability.
[3] Although the bill of lading contains default terms allo-
cating liability for freight charges, it is not the exclusive
means of creating a contract. Subject to the rule that prohibits
discrimination, the parties are free to contract by whom the
freight charges should be paid. Only when the parties fail to
agree or discriminatory practices are present will the ICA's
default terms bind the parties.
[4] The ICA's purpose of eliminating rate discrimination on
interstate shipments was not implicated in this case. Because
an external contract entered into by the carriers lawfully allo-
cated liability for the freight charges, resort to the allocation
presumptions on the bill of lading was unnecessary. The
waivers signed by the drivers lawfully waived the carriers'
rights against Trans-Pac and Darden for the charges.
[5] California law controlled the issue of whether the driv-
ers had ostensible authority to sign the waivers. [6] To estab-
lish ostensible authority, the principal's consent need not be
express. Ostensible authority may be proven through evidence
of the principal transacting business solely through the agent.
[7] CAR's evidence refuting the drivers' ostensible author-
ity did not set forth specific facts showing that there was a
genuine issue for trial. Riggins' affidavit was not sufficient to
defeat Trans-Pac's and Darden's motion for summary judg-
ment.
_________________________________________________________________
COUNSEL
William J. Sarrus, Tustin, California; and Joseph T. Bam-
brick, Jr., Joseph T. Bambrick & Associates, West Reading,
Pennsylvania, for the plaintiff-appellant.
Lisa Ann Cohen, Frank E. Merideth, Jr., and Edward Gerard
Becker, Bryan Cave, Santa Monica, California, for the
defendants-appellees.
_________________________________________________________________
OPINION
MAGILL, Senior Circuit Judge:
This case arises out of a dispute concerning the payment of
$5,750.00 in freight charges incurred when Trans-Pac Foods,
Ltd. (Trans-Pac) arranged to send three truckloads of shrimp
to Darden Restaurants, Inc. (Darden). The plaintiff in this
case, C.A.R. Transportation Brokerage Company, Inc. (CAR),
filed suit against Darden and Trans-Pac claiming that, under
49 U.S.C. S 13706, Darden and/or Trans-Pac (collectively,
Appellees) must pay it for the freight charges generated by the
three shipments. CAR appeals the district court's grant of
summary judgment holding that "Waiver of Claim by Sub-
contractor" forms signed by truck drivers for the carriers of
the shrimp shipments lawfully allocated liability for the
freight charges under the Interstate Commerce Act (ICA).
CAR also appeals the court's holding that the drivers had
ostensible authority to sign the waivers on behalf of their prin-
cipals. We affirm the judgment of the district court.
I. BACKGROUND
In January 1997, Darden purchased frozen shrimp from
Trans-Pac in Los Angeles for delivery to Darden's warehouse
in Indianapolis, Indiana. Darden's purchase price for the
shrimp included freight charges from Trans-Pac's facilities in
Los Angeles to Indianapolis. Trans-Pac arranged for the trans-
portation of the shrimp, apparently no small matter, through
Gulf Atlantic & Pacific Shipper (GAP), a transportation broker.1
GAP, in turn, contracted with CAR, also a transportation bro-
ker, and CAR arranged to have three different motor carriers
transport the shrimp to Indiana.
The three shrimp shipments were tendered to Potts Trans-
port, All American Transport, and Don Senske Trucking, Inc.
(collectively, Carriers) at Trans-Pac's facilities on January 3,
January 27, and January 28, 1997, respectively. The invoices
and bills of lading for all three shipments designated Trans-
Pac as the shipper/consignor and Darden as the consignee.
The drivers, as "Authorized Representatives" for the Carriers,
each signed a "Waiver of Claim by Subcontractor, " waiving
any claim the Carriers had against Appellees for the payment
of shipping charges.2 In addition, Trans-Pac initialed a non-
recourse clause on the bill of lading for the shipment deliv-
ered by Don Senske Trucking, Inc., releasing itself from any
liability for the freight charges associated with the shipment.
The shipments were transported with reasonable dispatch
and delivered in good order. On February 27, 1997, Trans-Pac
paid GAP for the shipping charges. CAR billed GAP for the
freight charges, but GAP never paid and on July 28, 1997,
filed a Chapter 11 bankruptcy proceeding.
On May 20, 1997, CAR filed a lawsuit against Darden
alleging that Darden, as consignee, was liable for the freight
charges under 49 U.S.C. S 13706.3 In response to concerns
that it did not have standing to bring suit because it had no
contractual relationship with either defendant, did not trans-
port the shrimp itself, and did not establish that it is a "carri-
er" within the meaning of the ICA, CAR amended its
complaint and, eventually, alleged that it had an assignment
of rights from the Carriers. CAR also named Trans-Pac as a
defendant. However, after CAR was unable to show that it
had an assignment of rights from Potts Transport, it dropped
its claim against Appellees for the freight charges associated
with that shipment. CAR also acknowledged that it had signed
a nonrecourse provision on the bill of lading for the shipment
transported by Don Senske Trucking, Inc. and withdrew its
claim against Trans-Pac for the Senske shipment.
On April 17, 1998, Appellees moved for summary judg-
ment on the only claims left: the All American Transport
shipment for $1,925.00 against both Trans-Pac and Darden,
and the Don Senske Truck, Inc. shipment for $1,925.00
against Darden. On May 20, 1998, after reviewing the evi-
dence and arguments of the parties, the district court held that
the waivers signed by the Carriers' drivers could lawfully
allocate liability for freight charges under the ICA and that the
drivers had ostensible authority to sign the waivers on behalf
of their principals. Subsequently, CAR brought the present
appeal.
II. ANALYSIS
A. Jurisdiction
[1] The ICA requires motor common carriers to publish
their rates in tariffs filed with the Surface Transportation
Board (Board),4 and carriers are prohibited from charging or
receiving a different compensation for the transportation than
the rate specified in the tariff. 49 U.S.C. S 13702. The ICA
"requires carrier to collect and consignee to pay all lawful
charges duly prescribed by the tariff in respect of every ship-
ment. Their duty and obligation grow out of and depend upon
that act." Louisville & Nashville R.R. v. Rice, 247 U.S. 201,
202 (1918). The historical purpose of the ICA was "to achieve
uniformity in freight transportation charges, and thereby to
eliminate the discrimination and favoritism that had plagued
the railroad industry in the late 19th century." Southern Pac.
Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 344
(1982) (citations omitted). Although there is no charge of dis-
crimination or favoritism in this case, there is federal jurisdic-
tion because any action between carriers and shippers arising
from the filed rate presents a federal question supporting
jurisdiction under 28 U.S.C. S 1337. See Thurston Motor
Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983).
B. Validity of the Waivers in Allocating Liability for the
Freight Charges
CAR argues that the district court erred in granting sum-
mary judgment and holding that the ICA does not bar the par-
ties' allocation of liability for the freight charges through use
of the waivers and that the Carriers' drivers had ostensible
authority to sign the waivers. In CAR's view, the provisions
of the bills of lading used for the transportation of the shrimp
either confer absolute liability on Appellees for the freight
charges or are in conflict with the provisions of the waivers,
thus producing ambiguity in the contract for transportation
that should be interpreted in favor of CAR as the nondrafting
party. CAR also argues that the drivers did not have ostensi-
ble authority to sign the waivers because the Carriers did not
know about the waivers and did not explicitly make represen-
tations to Appellees concerning the scope of the drivers'
authority. The district court's grant of summary judgment is
reviewed de novo. See Sameena Inc. v. United States Air
Force, 147 F.3d 1148, 1151 (9th Cir. 1998).
1. Bill of Lading Issue
[2] The Board requires the issuance of a receipt or bill of
lading containing certain information for all interstate or for-
eign shipments by motor carrier. See 49 C.F.R. S 373.101.
Although motor carriers are not required to use the Uniform
Straight Bill of Lading prescribed for rail and water common
carriers, see 49 C.F.R. S 1035.1(a), the parties here have
adapted it for their purposes, see 49 C.F.R.S 1035 apps. A &
B. "The bill of lading is the basic transportation contract
between the shipper-consignor and the carrier; its terms and
conditions bind the shipper and all connecting carriers." See
Southern Pac., 456 U.S. at 342 (citation omitted).5 The bill of
lading provides that the owner or consignee shall pay the
freight and all other lawful charges upon the transported prop-
erty and that the consignor remains liable to the carrier for all
lawful charges.6 See Illinois Steel Co. v. Baltimore & Ohio
R.R., 320 U.S. 508, 512 -13 (1944). The bill of lading, how-
ever, also contains "nonrecourse" and "prepaid" provisions
that, if marked by the parties, release the consignor and con-
signee from liability for the freight charges. If the nonrecourse
clause is signed by the consignor and no provision is made for
the payment of freight, delivery of the shipment to the con-
signee relieves the consignor of liability. See id. at 513. Simi-
larly, when the prepaid provision on the bill of lading has
been marked and the consignee has already paid its bill to the
consignor, the consignee is not liable to the carrier for pay-
ment of the freight charges. See Missouri Pac. R.R. Co. v.
National Milling Co., 409 F.2d 882, 883-84 (3d Cir. 1969); In
re Penn-Dixie Steel Corp., 6 B.R. 817, 822 (Bankr. S.D.N.Y.
1980), aff'd 10 B.R. 878 (S.D.N.Y. 1981).
[3] Although the bill of lading contains default terms allo-
cating liability for freight charges, the Supreme Court's
description of the bill of lading as "the basic transportation
contract between the shipper-consignor and the carrier,"
Southern Pacific, 456 U.S. at 342, "did not purport to charac-
terize the bill of lading as the exclusive means of creating a
contract." A-Transport Northwest Co. v. United States, 36
F.3d 1576, 1583 (Fed. Cir. 1994). Subject to the rule that pro-
hibits discrimination, the parties are free to contract when or
by whom the freight charges should be paid. See Louisville &
Nashville R.R. v. Central Iron & Coal Co., 265 U.S. 59, 66
(1924); Illinois Steel Co. v. Baltimore & Ohio R.R., 320 U.S.
508, 512 (1944). It is only where the parties fail to agree or
where discriminatory practices are present that the ICA's
default terms bind the parties. See In re Roll Form Products,
Inc., 662 F.2d 150, 154 (2d Cir. 1981). In the face of other
provisions, the liability allocation presumptions on the bill of
lading are unnecessary. See Fikse & Co. v. United States, 23
Cl. Ct. 200, 204 (1991).
[4] Clearly, the ICA's purpose of eliminating all forms of
rate discrimination on interstate shipments is not implicated in
this case. There is no allegation that the freight terms agreed
to by the parties improperly deviate from filed common car-
rier tariffs or discriminate. Because an external contract,
entered into by the Carriers, lawfully allocated liability for the
freight charges, resort to the allocation presumptions on the
bill of lading is unnecessary. The waivers signed by the driv-
ers lawfully operated to waive the Carriers' rights against
Appellees for the freight charges.
2. Authority of the Carriers' Drivers
[5] California law controls the issue of whether the Carri-
ers' drivers had ostensible authority7 to sign the waivers. See
Mallot & Peterson v. Director, Office of Workers' Comp.
Programs, 98 F.3d 1170, 1173 n.2 (9th Cir. 1996). An agent
acting within his apparent or ostensible authority binds the
principal where the principal has intentionally or negligently
allowed others to believe the agent has authority. See Kaplan
v. Coldwell Banker Residential Affiliates, Inc., 69 Cal. Rptr.
2d 640, 642-43 (Ct. App. 1998). Section 2317 of the Civil
Code of California provides that "[o]stensible authority is
such as a principal, intentionally or by want of ordinary care,
causes or allows a third person to believe the agent to pos-
sess." Cal. Civ. Code S 2317.
An agent's authority may be implied from the circum-
stances of a particular case and may be proved by circumstan-
tial evidence. Kelley v. R.F. Jones Co., 77 Cal. Rptr. 170, 174
(Ct. App. 1969). However, unless only one conclusion may be
drawn, existence of an agency and the extent of an agent's
authority is a question of fact and should not be decided on
summary judgment. See American Cas. Co. v. Krieger, 181
F.3d 1113, 1121 (9th Cir. 1999).
[6] Contrary to CAR's claims, to establish ostensible
authority, the principal's consent need not be express. See
Tomerlin v. Canadian Indem. Co., 394 P.2d 571, 575 (Cal.
1964). While it is true that the ostensible authority of an agent
cannot be based solely upon the agent's conduct, see Kaplan,
69 Cal. Rptr. 2d at 643, it is not true that the principal must
make explicit representations regarding the agent's authority
to the third party before ostensible authority can be found. For
example, ostensible authority may be proven through evi-
dence of the principal transacting business solely through the
agent, see Kelley, 77 Cal. Rptr. at 174, the principal knowing
that the agent holds himself out as clothed with certain author-
ity but remaining silent, see Krieger, 181 F.3d at 1121, the
principal's representations to the public in general, see
Kaplan, 69 Cal. Rptr. 2d at 643, and the customs and usages
of the particular trade in question, see Correa v. Quality
Motor Co., 257 P.2d 738, 741 (Cal. Dist. Ct. App. 1953);
Auto Auction, Inc. v. Riding Motors, 10 Cal. Rptr. 110, 113-
14 (Ct. App. 1960) (finding that a car salesman had ostensible
authority to close an automobile sale based on the circum-
stances of the case "as well as in the light of the customs and
usages of the particular trade of which we may take judicial
notice").
Appellees had the burden of proving the authority of the
Carriers' drivers to sign the waivers. See Inglewood Teachers
Ass'n v. Public Employment Relations Bd., 278 Cal. Rptr.
228, 234 (Ct. App. 1991)(stating that the burden "rests upon
the party asserting the existence of the agency and seeking to
charge the principal with the representation of the agent").
When the party moving for summary judgment would bear
the burden of proof at trial, "it must come forward with evi-
dence which would entitle it to a directed verdict if the evi-
dence went uncontroverted at trial." Houghton v. South, 965
F.2d 1532, 1536 (9th Cir. 1992)(citation and quotations omit-
ted). In such a case, the moving party has the initial burden
of establishing the absence of a genuine issue of fact on each
issue material to its case. See id. at 1537. Once the moving
party comes forward with sufficient evidence, "the burden
then moves to the opposing party, who must present signifi-
cant probative evidence tending to support its claim or
defense." Intel Corp. v. Hartford Accident & Indem. Co., 952
F.2d 1551, 1558 (9th Cir. 1991)(citation omitted)."A motion
for summary judgment may not be defeated, however, by evi-
dence that is `merely colorable' or `is not significantly proba-
tive.' " Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50
(1986)).
The district court found that the drivers had ostensible
authority to sign the waivers based on the following factors:
1) the drivers executed all contractual documents on behalf of
the Carriers governing the transport of the shrimp, including
the bills of lading; 2) there is no evidence that anything placed
Trans-Pac on notice that the drivers lacked authority to exe-
cute waivers for the Carriers; 3) the drivers were the only rep-
resentatives of the Carriers with whom Trans-Pac dealt; 4)
Trans-Pac did not even know the identity of the company that
was going to haul a particular shipment until the driver
arrived to transport it; and 5) the declaration of Frank DiGen-
naro, Trans-Pac's shipping manager, states that carriers' truck
drivers routinely bind their principals to waiver agreements,
agreements regarding liability for loss or damage to goods
shipped, and other such provisions. In addition, the waiver
executed on behalf of Don Senske Trucking, Inc. was signed
by Don Senske himself and the district court found that
because the business beared his name, he was vested with
apparent authority.
Clearly, Appellees came forward with sufficient evidence
of ostensible authority to entitle them to a directed verdict if
the evidence went uncontroverted at trial. To counter the evi-
dence that Appellees produced, CAR merely offered the dec-
laration of its General Manager, Clifford Riggins, who
asserted that he has spent forty years in the trucking industry
and is "not aware of any law that says a truck driver can bind
his trucking company as to a waiver of its claims for transpor-
tation charges as a common carrier under federal law." The
district court found that Riggins's declaration did not raise a
question of fact concerning the drivers' apparent authority to
waive the Carriers' claim for freight charges against Appel-
lees. The district court reasoned that CAR failed to raise any
material question of fact because the Riggins declaration
addressed the issue of whether a specific law authorizes driv-
ers to sign waivers on their carriers' behalf; an issue that is
obviously irrelevant to whether industry custom and practice
vests drivers with apparent authority to bind their carriers to
terms in bills of lading and waivers of the right to collect
freight charges from consignors and consignees.
[7] We agree with the district court that CAR's supposed
evidence refuting Appellees' showing of the drivers' ostensi-
ble authority did not set forth specific facts showing that there
is a genuine issue for trial. Riggins's affidavit, the only evi-
dence that CAR submitted, is simply not significantly proba-
tive evidence sufficient to defeat Appellees' motion for
summary judgment.
III. CONCLUSION
In sum, we affirm the district court's judgment that the par-
ties lawfully allocated liability for the freight charges through
the "Waiver of Subcontractor" forms and that the Carriers'
drivers had ostensible authority to sign the waivers.
_______________________________________________________________
FOOTNOTES
*Honorable Frank Magill, Senior United States Circuit Judge for the
Eighth Circuit, sitting by designation.
1 A "broker" is a person "other than a motor carrier or an employee or
agent of a motor carrier, that as a principal or agent sells, offers for sale,
negotiates for, or holds itself out by solicitation, advertisement, or other-
wise as selling, providing, or arranging for, transportation by motor carrier
for compensation." 49 U.S.C. S 13102(2).
2 Each "Waiver of Claim by Subcontractor" reads:
The undersigned motor carrier acknowledges and agrees that:
1. It is providing contract carriage services to[Trans-Pac] and/
or [Trans-Pac's] customer as a subcontractor for another motor
carrier or broker;
2. [Trans-Pac] and [Trans Pac's] customer have made no agree-
ment, express or implied, to pay the undersigned for such ser-
vices; 3. The Undersigned will not seek payment from[Trans-Pac] or
[Trans-Pac's] customer for such services; and
4. To the extent the Undersigned is determined to have any
legal right to such payment from [Trans-Pac] or [Trans-Pac's]
customer, the Undersigned hereby waives such claim.
3 Section 13706 states:
(a) Liability of consignee.--Liability for payment of rates for
transportation for a shipment of property by a shipper or con-
signor to a consignee other than the shipper or consignor, is
determined under this section when the transportation is provided
by motor carrier under this part. When the shipper or consignor
instructs the carrier transporting the property to deliver it to a
consignee that is an agent only, not having beneficial title to the
property, the consignee is liable for rates billed at the time of
delivery for which the consignee is otherwise liable, but not for
additional rates that may be found to be due after delivery if the
consignee gives written notice to the delivering carrier before
delivery of the property. . . .
(b) Liability of beneficial owner.--When the consignee is liable
only for rates billed at the time of delivery under subsection (a),
the shipper or consignor, or, if the property is reconsigned or
diverted, the beneficial owner is liable for those additional rates
regardless of the bill of lading or contract under which the prop-
erty was transported. The beneficial owner is liable for all rates when the property is reconsigned or diverted by an agent but is
refused or abandoned at its ultimate destination if the agent gave
the carrier in the reconsignment or diversion order a notice of
agency and the name and address of the beneficial owner. A con-
signee giving the carrier erroneous information about the identity
of the beneficial owner of the property is liable for the additional
rates.
4 The ICC Termination Act of 1995, Pub.L.No. 104-88, 109 Stat. 803
(1995), transferred the motor carrier regulatory functions of the Interstate
Commerce Commission to the Department of Transportation and the Sur-
face Transportation Board. See 49 U.S.C.S 13501.
5 A bill of lading serves three distinct functions: "First a receipt for the
goods; second, a contract for their carriage; and, third, documentary evi-
dence of title to the goods." In re Chateaugay Corp., 78 B.R. 713, 717
(Bankr. S.D.N.Y. 1987) (citation omitted).
6 Section 7 of the bill of lading provides in pertinent part: "The owner
or consignee shall pay the freight and average, if any, and all other lawful
charges accruing on said property according to lawfully filed tariffs of the
carrier . . . . The consignor shall be liable for the freight and all other law-
ful charges . . . ."7 Contrary to CAR's claim that the district court erred in using the terms
apparent authority and ostensible authority interchangeably, "[m]any
courts use the terms ostensible agency, apparent agency, apparent author-
ity, and agency by estoppel interchangeably. As a practical matter, there
is no distinction among them." Armato v. Baden, 84 Cal. Rptr. 2d 294, 301
n.4 (Ct. App. 1999)(citation omitted).