557 F.3d 504 (2009)
The contract provided that, after the railroad delivered coal to the utility, if the railroad was prevented by force majeure from reloading its empty cars with iron ore for a specified steel mill, the railroad could charge a higher rate applicable to shipments with no backhauling. The steel mill shut down and eventually closed for good, at which point the railroad began charging the higher rate. The utility contended that the railroad waived its right to the higher rate by not exercising the right when the steel mill first shut down, and that the railroad did not make a good faith effort to obtain backhauling of other commodities.
- The court held that the railroad was contractually entitled to charge the higher rate.
- The railroad's failure to immediately invoke its right to the higher rate did not waive the right, there was no detrimental reliance by the utility on the lack of prompt notice, and the utility enjoyed the benefit of the lower rate to which it was not contractually entitled.
- Further, the railroad's duty of good faith did not include a duty to explore the possibility of re-configuring its operations and obtaining railcars optimized to carry other shippers' commodities.
The order granting summary judgment to the railroad was affirmed.
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