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Reporter's Statement of the Case the payments made on account of said transportation services and the transportation charges properly computed via the lines of the Southern Pacific Company through Fernley and Wadsworth, Nevada, and Alturas, California, with deduction for land-grant as to said carrier limited to cover only the actual land-grant mileage physically incorporated in the route of the carrier through Fernley, Nevada, Alturas, California, and Klamath Falls and Eugene, Oregon, provided that the transportation charges so computed are not in excess of those computed on the basis of any other net land-grant rate lawfully available.

13. The claims asserted in the petition on account of bills F-144959 and F-152212 are withdrawn by the plaintiff.

14. On plaintiff's bills which were originally paid as rendered and on which the payments so made were later reduced (by post-audit disallowances and deductions from other bills), in those instances where such deductions were made more than two years, but not more than six years, prior to the filing of the petition herein, the amount of the differences between the net rates claimed by plaintiff and the net rates paid by the defendant, as stated in findings 10, 11, and 12 herein, is $6,904.94.

15. On plaintiff's bills which were originally paid as rendered and on which the payments so made were later reduced (by post-audit disallowances and deductions from other bills)-in those instances where such deductions were made within two years prior to the filing of the petition herein, the amount of the differences between the net rates claimed by plaintiff and the net rates paid by the defendant, as stated in findings 10, 11, and 12 herein, is $4,481.35.

16. On plaintiff's bills which were reduced at the time of original payment to the basis stated in finding 10, the amount of the differences between the net rates claimed by plaintiff and the net rates paid by defendant, as above stated, is $5,644.44. With respect to all such bills, the services for which the said bills were stated and the original disallowances which established the differences claimed by plaintiff were made more than two years, but not more than six years, prior to the filing of the petition herein.

115 C. Cls. Opinion of the Court 17. On bill F-103028, plaintiff claims charges amounting to $11,965.98 and has been paid $10,351.73, leaving a balance of $1,614.25 claimed by plaintiff. The services for which the said bill was stated were rendered, and the disallowances and deductions which established this difference, were made more than two years, but not more than six years, prior to the filing of the petition.

18. On bill F-135366, plaintiff claims charges amounting to $2,585.37 and has been paid $2,223.12, leaving a balance of $362.25, of which $330.59 was established by disallowances made at the time plaintiff's original bill was paid, more than two years, but not more than six years, prior to the filing of the petition herein, and $31.66 was refunded under protest by plaintiff on June 1, 1946.

19. On bill F-183782, plaintiff claims charges amounting to $341.32 and has been paid $299.65. On bill F-190683, plaintiff claims charges amounting to $78.46 and has been paid $70.20. The disallowances and differences of $21.61 and $8.26 claimed by plaintiff on these bills, respectively, were made on the said bills as originally stated and there were no deductions from later bills. The services for which the said bills were stated were rendered more than two years, but not more than six years, prior to the filing of the petition herein.

20. On bill F-124047, plaintiff claims charges amounting to $2,252.30 and has been paid $1,064.62, leaving a balance claimed by plaintiff of $1,187.68. The disallowances which established this difference were made on plaintiff's original bill and supplemental bill and there were no deductions from later bills. The services for which the said bills were stated were rendered more than two years, but not more than six years, prior to the filing of the petition herein.

The court decided that the plaintiff was not entitled to

recover.

LITTLETON, Judge, delivered the opinion of the court:

Plaintiff sues to recover higher freight rates than were paid by defendant, on the basis of land-grant deductions made by the Government, for the transportation over its lines of certain Government property between Ogden, Utah (or points east of Ogden), and Portland, Oregon (or points

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Opinion of the Court west of Portland), during the period August 3, 1940, to August 28, 1942. Plaintiff is not a land-grant railroad but on November 17, 1939, it and the defendant entered into a Freight Land-Grant Equalization Agreement by which the plaintiff and other carriers agreed “to accept for the transportation of property shipped for account of the Government of the United States and for which the Government of the United States is lawfully entitled to reduced rates over land-grant roads, the lowest net rates lawfully available, as derived through deductions account of land-grant distance from lawful rates filed with the Interstate Commerce Commission or the various State commissions applying from points of origin to destination at time of movement.”

The facts are not in dispute. The only question presented is whether the method used by plaintiff in constructing the lowest net land-grant rates lawfully available to the Government, or the method used by defendant in constructing such rates, is correct under the Equalization Agreement.

For the transportation services involved herein plaintiff computes the amount alleged to be due it on the basis of net land-grant rates constructed by making land-grant deductions from the applicable tariff rates via the Southern Pacific Company from Ogden, Utah, through Fernley and Wadsworth, Nevada, Alturas, California, and Klamath Falls, Springfield, and Eugene, Oregon. In constructing these land-grant rates for the various shipments via the Alturas route, plaintiff made deductions for land-grant from the Southern Pacific Company's proportion of the through tariff rate on the basis of the actual land-grant mileage (126.14 miles between Eugene and Portland, Ore.) physically incorporated in the line of the Southern Pacific through Fernley, Wadsworth, and Alturas. The land-grant deduction based on the percentage of land-grant mileage in this route was 5.715%.

With respect to all shipments now in issue the net rates used by defendant in making payment on plaintiff's bills were constructed by using the lawfully published gross tariff rate which applied over the lines of the Southern Pacific Company from Ogden, Utah, through Fernley and Wadsworth, Nevada, Alturas, California, and Klamath

115 C. Cis.

Opinion of the Court Falls, Springfield, and Eugene, Oregon, to Portland, with land-grant deductions based upon the percentage (24.807%) of land-grant mileage (663.16 miles) between Ogden, Utah, and Portland, Oregon, via the route of the Southern Pacific Company through Fernley, Nevada, Roseville, California, and Eugene, Oregon.

The gross rates used by defendant were lawfully available under the published tariffs between points in Utah and points in Oregon and Washington via Fernley and Wadsworth, Nevada, Alturas, California, and Klamath Falls and Springfield, Oregon.

The position taken by plaintiff is that if the Government uses the rates applicable via one route and restricted to that route, the percentage of land-grant deductions to be made from such gross tariff rates must be determined on the basis of the land-grant mileage in that same route. It contends that if the Government uses the rates restricted to the Fernley-Alturas route, it must also use the percentage of land-grant mileage in that same route in determining the land-grant deductions to be made in establishing the net rates, and, on the other hand, if the Government uses the higher percentage of land-grant mileage in the FernleyRoseville route for the purpose of determining the landgrant deductions, it must also use the combinations of local and other rates applicable via the Roseville route."

The land-grant and non-land-grant lines of the Southern Pacific Company here in question are shown on maps printed in Southern Pacific Co. v. United States, 307 U. S. 393, at pp. 403 and 404. Under the decision of the court in that case,

1 The throngh rates between Ogden and Portland used as gross rates by both the plaintiff and the General Accounting Office, are those quoted in the tariffs cited in finding 9. In each of those tariffs the application of the rate is shown to be via the Southern Pacific lines through Alturas. Each tariff contained the following provision :

The rates named in this tarif will apply only via the routes and junction points authorized herein, except that when in the case of pronounced traffic congestion (not an embargo), wash-out, wreck, or other similar emergency, or through carriers' error, carriers forward shipments via other junction points of the same carriers or via lines of other carriers parties to the tariff, the rate to apply will be that specified in this tariff, but not higher than the rate applicable via the

route of movement. The rates applicable under the tariffs between Ogden and Portland, via Roseville, were combinations of local and other rates.

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Opinion of the Court which involved shipments over the Southern Pacific in both directions from San Francisco to Portland, we are of opinion that plaintiff's contention cannot be sustained. We are here concerned with terminal-to-terminal transportation (Ogden, Utah, to Portland, Oregon). Under the terms of the Freight Land-Grant Equalization Agreement plaintiff agreed to accept for the transportation of Government property the same net rates which a land-grant carrier would be entitled to receive for such transportation service. In Southern Railway Company v. United States, 322 U. S. 72, 75, 76, the court held that the phrase "lowest net rates lawfully available" means "the lowest net rates which could have been obtained on the basis of tariffs on file with the Interstate Commerce Commission." The defendant used such rates in this case, and the evidence is not sufficient to show that the Equalization Agreement intended that the deduction for land-grant distance, in determining the lowest net rates lawfully available, should, in all cases, be limited to the percentage of land-grant mileage in the route having the lowest tariff rate. In the absence of an affirmative exception the rule applicable to a land-grant carrier must be applied to an equalization carrier. In the case of the Southern Railway Co. v. United States, supra, which involved the use by defendant of a circuitous and noncompetitive route for the purpose of obtaining the largest land-grant deduction, the court, at p. 76, said:

The land-grant route was chosen merely for the purpose of computing the rate. The fact that in a given case the shipment probably would not have moved over the land-grant route is immaterial. The United States was bargaining for low rates for the shipment of its property.

It did not in terms state that land-grant routes, though actually available, would not be used in computing the rate unless they would in fact have been convenient or practicable to use for the particular ship

ent The standard it prescribes is the "lowest net rates lawfully available. We may not resolve any ambiguities which may linger in that phrase against the United States. Cf. Southern Pacific Co. v. United States, supra, p. 401. We are not warranted in assuming that the United States was more generous to this carrier than the language of the contract requires. We

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