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115 C. Cls. Opinion of the Court must assume that the contracting officers for the United States drove as provident a bargain as a reading of the
agreement fairly permits. In Southern Pacific Co. v. United States, supra, the court held that the Government was entitled under the land-grant act, in computing the compensation due the land-grant carrier, to use the lower tariff rate available on a route which was in part non-land-grant and the higher land-grant percentage deduction applicable to the original land-grant route, irrespective of which route was used in shipment, and in that connection said, at p. 401 :
It is urged, however, that in this instance we have a new line, an addition, rather than a cut-off in or a shortening or straightening of an original line. So far as terminal-to-terminal transportation is concerned, the Cascade Route does not function as a new line or an addition. It is simply another way of carrying goods by the same railroad between San Francisco and Portland. By which route the shipment moves, is immaterial on the question of deduction for land-grants. The conclusion that the lowest public tariffs are to have land-grant deductions based upon the proportion of the land-grant mileage in the original line, seems consonant with the
purpose of the acts. Since the main objective of the Equalization Agreement was to give the Government, in shipment of property over the lines of an equalization carrier, the benefit of the reduced rates available to it over a land-grant carrier between the same points, we are of the opinion that the decision of the court in the Southern Pacific case is applicable here. We cannot, therefore, sustain plaintiff's claim that the phrase "the lowest net rates lawfully available, as derived through deductions account of land-grant distance from lawful rates filed
means, in a case such as this, the landgrant distance, or mileage, in the particular route having the lowest tariff rate.
Plaintiff is not entitled to recover and its petition is dismissed. It is so ordered.
HOWELL, Judge; MADDEN, Judge; and WHITAKER, Judge, concur.
JONES, Chief Judge, dissents.
Roporter's Statement of the Caso
C. C. M. PEDERSEN V. THE UNITED STATES
[No. 48406. Decided January 3, 1950: Plaintiff's motion for new trial
overruled February 6, 1950]
On the Proof 8
Suit by Foreign Service official for per diem expenses caused by delay
in obtaining transportation during time of war.-In a suit by an employee of the State Department who claims per diem allowances for himself and wife while delayed in Egypt en route from Turkey to the United States during the spring of 1945, where the wife refused to accept ship passage without her two dogs and a cat, it is held that under the departmental regulations plaintiff is entitled to a per diem for himself and his wife only "during the time necessarily spent at ports awaiting sailing".
Recovery is allowed for 45 days per diem at $10 per day, $450. United States On 39 (2) Same.-Upon the evidence it is found that plaintiff necessarily waited
at Cairo for a period of fifteen days, after which time he could probably have secured passage on a transport had he been willing to travel alone, and he is entitled to per diem for that period. At a later time be accepted transportation by air,
travelling alone. United States 39 (4) Same; delay caused by refusal of plaintiff's wife to travel without her
dogs and cat.-Where plaintiff's wife refused to accept transportation without her pets, and where because of wartime restrictions she could not travel by air, and where transportation by boat was difficult to obtain under any conditions, especially when accompanied by pets; it is held that there is no legal basis for charging the Government $10 a day for the extra delay caused by her attitude, especially in a time of national peril, when family separations were the rule and not the excep
tion, however appealing her sentiment may have been. United States Om 39 (2) Same. While the testimony is not clear as to the time plaintiff's wife
would have been compelled to wait had she not refused to travel without her pets, from the record as a whole it is found that
such period was thirty days and recovery is allowed on that basis. United States 39 (4)
The Reporter's statement of the case:
Mr. Paris T. Houston, with whom was Mr. Assistant Attorney General H. G. Morison, for defendant.
115 C. Cls. Reporter's Statement of the Case The court made special findings of fact as follows:
1. The plaintiff was an employee in the Department of State, Foreign Service, Ankara, Turkey, when, pursuant to a tender of resignation, he relinquished his duties at Ankara March 1, 1945, and in accordance with travel orders proceeded therefrom and at that date with his wife to the United States by way of Egypt.
The plaintiff and his wife arrived at Cairo March 12, 1945, went directly from the railway station to the American Embassy and there made an appointment to see Mr. Ralph Miller, American Consul at Cairo, that evening, for the purpose of arranging for and securing transportation from Cairo to the United States. The American Consul was in charge of transportation priorities within his territory and the plaintiff was dependent upon the consul for travel accommodations. The consul informed the plaintiff, at the appointed interview, that no transportation, by air or by water, was immediately available, and told the plaintiff to come back in ten days.
The plaintiff contacted the consul more frequently than in ten-day intervals, and there was no want of diligence upon the part of the plaintiff, nor on the part of the plaintiff's wife, after plaintiff's departure from Cairo, in efforts to secure transportation to the United States.
2. The plaintiff informed the consul that he desired to return with his wife, and that his wife desired to take with her two dogs and a cat, which were pets and came with her on her departure from Ankara.
Transportation by steamship was confined to irregular sailings by freighters and space for passengers thereon was limited.
Transportation by air was possible only for the plaintiff, not for his wife, due to wartime restrictions.
The same restriction applied to Army Transports.
Finally, the Vice Consul at Cairo informed plaintiff, May 9, 1945, that he thought transportation by air could be secured if the plaintiff was willing to leave his wife in Cairo. The plaintiff immediately consulted his wife on the situation, and left by air May 14, 1945.
3. Mrs. Pedersen thereafter kept in touch with the con
Reporter's Statement of the Case sular officer in Cairo for the purpose of securing transportation to the United States. Travel by boat was the only way she could go, and the only boats physically available were freight vessels flying the American flag, and sailing on unpublished schedules. She was therefore dependent upon the American Consul at Cairo or at Port Said.
She had no success with the consulate at Cairo, after repeated efforts and protests, and sometime in June of 1945 left Cairo at her own expense and arrived at Port Said, where she continued her efforts with the consulate there to get transportation. She enlisted the aid of Cook's, in what way is not clear, and finally embarked at Port Said July 6, 1945, on the S. S. Steel Mariner, an American freight vessel.
4. The consul told Mr. Pedersen that at that particular time the sea captains were reluctant to allow animal pets to be taken on board ship; that there was no regular passenger service and such ships as were in operation were extremely crowded.
The consul had control of transportation priorities aboard sea-going vessels but the question of whether or not animals should be taken on board ship was within the exclusive jurisdiction of the master of the vessel.
The consul did not offer any specific transportation on account of the fact that plaintiff was patently awaiting such time as they could all travel together.
5. The regulations of the Department of State, effective at the time here involved, provided for the payment to an employee "during time necessarily spent at ports awaiting sailing," a per diem, both for himself and members of his family, and payment of this per diem to the plaintiff was specifically authorized by the Department of State January 26, 1945, in anticipation of his return to the United States from Turkey.
Neither the plaintiff nor his wife were, under the effective regulations, obliged to travel by air.
If plaintiff had been willing to travel alone, he could have secured passage in about 15 days. If his wife had been willing to travel without her pets, she could have secured sailing accommodations in about 30 days.
6. The time necessarily spent at ports by plaintiff and his wife was 45 days.
115 C. Cls. Opinion of the Court 7. After arrival in the United States the plaintiff in due course submitted to the appropriate officials of the defendant his claim for per diem accrued at Cairo and Port Said, on account of himself and wife.
For himself the per diem so claimed amounted to $630, and for his wife $1,112, a total of $1,742. This claim the defendant denied and refused to pay.
The court decided that the plaintiff was entitled to recover.
This is a suit by an employee of the State Department who claims per diem allowances for himself and wife, while delayed in Egypt en route from Turkey to the United States during the spring of 1945. Under the regulations plaintiff is entitled to a per diem for himself and his wife "during the time necessarily spent at ports awaiting sailing."
The issue turns on how much of the delay was necessarily spent in awaiting transportation, and how much of the delay, if any, was due to Mr. Pedersen's reluctance to travel without his wife and to Mrs. Pedersen's refusal to travel without being accompanied by her pets, two dogs and a cat, which she refused to leave behind.
The plaintiff claims that none of the delay was caused by the animals, while the defendant claims that all but a few days of the delay was thus caused.
We can well understand Mrs. Pedersen's anxiety about her pets and her reluctance to travel without them.
In our youth we always had dogs, mostly of the mongrel variety, but nevertheless dogs. We placed them just behind people, and when on rare occasions we fell out with any of our playmates, our hounds usually forged ahead.
We have very little respect and no affection for anyone who has not at some time in his life loved a dog. Throughout history the dog has been known for his loyalty and faithfulness. He has been celebrated in song and story. Even books have been written about the dog, his character, intelligence and attributes. The dog has been able to awaken affection in the hearts of every race of people. Wherever man has gone, on the frontier, in the great woods, in the frozen north, the faithful dog has been his constant companion, sharing