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Opinion of the Court
150 Ct. ClI.
the Interstate Commerce Act, 49 U.S.C. § 22) quotation covers the transcontinental shipment for export of Government owned and shipped items, i.e., landing mats, at special rates, the general rate increase applicable to landing mats is applicable to such section 22 quotation shipments rather than the lower maximum rate increase applicable to manufactured iron and steel, despite the fact that the section 22 quotation rate for transcontinentally shipped landing mats happened to be the same as a manufactured iron and steel rate which never went into effect.
Carriers; carriage of goods; section 22 quotation; transportation for the Government; port service charges.-Where a section 22 (49 U.S.C. § 22) quotation provides for the payment of a port service charge for certain port services which were actually rendered, the charge was properly made.
Carriers; carriage of goods; section 22 quotation; transportation for the Government; items not covered.-Where a section 22 quotation (49 U.S.C. § 22) covers only transcontinental shipments for export but does contemplate that short hauls for export will fall under other appropriate published tariffs, the applicable tariff which is specified for export must be applied rather than the higher tariff for domestic shipments.
Mr. Raymond A. Negus for the plaintiff. Messrs. Lawrence Cake and John Guandolo were on the brief.
Mr. Lewis A. Dille, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant.
JONES, Chief Judge, delivered the opinion of the court: The plaintiff is suing for the recovery of certain amounts alleged to have been wrongfully withheld by the United States on bills of lading for material shipped to Pacific Coast ports at various times between 1942 and 1951.
In 1951, plaintiff sued in this court on its claim that the Government owed transportation charges for the shipment of aircraft landing mats during the period from 1942 to 1945. We suspended proceedings in that action on defendant's motion pending the decision of the Interstate Commerce Commission in the War Materials Reparations Cases, 294 I.C.C. 5. In those cases, inter alia, the United States claimed that the rates charged during and after World War
Opinion of the Court
II by the railroads for the transportation of landing mats similar to those in the suit then pending in this court were unjust and unreasonable (Docket No. 29805, 294 I.C.C. 82). The Commission's final report on that phase of the War Materials Reparations Cases contained the finding that the rates charged the Government for the transportation of the steel landing mats were applicable and had not been shown to have been unjust or unreasonable.
The Government then answered Western Pacific's petition, which answer was later amended. In opposing plaintiff's motion for summary judgment, the defendant, in substance, challenged the ICC determination and urged on us new evidence in an attempt to persuade us that the determination was erroneous in that it rejected the Government's theory of the applicable rate. We held against the defendant and granted summary judgment for Western Pacific.1
We pointed out that the ICC has wide experience in the area of transportation rates and is well qualified to handle such problems. We said that this court would not reach any result contrary to the Commission, unless the circumstances were very unusual. Since, in the case before us then, the question of proper classification had been raised by the Government and thoroughly considered by the Commission, we did not see fit to upset the determination.
As a result of our reliance on the expertise of the ICC in determining the reasonableness and applicability of rail freight rates in the War Materials Reparations Cases, most of the litigation relating to aircraft landing mats then pending before the court was settled. However, in the course of auditing the various bills of lading for the purpose of settling them, the General Accounting Office uncovered some which it felt presented issues not previously treated by this court or the ICC. The Government concluded that Western Pacific had been overpaid on certain of the shipments and withheld moneys from current payments. That action resulted in the filing of this suit.
The claims in this action can be divided into four separate groups, which will be referred to as Groups I, II, III, and IV. Each of the bills sued on can be placed in one or
1137 Ct. Cl. 394 (1957).
Opinion of the Court
150 Ct. Cl.
another of these groups. There is no dispute as to the bills comprising Group I. The parties have agreed that the plaintiff is entitled to recover $35,543.99 for that part of the total claim. The respective amounts due under the plaintiff's theory of the case on Groups II, III, and IV are $73,076.95, $2,172.64, and $7,329.46; under the defendant's theory of the case, they are $45,546.84, $1,930.47, and $1,690.62. It has been agreed that there is no money due defendant under a counterclaim originally asserted by it.
The question with respect to Group II is whether the general rate increase on airfield landing mats or the maximum rate increase on manufactured iron and steel articles should apply. This, in turn, depends on the meaning and effect of the quotation under which the materials were moved.
The question with respect to Group III is whether plaintiff is entitled to the 5 cents per 100-pound port service charge which was a part of the quotation for a certain period. And as to Group IV, the question is which of two tariffs is applicable to shipments which moved from Ogden, Utah, to Oakland, California, for export.
Facts relative to Groups II and III
Negotiations with respect to the transportation of aircraft landing mats by the nation's railroads may be traced back to October 1941. At that time, a representative of the Office of the Quartermaster General of the War Department informed the Association of American Railroads (A.A.R.) that a shipment of airplane landing material had been moved from New Jersey to North Carolina, and the War Department suggested that the material might qualify for a rate lower than that at which it had been shipped. The A.A.R. notified the War Department that the railroads had decided to protect the manufactured iron and steel rate on the material and it suggested an appropriate commodity description which appeared in a then current tariff under which the shipment might be rated. The A.A.R. did not feel that it was necessary to offer the Government a quotation of the
2 The Association of American Railroads was empowered to publish tariffs and make quotations to the Government on behalf of its member railroads, one of which is the plaintiff.
Opinion of the Court
type authorized by 49 U.S.C. § 22 (1958) in order to protect the manufactured iron and steel rate.
Late in 1942, the War Department advised the A.A.R. that it anticipated making substantial shipments of aircraft landing mats and that it had some reservations as to whether they would be covered by existing tariff descriptions.
Classification ratings were later published on “iron and steel landing mats or runways, airfield, loose or in packages.' In January 1943, the A.A.R. informed the War Department that it had been authorized to offer the Government a Section 22 quotation on landing mats, and negotiations on such a quotation then began. Quotation No. 64-A, which resulted from the exchange of views, was acknowledged by the War Department and accepted by the Navy in March and April 1943, the charges to be retroactive to February 25, 1943. Entitled "Iron and Steel Landing Mats or Runways for Airfields", the quotation specified that the rates on other than transcontinental traffic would be those applicable to general manufactured iron and steel articles (Item 2(a), Quotation No. 64-A). It set forth a table of rates from various points in the United States on transcontinental shipments for export (Item 2(b)). The quotation also provided for a port service charge of 5 cents per 100 pounds on Pacific Coast export shipments.
The schedule of transcontinental rates in Item 2(b) was the same as the rates on manufactured iron and steel articles for export previously published in Supplement No. 24, Transcontinental Freight Bureau (T.C.F.B.) Tariff No. 29-E. That tariff had been suspended and was later ordered canceled by the ICC. Because of these actions, that tariff never became effective. The rates on manufactured iron and steel articles then actually in effect pursuant to Item 1350 of T.C.F.B. Tariff No. 29 were less than the rates offered to the Government under Section 22 Quotation No. 64-A.
In May 1945, the War Department requested that Section 22 Quotation No. 64-A be revised to conform to the lower rates appearing in Item 1350, T.C.F.B. Tariff No. 29. It
* Quotations pursuant to 49 U.S.C. § 22 are known as "Section 22" quotations. That section of the Interstate Commerce Act permits the carriers to offer lower rates to the Federal, state and local governments than they would be permitted to offer to the public in competition with other carriers.
Opinion of the Court
150 Ct. CL
also requested the elimination of the 5-cent port service charge on the ground that the carriers were not actually performing any service to justify it.
Amendment No. 8 to Quotation No. 64-A was offered, making the lower rates available to the Government. However, that amendment had not been authorized, and on December 3, 1945, Section 22 Quotation No. 64-B was issued effective retroactively to February 25, 1943. That quotation eliminated the 5-cent port service charge on all shipments originating after May 26, 1945. The transcontinental export rates provided for in Item 2(b) of Quotation No. 64-B were the same as the transcontinental export rates provided for in Item 2(b) of Quotation No. 64–A.
Amendment No. 2 to Item 2, Quotation No. 64-B made the rates in subparagraph (b) subject to Ex Parte Tariffs Nos. X-148 and X-162. Amendment No. 3 to Item 2 made subparagraph (b) subject to Ex Parte Tariff No. X-166. Tariffs of the X-162 and X-166 series provided for limited maximum increases on manufactured iron and steel articles and specified general rate increases for other commodity groups which included, among other items, "mats, landing airfield, iron or steel.”
The foregoing factual material pertaining to the claims in Groups II and III is set forth with greater specificity in findings 8 through 30 of the trial commissioner's report.
Discussion of Groups II and III
As to the bills contained in Group II, the defendant's position in relation to the increases of Tariffs X-162 and X-166 is that the maximum rate increase on iron and steel articles is applicable rather than the general increase for an article or commodity which is specifically indexed. It seeks to support this position by looking to the history of the transcontinental export rates of Item 2(b), Quotation No. 64-B which, it claims, shows that manufactured iron and steel rates were intended. The Government says, in sum, that the 64-series quotations embody rates for iron and steel articles rather than for a specific commodity and that the landing mats should be viewed as manufactured iron and steel