1 Findings of Fact Defendant with permission of the court thereafter filed its counterclaim. 3. With respect to the shipments of jeeps covered by plaintiff's bill No. F-13764, plaintiff was the destination carrier to Stockton, California, the origin of shipment having been Wagon Works, Ohio. The parties have agreed that the lowest applicable rate for the movement to Stockton was the export rate to Stockton, without land-grant deductions, on the authority of AAR Section 22 Quotation No. 265-A Series, and that there remains a balance due plaintiff of $556.39 on plaintiff's bill No. F-13764. No issue remains as to these shipments. 4. With respect to the shipments of jeeps covered by plaintiff's bills Nos. F-14246 and F-14246-A, plaintiff was the inbound carrier to Lathrop, California, and the destination carrier therefrom to Oakland, California. These shipments had originated at Springfield, Illinois, were consigned to port terminals at Oakland, California, for export, turned over to plaintiff by its connecting carrier, and diverted to Lathrop, California, where they arrived between February 22 and 24, 1943. These jeeps were forwarded from Lathrop on March 9, 1943, and arrived and were unloaded at Oakland on March 15, 1943, and thereafter shipped overseas. The inbound shipments to Lathrop were made on Government bills of lading WQ-12416123, WQ-12416132, WQ12416133, WQ-12416137, WQ-12416138 and WQ-12416145, which stated Springfield, Illinois, as the origin, and Oakland, California, as the destination, and which showed an ODT block permit number and a diversion to Lathrop. The shipments from Lathrop to Oakland were on Government bills of lading WQ-9475803, WQ-9475804, WQ9475806, WQ-9475810, WQ-9475844 and WQ-9475867. Under the item of "Tariff Authority, to be filled in by general office rendering account," these bills each carry a handwritten notation: "Transit Chg 31⁄2¢ AAR Sec 22 Q No. 16." Lathrop was a holding and reconsigning point for Government traffic, with the privilege of storage in transit under AAR Section 22 Quotation 16. 5. With respect to plaintiff's bills No. F-14246 and F14246-A, plaintiff's position is that the lowest applicable Findings of Fact 144 C. Cls. rate for the movement to Lathrop, California, was the local domestic rate to Lathrop, with land-grant deductions, and the parties have agreed that on that basis there is a balance due the plaintiff of $1,204.78. The defendant's position, with respect to these same bills, is that the lowest applicable rate is the through export rate from point of origin to Oakland, without land-grant deductions, on the authority of Freight Tariff No. T-1-A and AAR Section 22 Quotation No. 265-A, and the parties have agreed that on that basis there is a balance due the plaintiff of $696.35. The parties have in effect agreed that plaintiff is due the sum of $1,204.78 unless the defendant's theory of the case should prevail, in which event plaintiff is due the sum of $696.35. 6. The defendant has previously taken an alternative position that the lowest applicable rate on the plaintiff's bills last above-mentioned, was the through export rate, with land-grant deductions, from point of origin to Oakland, on the authority of Freight Tariff No. T-1-A and TCFB Export Tariff 29 Series, and that on this basis there had been an overpayment by defendant in the sum of $1,055.36. The parties agreed at pretrial conference that the issue of applicability of TCFB Export Tariff 29 Series, with landgrant deductions, would be determined and controlled by the Court's decision in the case entitled Union Pacific Railroad Company v. United States, 132 C. Cls. 213. Pursuant to that decision defendant has consented to the dismissal of its counterclaim. 7. The parties agreed that the applicability and availability of the AAR Section 22 Quotation No. 16 was not an issue in this case. This quotation provides in pertinent part, as follows: Property of the United States moving on War or Navy Departments' Government bills of lading may be consigned (a) to control or storage points in the general direction of prospective ports, or (b) to such prospective ports in the first instance which because of emergency may be stopped enroute for storage, and such freight may be re-shipped from control or storage points by the Government within a period of two years from 1 Findings of Fact date of movement from original point of shipment to Continental United States or Canadian ports for transshipment by vessel, subject to the following conditions: 7. Where storage-in-transit arrangements are published in tariffs on file with the Interstate Commerce Commission which cover a transaction as described herein, the rules and charges thereof may be applied in preference to this quotation at the option of the Govern ment. 11. RATES AND CHARGES TO APPLY FROM ORIGINAL POINT OF SHIPMENT TO FINAL DESTINATION (PORT) IN CONTINENTAL UNITED STATES OR CANADA, UPON RESHIPMENT FROM STORAGE POINT. (E) Where transit tariffs lawfully on file with the Interstate Commerce Commission designate off-line or branch-line points as main-line points, the through rate applicable to the shipment via route of movement will be assessed without back-haul or out-of-line haul charge for the service performed in connection with such offline or branch-line movements, or where transit tariffs lawfully on file with the Interstate Commerce Commission permit stop-over or storage of any commodity at off-line or branch-line points to be treated as some other specifically named station, such basis will be applied in connection with this question. By letter dated January 14, 1943, plaintiff advised the Office of Chief of Transportation, Headquarters, Service of Supply, War Department, Washington, D. C., that the American Association of Railroads had requested plaintiff and others to advise the War Department concerning the extent to which "out-of-line" charges would be waived or equalized under paragraph 11 (E) of AAR Section 22 Quotation No. 16; that plaintiff designated Lathrop, California, among others, as a control withholding or reconsigning station, and specifically set forth the extent to which "back-haul or outof-line haul charges" would be waived at: LATHROP, CALIFORNIA On traffic moving from Trans-Continental origins as defined in T. C. F. B. Territorial Directories, Lathrop is intermediate via one or more routes to all Pacific Coast ports. Therefore, under Paragraph 11 (E) and Findings of Fact 144 C. Cls. tariff provision it is considered intermediate via all routes and is subject to storage in transit charge of 31⁄2¢ per 100 lbs., minimum $7.35 per car. 8. T. C. F. B. Export Tariff 29 Series in effect at the time of the shipments in issue, contained a provision in Note 5 to Item 320-D, Supplement 12, as follows: NOTE 5.-On carload traffic destined to points to which rates named herein apply, shipments are entitled to storage in transit privileges as authorized in Freight Tariff T-1, I. C. C. No. A-3435 of Agent L. E. Kipp. 9. Freight Tariff T-1-A was in effect at all times pertinent to the shipments in issue, and was entitled: STORAGE IN TRANSIT ON COMMERCIAL FREIGHT IN CARLOADS Originating at points in Continental United States or the Dominion of Canada when consigned to interior points in the United States and reshipped to ports in the United States for Trans-shipment by water to foreign countries and to Insular Possessions of the United States, also to Alaska by water or land, under and subject to the conditions prescribed by Section 502.42 of the Office of Defense Transportation General Order O. D. T. No. 16. It provided in Items 1, 2, 3, 8, 9 and 11, as follows: Item No. 1. APPLICATION OF TARIFF Freight, in carloads, originating at points in the Continental United States or the Dominion of Canada, when moving all-rail under commercial bills of lading, may be consigned to interior points (not ports of exportation) in the United States for the purpose of being there stored and subsequently shipped all-rail to ports in Continental United States for transshipment by water to Foreign Countries and to Insular Possessions of the United States, also to Alaska by water or land, under and subject to the conditions prescribed by Section 502.42 (Transportation of commercial freight; unit permits required) of the Office of Defense Transportation General Order O. D. T. No. 16, issued July 6, 1942, and effective August 1, 1942 (see Item No. 14) when such reshipments are covered by O. D. T. unit permit issued by the War Shipping Administration, or by the Transport Controller of the Dominion of Canada as the case 1 Findings of Fact may be, on basis of through rate applicable from original point of shipment to the port of exportation in effect via route of movement through the transit or storage point, at time of initial shipment from point of origin, plus the transit charge, subject to rules and conditions shown herein. Freight, in carloads, to be entitled to the transit privileges named in tariff must be consigned locally to the transit point and must be tendered as "commercial freight for storage and subsequent exportation within. four (4) months, under the terms and conditions of Section 502.42 of General Order O. D. T. No. 16." APPLICATION FOR TRANSIT PRIVILEGES Item No. 2. (a) Storage in transit privileges under this tariff will be granted only to parties who make written application therefor to the General Freight Department of the inbound carrier at the transit point in advance (indicating the point or points at which storage is desired) and who agree to comply fully with the rules contained herein. (b) Parties desiring the use of the transit privileges herein described must make their own arrangements for storage and ascertain for themselves and bear the loading and unloading, storage and other charges that may be made by the transit storage facility. Item No. 3. DEFINITION OF TRANSIT PRIVILEGES Transit privileges as referred to herein are hereby defined as storage in transit of the freight described in Item 1, in carloads, and the fowarding subsequently of the identical freight, in carloads, to a port of exportation. Item No. 8. PRESERVATION OF IDENTITY The identity of each commodity entitled to transit unloaded into plants or storage place of the transit user must be preserved. The commodity or commodities forwarded from the transit point must be the identical commodity or commodities originally consigned thereto for subsequent reshipment and must be forwarded from the transit point under the terms and conditions of Section 502.42 of General Order O. D. T. No. 16. (See Item No. 14) |