Chesapeake & Ohio Railway Co. v. United States

161 F. Supp. 403, 142 Ct. Cl. 204, 1958 U.S. Ct. Cl. LEXIS 133

• Court: United States Court of Claims
• Decided: May 7, 1958
• Docket: No. 430-54
• Status: Published

Opinion

Jones, Chief Judge,

delivered the opinion of the court:

In this action plaintiff, Chesapeake and Ohio Railway Company, seeks recovery of amounts deducted from current bills submitted, for sums paid to plaintiff for transportation services rendered in 1943 and 1944, which defendant now alleges were excessive. The question before us concerns the proper charges applicable to wartime shipments of quantities of ammunition and explosives by plaintiff as delivering carrier to Oyster Point, Newport News, and Norfolk, Virginia. Although plaintiff participated in such shipments during the period 1942 through 1945, this suit involves the movement of 205 carloads of ordnance which were stored at defendant’s Oyster Point Depot prior to reshipment to Newport News or Norfolk during the years 1943 and 1944.

To alleviate the growing congestion and danger of explosion incident to the delivery, storage, and transshipment of ammunition directed to the Hampton Roads Port of Embarkation (Newport News and Norfolk) and lessen the difficulties in coordinating the arrival of rail shipments with vessels on which the ammunition was to be loaded, the Federal Government had, in 1942, constructed the Oyster' Point Back-up Storage Depot. This installation is approximately % mile northeast of Oyster Point Station, 10.8 miles west of Newport News, and 64 miles east of Richmond, Virginia. From plaintiff’s line, access to the depot during the period in question was by a Government-owned siding terminating at interchange tracks outside the depot.

The depot was enclosed by a high, barbed wire fence. Gates leading into the enclosure were under guard. The area was patrolled constantly. These security measures were the responsibility of a military police detachment permanently stationed at the depot. Within the enclosure there were some 12 miles of track. Adjacent to the tracks were concrete “igloos”, constructed for the storage of ammunition. As explained by a representative of the Government during the construction of the installation, the Oyster Point Depot was to be used for the storage of ammunition moved back from the Hampton Roads Port of Embarkation, or reconsigned in transit before arrival at the port (Finding 19).

Though 23 of the cars here involved were billed directly to the depot at Oyster Point, the Government bills of lading covering the remaining 182 cars indicated Newport News as the destination. Nevertheless, these latter cars were diverted or reconsigned while in transit to the Oyster Point Depot.¹ Regardless of the billing, all the cars were handled in the same manner. That is, they were delivered and placed by plaintiff on the Government’s interchange tracks outside the enclosure, or, in those instances when the interchange tracks were full, the plaintiff, at defendant’s request and after proper identification by sentries, placed the cars within the enclosure. Whether the cars were placed on the interchange tracks or within the enclosure, plaintiff’s responsibility as common carrier or bailee there ended. So placed, the cars were delivered to the defendant which took complete possession, custody and control of the cars at that point. Thereafter, movement into and within the enclosure was by motive power owned by the defendant and operated by its Transportation Corps personnel (Finding 11).

When defendant, because of the availability of shipping space, wanted those cars stored at the depot shipped to the port it notified its representatives at Newport News and the Oyster Point station. Defendant’s engine and crew thereafter moved the cars from the enclosure onto the interchange tracks where they were picked up by plaintiff and carried to the port.²

As noted above, the maimer in which the cars were handled resulted in plaintiff’s loss of custody and possession when they were delivered to defendant at the storage depot. Thus, absent any applicable special tariff provision or quotation pursuant to section 22 of the Interstate Commerce Act, 58 Stat. 751, 49 U.S.C. § 22, protecting the through rate from origin to port, the subsequent reshipment to Newport News or Norfolk produced two separate shipments or movements which would require computation of charges on the basis of the sum or combination of rates into and out of Oyster Point, Virginia.

Defendant recognized the high transportation costs that would therefore result from shipment of large quantities of ammunition under regular commercial tariffs, where those shipments would require storage at various ammunition depots and arsenals before reshipment to domestic and overseas consuming points. Consequently, it began in 1942 negotiations with the Association of American Railroads (AAR), and later with the plaintiff, for authorization, pursuant to section 22 of the Interstate Commerce Act, supra, of a storage-in-transit privilege that would protect the through export rate of shipments stored in transit at the Oyster Point Depot, as well as other depots and arsenals located throughout the United States.

In response to the defendant’s request, the AAR, on August 29, 1942, issued its Section 22 Quotation No. 31— “Transit Arrangement on Ordnance” — to the War and Navy Departments. In general, that quotation allowed storage-in-transit privileges at various enumerated storage depots. Oyster Point was included within the quotation. However, due to the unique situation prevailing at Oyster Point, the War Department requested that Oyster Point be eliminated as a storage depot from AAK Section 22 Quotation No. 31 and be included within a new quotation. The AAK acceded to defendant’s request and issued AAK Section 22 Quotation No. 40 on October 9, 1942. Application of this quotation was restricted to the “back-up depot” at Oyster Point, Virginia. Again defendant requested modifications, and on November 6, 1942, AAK-40 was reissued as 40-A (effective retroactively as to shipments moving from point of origin on or after September 1, 1942). AAK 40-A was accepted by the War Department. While this quotation was in effect, Oyster Point continued to be therein designated as a back-up depot. Over a year after its issuance, defendant’s representatives at Newport News made known to plaintiff certain objections to AAK 40-A, claiming that it failed to meet their needs. Negotiations subsequently followed and resulted in the issuance of plaintiff’s C & O Section 22 Quotation No. 8 on December 14, 1943, effective retroactively to November 19,1943.

Both AAK 40-A and C & O No. 8 permitted shipments of ammunition and explosives to be stored by the Government at the Oyster Point Depot and later reshipped to Newport News or Norfolk at through all-rail export rate, origin to port. Both quotations contained the following provision:

No rate or charge applicable on any shipment moving under this Quotation shall be subject to any land grant deduction. [AAK 40-A (Item 10); C & O No. 8 (Item 8).]

However, it was not the understanding of the parties to this suit that the Government, because of the special rates afforded by the quotations, could not avail itself of published tariff rates whenever, due to substantial land-grant deductions, the commercial rates were lower. This point was clarified in early 1944 when the above quoted provision, common to both AAR 40-A and C & O No. 8, was amended to read:

The rates provided under the Quotation are special rates not available to commercial shippers and are, therefore, not subject to any deduction on account of land grant, but nothing in this Quotation shall deprive the Government of the right to avail itself of any published tariff rate to which it lawfully is entitled, less any lawfully applicable land-grant deduction.

The amendments were retroactive in each instance (Finding 33).

While AAR 40-A was in effect, but before C & O No. 8 became effective, 23 of the cars subject to this suit were moved. The balance of the cars were moved during a time when C & O No. 8 was in effect.

Charges were originally billed and paid by defendant for the shipment of the 205 carloads on the basis of the through export rate without land-grant deductions as provided in AAR 40-A and C & O No. 8.

However, in 1951, several years after payment of these charges, the Government began making deductions from plaintiff’s current bills, claiming that plaintiff’s Freight Tariff No. 2418-H, in effect at the time of the shipments in question, should have been applied to those shipments. The lesser charges resulting from the application of 2418-H, the applicability of which is here disputed by plaintiff, is advanced by defendant as justification for its deductions.

The title page of C & O Freight Tariff No. 2418-H states that it sets forth “Local Rules and Charges governing the Diversion and Reconsignment of Freight and Holding of cars for Surrender of Bills of Lading or Written Orders or Inspection at Stations on the Chesapeake and Ohio Railway Company.” Plaintiff’s 2418-H, following closely the wording of similar tariffs of other carriers, permits, with certain exceptions, the diversion or reconsignment of freight traffic at the through rate. Pertinent provisions of C & O Freight Tariff No. 2418-H are quoted in finding 35. Application of this tariff, as opposed to the Section 22 Quotations, would permit land-grant deductions to be made by the Government.

The issue before the court then is whether the through export rate, origin to port, without land-grant deduction, allowed defendant under AAB, 40-A and C & O No. 8 for ammunition stored at the Oyster Point Depot prior to reshipment to Newport News or Norfolk, Virginia, was likewise available to defendant under plaintiff’s commercial tariff, 2418-H, less land-grant deductions.

Pursuant to stipulation, the parties have agreed that should plaintiff prevail in this suit it will be entitled to $47,914.64; but should judgment be for defendant, plaintiff will be entitled to recover only $360.02.

Basically, defendant’s argument for the application of 2418-H rests on the assertions that these carloads of ammunition were stopped and held for orders for the purpose of reforwarding (Rule 8a) on private sidings connected with plaintiff’s line (Item 5b) and later reforwarded (reconsigned or diverted) to the port (Rule 10) ,³ So interpreted, Rule 2 is then given effect by allowing the through rate. With respect to the 23 cars billed to Oyster Point, defendant argues that plaintiff knew and understood that Oyster Point was not the final destination of the shipments and that ultimately they were to move to Newport News for shipment overseas. Implicit, of course, in the Government’s argument is the belief that the cars were not placed for unloading at Oyster Point within the meaning of Rule 12. Otherwise, that rule would operate to subject defendant to the combination of tariff rates to and from the point of diversion or reconsignment (Oyster Point).⁴

Thus the core of defendant’s argument is its contention that the cars were merely held at Oyster Point, pending orders for subsequent reforwarding. Defendant’s position, however, is contradicted by the facts as established by the commissioner, and which we here adopt. As found, the cars were delivered to the storage depot, and there plaintiff relinquished possession, custody and control of them to the Government. Any subsequent movement from the depot would constitute a “reshipment”, and not a “reforwarding” as defendant contends. The significance of “loss of custody” is highlighted in Stetson, Cutler & Co. v. N. Y., N. H. & H. R. R. Co., 911. C. C. 3, 5. There the Interstate Commerce Commission said:

The definition of reconsignment * * * provides that the term means “Any other instructions * * * necessary to effect delivery which requires a change in billing or an additional movement of the car, or both * * A change in billing and an additional movement are also contemplated by the definition of reshipment. But the definition of reconsignment clearly indicates that the shipment must still he in the custody of the carrier. These carloads never left the custody of the carrier until they were delivered at South Providence. If reshipment is to have any meaning differentiating it from reconsignment, and thus serve any useful purpose in the tariff, the line of demarcation must he drawn there. [Emphasis supplied.]

See also Woodward & Son v. Southern Ry. Co., 156 I. C. C. 354, 356-357; Chesnut v. Chicago, B. & Q. R. Co., 208 I. C. C. 456, 459.⁵

Defendant, however, would have us attach no significance to the fact that possession of the cars was relinquished by plaintiff at the storage depot. The tariff does not have a requirement that the cars be in the possession of the carrier, argues defendant, inasmuch as Item 5 (b) provides that the tariff rules apply to cars while on private sidings connected with plaintiff’s line. The Government considers the tracks at Oyster Point to be private tracks. In answer to defendant, the terms within a tariff are to “be taken in the sense in which they are generally understood and accepted commercially”, A. D. Cook, Inc. v. Baltimore & O. R. Co., 241 I. C. C. 681, 683. Here the tracks within the enclosure at Oyster Point, measuring approximately 12 miles, are commonly known and referred to as “industry” or “industrial” tracks, and the commissioner so found. See The Lake Terminal Case, 50 I. C. C. 489, 497, for discussion of this distinction between private sidings and industrial tracks. Tariff 2418-H has no application to cars stored within the network of industrial tracks, as a reading of Item 5 (b) will indicate.

Defendant’s position in general is untenable by reason of Rule 12 of the tariff which precludes reconsignment at the through rate following carrier delivery and loss of possession. That rule requires the combination of tariff rates over the point of diversion or reconsignment once a car has been placed for unloading and is later diverted or reconsigned.⁶ Here the cars in question were delivered to defendant at the storage depot. Should the Government have found it necessary to unload any of the cars, which would have been the case had the overseas military demand for ammunition been curtailed, then it could have done so. Storage “igloos” were available for such a contingency — and they were so utilized during the period January 1943 to March 1945 when some 142 cars of munitions were unloaded at the storage depot.⁷ Although none of the cars involved in this suit were unloaded, there was nothing contained in the waybills or bills of lading to indicate that the cars were or were not to be unloaded. Furthermore, there were no restrictions in tariffs, Army orders or instructions that prevented unloading. Under these circumstances, there was a “placement for unloading” within the meaning of Rule 12 of 2418-H (Finding 13).

Other instances wherein defendant’s position conflicts with the provisions of 2418-H are called to our attention by counsel for plaintiff. However, we see no need to consider them in view of our holding that the shipments in question involved a “placement for unloading” as that phrase is used in Rule 12 of 2418-H. The Government having failed to establish the applicability of C & O Freight Tariff No. 2418-H to the situation prevailing at Oyster Point Back-up Storage Depot, we therefore enter judgment for plaintiff.

Pursuant to stipulation, plaintiff is entitled to recover $47,914.64, and judgment will be entered in that amount.

It is so ordered.

Laramore, Judge; Madden, Judge; Whitaker, Judge; and Littleton, Judge, concur.

FINDINGS OF F'AOT

The court, having considered the evidence, the report of Trial Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff, a corporation organized and existing under the laws of the Commonwealth of Virginia, is a common carrier by railroad of persons and property and is engaged in interstate commerce, over its own lines and jointly with other carriers.

2. During the period 1942 through 1945, plaintiff participated as delivering carrier in the transportation of ammunition, explosives, chemical warfare commodities and other ordnance for defendant and on Government bills of lading, from various points beyond plaintiff’s lines to Newport News, Virginia, Oyster Point, Virginia, and Norfolk, Virginia. This suit concerns the proper charges applicable to 205 such carloads which moved during 1943 and 1944.

3. The bills of lading covering 182 of these 205 cars show Newport News as the destination. Each of the 182 cars was diverted or reconsigned in transit to the Government’s Backup Storage Depot at Oyster Point. The remaining 23 cars involved in this suit were billed directly to Oyster Point. All 205 cars were delivered to the defendant at the Oyster Point Back-up Storage Depot where they were stored on defendant’s tracks and subsequently reshipped to Newport News (in the case of 165 cars) or (in the case of the remaining 40 cars) to Norfolk for transshipment by vessel.

4. Oyster Point Back-up Storage Depot, so designated as distinguished from a “holding and Reconsignment Point,” was and is an installation owned and operated by defendant approximately '■% mile to the north and east of Oyster Point-station, 10.3 miles west of Newport News, and 64 miles east of Richmond. Neither the depot nor the Oyster Point station was ever within the switching limits of Newport News. The depot was constructed and maintained by the defendant during the war for storing ammunition so as to avoid congestion and minimize the danger of explosion at the Hampton Roads Port of Embarkation (Newport News and Norfolk) and in order to coordinate the arrival of rail shipments of ammunition and explosives at the port with the vessels on which they were to be. loaded.

5. Plaintiff lost custody and possession of the cars upon delivery to defendant at the storage depot. In the absence of any applicable special tariff provision or Section 22 Quotation protecting the through rate origin to port, these would have been considered two separate shipments or movements and charges would have been properly computed on the basis of the sum or combination of rates into and out of Oyster Point, Virginia.

6. Plaintiff contends that the through export rate, origin to port, without land-grant deduction is available to defendant only through the medium of Association of American Eailroads’ Section 22 Quotation No. 40-A (hereinafter called “AAE 40-A”) or plaintiff’s Section 22 Quotation No. 8 (hereinafter called “C & O No. 8”), whenever application of these quotations results in charges less than the combination of rates over Oyster Point. Defendant contends that certain provisions of plaintiff’s Freight (Diversion and Ee-consignment) Tariff No. 2418-H have application to these shipments and authorize payment of the through export rate less land-grant deductions.

7. Before December 14,1943, when C & O No. 8 was issued, the majority of shipments of ammunition destined for export through the Hampton Eoads Port of Embarkation was billed to Oyster Point, and the bills of lading covering the 23 cars in this suit moving before that date in each instance show Oyster Point as the destination. Where defendant wanted cars moving prior to December 14, 1943, with Newport News as their billed destination to be delivered to the Oyster Point Back-up Storage Depot, they instructed plaintiff’s representatives at Newport News to divert the car or cars to the same consignee at Oyster Point, Virginia, for storage-in-transit. These instructions were confirmed in writing by defendant. Where defendant wanted cars moving prior to December 14, 1943, with Oyster Point as their billed destination to by-pass Oyster Point and come directly to the port, they instructed plaintiff to divert or reconsign the car or cars to Newport News or Norfolk. These instructions were also confirmed in writing by defendant.

8. After the issuance of C & O No. 8 on December 14,1943, the defendant’s Port Transportation Officer at Hampton Eoads Port of Embarkation (1) advised plaintiff’s representatives that all cars containing ammunition or explosives destined for export through that port would thereafter be billed to Newport News and (2) instructed plaintiff’s representatives that, unless instructed to the contrary, all such cars were to be diverted and delivered to defendant at the Oyster Point Back-up Storage Depot. These instructions, which were carried out by plaintiff, were never reduced to or confirmed in writing. All 182 cars in this suit that moved after December 14, 1943, were billed to Newport News and were delivered to defendant at the Oyster Point Back-up Storage Depot pursuant to these instructions.

9. Cars of ammunition or explosives from the west, destined for the Hampton Roads Port of Embarkation, were interchanged with plaintiff’s connections at Richmond or were transported by defendant into Richmond where, because of the dangerous nature of their contents, they were segregated and set out on separate tracks at plaintiff’s Fulton Yards. Similarly, upon arrival at the Newport News yards, cars of ammunition were segregated and placed on isolated tracks awaiting return to Oyster Point or delivery to ship-side. Nothing was permitted to be stored, on either side of the track where the cars were placed and use of the gravity system of “humping” in the switching of these cars was prohibited. On all movements of trains containing cars of ammunition, at least three cars were required to be placed between the locomotive and the first car containing ammunition. These restrictions were prescribed in special regulations issued by the Interstate Commerce Commission for the movement of ammunition and explosives by rail.

10. Plaintiff’s railroad is a double-track line between Richmond and Newport News. Until July 25, 1944, there was no connection between the Oyster Point Back-up Storage Depot and plaintiff’s eastbound track. A crossover existed at Oriana, Virginia, about three miles west of Oyster Point, but it was not possible from a safety standpoint to utilize this crossover to bring shipments into the storage depot since it would have entailed, running trains of high explosives into the face of oncoming traffic, including frequent shuttle movements of troops. It was necessary, therefore, for plaintiff to carry all cars destined for the depot and moving prior to that date (including 170 of the 205 cars in this suit) into Newport News, return them to Oyster Point on the westbound track by the westbound local or by special train and road crew, and back them onto the defendant’s tracks at the storage depot — a total round-trip distance of 20.6 miles. A “Wye” and crossover to the eastbound track was constructed at Oyster Point and put into operation on July 25, 1944. Thereafter plaintiff was able to back cars destined for the storage depot directly onto the defendant’s track at Oyster Point without the additional movement into and back-haul from the Newport News Yards.

11. The majority of the cars arriving at the Oyster Point Back-up Storage Depot were placed by plaintiff on the Government-owned interchange tracks outside the enclosure. In some cases, where the interchange tracks were full, plaintiff, at defendant’s request and after plaintiff’s train crew had been properly identified by defendant’s sentries, placed the cars on the defendant’s tracks inside the enclosure. Movement of the cars between the interchange tracks and the storage depot and within the depot itself was accomplished by means of motive power owned by the defendant and operated by its Transportation Corps personnel. Plaintiff’s responsibility as common carrier or bailee ended with the placement by it of the cars upon the interchange tracks or, as the case may be, upon the Government tracks inside enclosure. Cars so placed were delivered to defendant and defendant took complete possession, custody and control of the cars at point of delivery.

12. The Oyster Point Back-up Storage Depot contained approximately 12 miles of track, owned and maintained by the defendant. There were within the depot twenty concrete “igloos” for storage of ammunition. Each igloo, approximately 60 x 150 feet in size, was covered with earth. In front of each igloo was a blast wall. A single stub-end track ran to the entrance of each igloo, between the igloo’s unloading platform, which was the height of a standard freight car door, and the blast wall. A high, barbed wire fence and patrol road surrounded both the depot and the interior igloo area. The depot was patrolled constantly and guards were posted at every gate. Security of the depot was the responsibility of a detachment of military police which was permanently stationed there.

13. Although none of the cars in this suit were actually unloaded at the storage depot, the defendant had complete control and custody of the cars at the depot and plaintiff had no way of telling when it delivered the cars which, if any, might be unloaded. Accordingly, all cars were placed by plaintiff on defendant’s tracks at the depot in exactly the same manner. Nothing on either the waybills or bills of lading indicated that cars were or were not to be unloaded. There were no restrictions in tariffs, Army orders or instructions that prevented unloading. Actually, some 142 cars of ammunition and explosives were unloaded at the storage depot during the period January 1943-March 1945. Many of these cars arrived at the depot in the same train as cars which were not unloaded and some of these cars arrived at the depot in the same week and on the same day as cars involved in this suit. The first notice plaintiff had of cars having been unloaded was when it received empty cars on the interchange tracks. Under these circumstances, placement of cars containing ammunition or explosives upon defendant’s tracks at the storage depot constituted a “placement for unloading” should defendant find it necessary or desirable to unload any or all of the cars.

14. The purpose of the consignment or diversion of the cars to the Oyster Point Back-up Storage Depot was storage-in-transit pending further orders from defendant. Cars delivered to the defendant at the depot were stored on the defendant’s tracks within the enclosure. Such tracks are commonly known and referred to as “industry” or “industrial” tracks. Responsibility for the cars while in storage was that of defendant’s Port Ordnance Officer.

15. When ship space became available and defendant wanted cars in storage at the depot reshipped to the port, one of defendant’s transportation officers at the port would give a list of the desired cars by telephone to defendant’s representative at both Newport News and the Oyster Point station. The cars were then moved ont and placed upon the interchange tracks at Oyster Point by defendant’s engine and crew. In some cases they would be picked up in the morning by plaintiff’s westbound local, taken to Williams-burg and brought down to the port later that day when the local returned to Newport News. In other instances, they were brought by the plaintiff’s westbound local to the Oriana crossover and held there under guard .until they could be picked up by the local on its return trip to the port. On numerous occasions it was necessary for plaintiff to send up a special train and road crew from Newport News to bring cars down from the depot. In fact, 62 of the 165 cars in this suit exported through Newport News were brought to that port by special train movement.

16. The movement from the Oyster Point Back-up Storage Depot to the port, either Newport News or Norfolk, was regarded by representatives of both plaintiff and defendant as a “reshipment,” and, in the case of the 182 cars in this suit originally billed to Newport News and diverted or reconsigned to transit to the storage depot, the operation amounted to a second change in destination.

17. Defendant’s orders to plaintiff to reship cars from the Oyster Point Back-up Storage Depot to Newport News, which had originally been consigned to Newport News and diverted and delivered to the storage depot under defendant’s instructions, were given orally and were never confirmed in writing. No charge was assessed for this movement from storage depot to port. Defendant’s order to plaintiff to bring cars down from the storage depot to Norfolk were given orally and were subsequently confirmed in writing. A charge of $6.93 per car was assessed and paid on Oyster Point-Norfolk movements on the authority of Item 6 of C & O No. 8.

18. On July 13,1942, W. J. Williamson, Chief of the Traffic Control Division, Office of the Chief of Transportation, War Department, wrote A. F. Cleveland, Vice-President of of the Association of American Railroads, as follows:

The present war effort, with its tremendous demands for ammunition of all descriptions, requires the storage of vast quantities of ordnance materiel at various ammunition depots and arsenals throughout the continental United States. As tlie production of tbe materiel has increased, greater and greater quantities are being moved from production lines to storage depots for subsequent reforwarding to consuming points, both within the continental limits of the United States and overseas.

At the present time, due to the lack of provisions authorizing storage-in-transit on such material, it is necessary that the War Department pay the local rate to and from the storage point. With the prevailing high classification ratings, applicable on the materiel moved in such traffic, the transportation costs are tremendous.

It is requested that the nation’s carriers provide storage-in-transit privileges at the various ammunition depots and arsenals throughout the United States, which will allow movement inbound on the local rate, storage at the transit point for a period not to exceed two years, and shipment outbound to both inland destinations and, ports for export at the balance of the joint through rate plus transit charge. There is inclosed a list of points at which storage-in-transit privileges are desired, and also a list of commodities on which it is requested that the privileges be made to apply.

As there is an immediate need for the privileges requested, it is urgently desired that you handle as promptly as possible with the executives of the nation’s carriers for such privileges.

* ❖ * * *

The list of points, attached to the letter, at which storage in transit privileges were desired, did not name Oyster Point.

19. On August 10, 1942, Lt. Col. H. M. Tourville, Chief of the Freight Branch of the Office of the Chief of Transportation, wrote to P. J. Tierney, plaintiff’s Freight Traffic Manager, as follows:

In connection with the operation of the Hampton Roads Port of Embarkation, a storage plant for ammunition is under construction at Oyster Point, Va. This storage plant will be used for the storage of ammunition under the following circumstances:

1. For storage of ammunition, which has failed to make a sailing, and is moved back to the storage plant for safe storage awaiting arrival of a suitable vessel.

2. For storage of ammunition, originally consigned to the port, but reconsigned in transit to the storage plant because ship space was found to be unavailable after the shipment left point of origin.

It is therefore requested that the following rate and transit privilege be established:

1. Provide a commodity rate on ammunition, C. L., minimum weight 60,000 lbs., 12 cents per 100 lbs., between Army Ammunition Pier, Newport News, Va., and Ammunition Storage Plant, Oyster Point, Va.

2. Ammunition, C. L., moving on War Department’s Government bills of lading, may be reconsigned and stopped for storage-in-transit at the Ammunition Storage Plant, Oyster Point, Va., and subsequently be reshipped therefrom within twelve (12) months to the Army Ammunition Pier, Newport News, Va., plus reconsigning charge and transit charge of 3y% cents per 100 pounds.

It is felt that the minimum weight of 60,000 pounds and the short haul involved are still further arguments in support of this proposal.

Prompt advice of establishment of the requested rate and transit privilege will be greatly appreciated.

20. On August 15, 1942, Mr. Tierney replied to Lt. Col. Tourville’s letter as follows:

As you probably know the Association of American Railroads has been requested by the War and Navy Departments to give consideration to establishing storage in transit of ammunition ultimately forwarded to ports for trans-shipment by vessel. This request will in all probability result in a Section 22 quotation which will cover the storage-in-transit arrangement at Oyster Point as well as other points which have been named or will be named by the War and Navy Departments.

21. By letter of August 22, 1942, Lt. Col. Tourville advised Mr. Tierney that the proposal under consideration by the AAR would not apply at Oyster Point. He therefore requested that “further consideration be given to our proposal of August 10, 1942, regarding the storage-in-transit privilege on ammunition at Oyster Point, Va.,” and asked that a “formal quotation under Section 22 of the Interstate Commerce Act” be submitted by plaintiff granting the privilege. On the same date, and before plaintiff had received Lt. Col. Tourville’s letter, plaintiff’s General Freight Traffic Manager, William Fitzgerald, wrote to Mr. Cleveland and requested that Oyster Point be added to the list of storage depots in the Section 22 Quotation being prepared by the AAR in. response to the War Department’s request of July 13 for storage-in-transit privileges on ammunition. Lt. Col. Tourville was advised of this action on September 2, 1942, by Mr. Tierney.

22. On August 29, 1942, the AAR issued its Section 22 Quotation No. 31, “Transit Arrangement on Ordnance,” to both the War and Navy Departments. AAR-31 permitted carload shipments of ammunition and explosives, moving all-rail on defendant’s bills of lading, to be stopped in transit for storage by the defendant at a named storage depot for as long as one year and subsequently reshipped to a port for export at the through export rate without land-grant deduction and plus payment of a transit charge. By an earlier AAR Section 22 Quotation No. 14, issued at defendant’s request in April 1942 and accepted by defendant, rail rates on ammunition and explosives had been reduced to 65% of first class, not subject to land-grant deduction. As a result of Mr. Fitzgerald’s request, Oyster Point was listed in AAR-31 as on9 of the storage depots at which the storage-in-transit privilege accorded by that quotation applied. In the absence of AAR-31, charges on shipments stored-in-transit at these depots could have been computed on the basis of the combination of rates into and out of the storage depot.

23. On September 9, 1942, Lt. Col. Tourville advised Mr. Fitzgerald that Oyster Point should not be included in AAR-31 and requested that “further consideration be given to the request of August 10, 1942, for a specific quotation covering this point”. He repeated this request in a letter to Mr. Tierney on the same date and in a letter to Mr. Fitzgerald on September 24,1942.

24. On October I and 8,1942, the Traffic Executive Chairmen’s Committee, a group composed of Mr. Cleveland and the Chairmen of the three territorial rail traffic executive associations (east, west and south), set up at the request of the Director of the Office of Defense Transportation in July 1942 to negotiate rate adjustments, transit arrangements and the like with the defendant, conferred in Washington with representatives of the War Department regarding the latter’s request that Oyster Point be eliminated as a storage depot from AAR-31. The minutes of that meeting relate:

It was explained that Oyster Point, Va., is a “back-up depot” for ordnance items to be transshipped by water through Newport News, Va.; that the customary procedure would be to consign shipments to Newport News, Va., for transshipment but in the event boats are not available, shipments would be moved back to Oyster Point, Va., there stored and subsequently returned to Newport News for transshipment; that the Chesapeake & Ohio Railway had quoted under Section 22 a rate of 12 cents per hundred pounds in each direction between Newport News and Oyster Point. In some instances shipments consigned to Newport News, Va., for transshipment are diverted en route to or stopped at Oyster Point for storage and later reshipped to Newport News for transshipments.

As to shipments which move through to Newport News and are returned Oyster Point for storage and after-wards reshipped to Newport News, the War Department desires protection of the applicable through export rate plus the Section 22 quotation rate of 12 cents in each direction between Newport News and Oyster Point, plus such demurrage, storage or other accessorial charges which may accrue at either Newport News or Oyster Point. With respect to shipments which are diverted en route to or stopped at Oyster Point, for storage and later reshipped to Newport News for transshipment, the War Department desires protection of the through export rate applicable from original point of shipment over the route of movement through Oyster Point to Newport News plus a transit charge of Sy2 cents for the storage privilege at Oyster Point, plus such demurrage, storage, diversion or reconsignment or other accessorial charges which may accrue at either Oyster Point or Newport News.

25. As a result of the meeting, referred to in the preceding finding, Oyster Point was eliminated as a storage depot from AAR-31 and a new Quotation, AAR Section 22 Quotation No. 40, was issued on October 9, 1942. AAR-40 covered carload shipments of ammunition and explosives consigned to the port which:

(a) after arrival at the port to which consigned is returned to a “back-up depot” for storage and after-wards is reshipped to the port to which originally consigned for transshipment or (b) before arrival at the port to which consigned is diverted to or stopped at a “back-up” for storage and is later reshipped to the port to which originally consigned for transshipment.

On shipments of the second type, (b), the through all-rail carload export rate without land-grant deduction was protected and a transit charge of 314 cents per cwt. was specified. The only back-up depot listed as covered by AAR-40 was “Oyster Point, Va.” The first carload of ammunition was delivered to defendant at the Oyster Point Back-up Storage Depot for storage on October 9,1942, the same day AAR-40 became effective.

26. On October 20, 1942, Major R. M. Boyd, Lt. Col. Tourville’s successor as Chief of the Freight Branch of the Office of Chief of Transportation, advised both Mr. Cleveland and Mr. Fitzgerald that AAR-40 was not fully responsive to the War Department’s needs. This was because the “back-up” storage depots, having been designed for emergency use, were not equipped to maintain the full and complete transit records and accounts required by the quotation and because the quotation contained no provision for out-of-line hauls which would occur at back-up depots later to be placed in operation. On October 28-30, 1942, the Traffic Executive Chairmen’s Committee met in Washington with representatives of the War Department to consider a revision of AAR-40 to meet the latter’s objections.

As a result of these discussions, AAR Section 22 Quotation 40-A was issued on November 6, 1942, and made effective retroactively as to shipments moving from point of origin on or after September 1, 1942. Item No. 1 of 40-A provided:

The traffic covered by and subject to this quotation is the commodities listed in Item No. 3 [ammunition and explosives] when originating at points in continental United States and moving all-rail, in carloads, under Government bills of lading, consigned to or intended for a port in continental United States for transshipment by vessel, which

(a) after arrival at the port to which consigned is returned to a back-up depot for storage and afterwards is reshipped to the port to which originally consigned for transshipment, or

(b) before arrival at the port to which consigned is diverted to or stopped at a back-up depot for storage and is later reshipped to the port to which originally consigned for transshipment, or

(c) is initially consigned to a back-up depot for storage and is later reshipped to the port served by the backup depot.

The through all-rail carload export rate, without land-grant deduction, was protected on shipments of the last two types ((b) and (c)) and a transit charge of 3% cents per cwt. was specified. The only back-up depots at which the storage-in-transit privilege was accorded were Oyster Point, Ya. and Maynard, Massachusetts. Up to a year’s storage privilege was provided; records maintenance requirements were reduced; and provision was made for out-of-line hauls.

27. AAR 40-A was accepted by the War Department. Amendments to the quotation were made at defendant’s request and the quotation was re-issued as AAR 40-B on February 3, 1944. Oyster Point continued to be listed as a backup depot throughout the life of the quotation.

28. The bill of lading covering each of the cars in this suit which moved during the period AAR 40-A was in effect and before O & O Section 22 Quotation No. 8 was issued bears the stamped notation:

Stored-in-transit Oyster Point, Yirginia. Reshipped without unloading on this B/L Sec. 22, Quotation 40-A.

These notations are signed by Lieutenant Kennedy McFaul, as Assistant Port Transportation Officer at Newport News.

29. After AAR 40-A had been in effect for over a year, defendant’s representatives at Newport News pointed out to plaintiff that in certain respects the quotation had failed to meet their needs. Specifically, defendant objected to: (a) the existence of any requirements for the maintenance of tonnage and transit records at the storage depot * * * shortage of trained personnel made these requirements onerous and incapable of fulfillment; (b) payment of the 3%-cent transit charge — defendant felt that increased use of the storage depot, in part due to restrictions imposed by the Commanding General upon the length of time ammunition and explosives could be held at the port, justified waiver by plaintiff of this charge; (c) the limitation in AAR 40-A to only one transit privilege * * * many of the shipments stored at the Oyster Point Back-up Storage Depot had already been accorded storage-in-transit at an interior storage depot under AAE-31.

30. Following negotiations initiated by defendant, plaintiff issued its C & O Section 22 Quotation No. 8 on December 14,1943, effective retroactively to November 19, 1943. Item 1 of C & O No. 8 provides:

The traffic covered by and subject to this Quotation is Ammunition, Explosives and other Ordnance, as specified in AAE Section 22 Quotation 31-C, amendments thereto and reissues thereof, when originating at points in continental United States and moving all-rail in carloads, via routes operating through Oyster Point, Va., under Government bills of lading, consigned to the Hampton Eoads Port of Embarkation-, Newport News, Va., or Norfolk, Va., for transshipment beyond by vessel.

The quotation further provides (Items 2 and 3) that shipments of the above type “may be stopped in transit at Oyster Point, Va., by the Government for storage in cars, on the Government’s tracks at Oyster Point, Va., by and at the expense and in the custody and possession of the Government, and thereafter may be reshipped to Newport News, Va., or Norfolk, Va., at the through all-rail export rate from original point of origin to Newport News, Va., or Norfolk, Va. * * *. The quotation contained no requirements for maintenance of tonnage or transit records, no provision for payment of a transit charge and expressly provided (Item 7) that the transit privileges accorded would be in addition to those accorded by AAE 31-C. Defendant was responsible for the issuance of C & O No. 8, and in requesting amendments to the quotation, recorded its position as to one amendment to the quotation, acknowledged receipt of the quotation with amendments thereto, and authorized plaintiff to cancel the quotation at the end of the war. This would tend to show acceptance of the quotation.

31. AAE 40-A (Item No. 12) provided that “All charges to the back-up depot * * * will be paid by the Government promptly after the arrival of the freight at such depot.” C & O No. 8 (Item 4) provided that “the through all-rail rate to the billed destination * * * will be collected, when the shipment is delivered to the Government at Oyster Point, Va.” On March. 12, 1943, Major Boyd wrote to Mr. Cleveland as follows:

It has come to the attention of this office that there are instances where shipments arriving at the back-up depots, actually or constructively placed for delivery, are reforwarded to the ports in the original cars without being unloaded. Under the terms of the present Quotation it is necessary to surrender inbound bills of lading and issue new bills of lading to cover the movements to the ports.

To eliminate this additional work and expense both to the depots and the carriers it is requested that Quotation No. 40-A be amended to include an item similar to Item No. 18 of Quotation No. 16-B.

Similar objection was made to C & O No. 8 by Lt. J. W. Gilius, Assistant Port Transportation Officer at Newport News, in a letter to Mr. Fitzgerald dated December 20,1943. Accordingly, both AAR 40-A and C & O No. 8 were amended to permit charges to follow the car for collection at the port. In actual practice bills of lading were never surrendered at Oyster Point. At the request of the Port Transportation Officer at Newport News, plaintiff had permitted the bills to follow the cars for surrender and payment of charges at the port. The amendments to the Section 22 Quotations simply changed the language of the quotations to conform to what was already being done.

32. Charges were originally billed and paid on account of these shipments on the basis of the through export rates without land grant as provided in AAR 40-A and C & O No. 8. Since there was nothing on the bills of lading covering cars moving while C & O No. 8 was in effect to indicate the cars had been stopped for storage at the Oyster Point Back-up Storage Depot, the General Accounting Office claimed that these cars had moved directly from origin to port and were therefore entitled to the through export rate less land-grant. Following negotiations with the General Accounting Office, plaintiff prepared from the car record books maintained at the Oyster Point station lists of the cars and the numbers of the bills of lading covering the cars that had been delivered to defendant for storage at the depot. In late 1946 these lists were submitted by plaintiff to the Port of Embarkation Records Branch, Headquarters, Second Army, which had custody of the transportation records of the deactivated Hampton Roads Port of Embarkation. Following a check of all pertinent official records, including defendant’s own car record books, the officer in charge of the Port of Embarkation Records Branch executed a certificate at the foot of each list submitted, reading as follows:

This is to certify that the shipments referred to above were stopped at Oyster Point, Virginia for storage-in-transit under provisions of the C & O Railway Company Section 22 Quotations 8 and 9 and any charges resulting therefrom are due the carrier and are payable from public funds.

One hundred sixty-nine of the 182 cars in this suit that moved during the period C & O No. 8 was in effect are included on lists bearing the above certificate. As a result of these certificates, plaintiff’s bills were paid by defendant and the deductions from current bills giving rise to the present suit were not commenced until 1951. '

33. AAR 14 — A (Item 5), AAR 40-A (Item 10) and C & O No. 8 (Item 8), as issued, all contained the provision that “No rate or charge applicable on any shipment moving under this Quotation shall be subject to any land-grant deduction.” In early 1944 this proyision in each quotation was amended to read:

The rates provided under the Quotation are special rates not available to commercial shippers and are, therefore, not subject to any deduction on account of land grant, but nothing in this Quotation shall deprive the Government of the right to avail itself of any published tariff rate to which it lawfully is entitled, less any lawfully applicable land-grant deduction.

The date such amendments were issued, their number and their effective dates (retroactive in each instance) are as follows :

Quotation Amendment No. Sate Effective

AAR 14-A_ 4 1/ 5/44 12/ 7/42

AAR 40-A_ (40-B) 2/ 3/44 2/ 1/44

O & O No. 8_ 2 1/10/44 11/19/43

34. C & O Freight Tariff 2418-H was issued on July 9, 1942, to become effective on August 17, 1952. It canceled C & O Freight Tariff 2418-G but made no change affecting this case. The title page of 2418-H states that the tariff sets forth “Local Bules and Charges governing the Diversion or Beeonsignment of Freight and Holding of cars for Surrender of Bills of Lading or Written Orders or Inspection at Stations on the Chesapeake and Ohio Bailway Company.” At the top of each page of Section One of the tariff the following language appears: “BULES GOVERNING THE DIYEBSION OB RECONSIGNMENT OF CABLOAD FREIGHT AND THE HOLDING OF CABS FOB SURRENDER OF BILLS OF LADING OB WRITTEN ORDERS OB INSPECTION.” 2418-H follows closely the wording of similar tariffs of other carriers, all of which follow the recommended rules adopted by the National Diversion and Beeonsignment Committee.

35. The provisions of C & O Freight Tariff 2418-H pertinent to this suit are:

APPLICATION

Item 5.

ta) All carload traffic * * * may be diverted or reconsigned, or held for surrender of bills of lading or written orders, or inspection * * * subject to the following rules and charges:

(b) These rules apply to a car which is in the possession of this line as a road haul carrier, or while on its public delivery or other tracks, or while the car is on private or assigned sidings connected with this line * * *

4* * * * *

(i) No diversion or reconsignment order shall designate any specific time of day (or night) for the execution thereof under these rules; where time of execution is made a condition of the diversion or reconsignment order it will have no effect or application.

Definitions

Item 10.

The term “Diversion” or “Beeonsignment” means:

(a) A change in the name of the consignee.

(b) A change in the name of the consignor. (See Buie 6)

(c) A change in destination. (See Buie 5)

(d) A change in the route at the request of the con- • signor, consignee or owner.

(e) Any other instructions given by consignor, consignee, or owner necessary to effect delivery and requiring an addition to or a change in billing or an additional movement of the car, or both.

Conditions

Item 15.

The services herein authorized are subject to the following conditions;

* # H* H* ❖

(d) A request for diversion or reconsignment must be made or confirmed in writing . . .;

(e) That no back haul is involved except as expressly provided in Bule 14;

‡ ‡ $ H<

Buies

$ $ * $ $

Buie 2. Application of Freight Bates. — Where the through rate is authorized under these rules, it is the applicable rate (local rate, joint rate, or combination of intermediate rates) in effect on date of shipment from point of origin over the route of movement via the diversion or reconsignment point to final destination. (See Buie 5)

* ❖ * * *

Buie 5. Change m Destination. — (a) Only one change in destination at the applicable rate (see Buie 2) from point of origin to final destination will be permitted by this line under these rules, and then only provided the car has not had a previous change in destination while on the lines of other carriers after leaving the initial billing point [see Buie 8 (a)].

(b) Except as provided in paragraphs (c) and (d) of this rule, if, after car has had one change in destination after leaving the initial billing point, the destination is again changed upon request of consignor, consignee, or owner, the shipment will be treated as a new shipment from the point at which the second or subsequent change in destination is accomplished and will be subject to the tariff rates to and from such point applicable on a shipment terminating at and on a shipment originating at such point, plus all charges previously accrued.

*****

Buie 8. Stopping in Transit. — (a) Except as otherwise provided in Rule 5, if on request of consignor, consignee or owner a car is stopped for orders for the purpose of delivery or diversion or reconsignment or reforwarding prior to the arrival at original billed destination, a charge of $2.97 per car will be made for such service and the point where the car is stopped will be considered the original destination of the freight, and notice will be sent, or given, to the party (at the post office address designated by him) on whose order car is held. If the car is subsequently forwarded from point at which held, the provisions of Rules 10, 11 or 14, as the case may be, will also be applied. The service of stopping as provided in this rule will not prevent one change of destination under the provisions of Rule 5.

* ÍÜ * * *

Bule 10. Diversion or Beconsignrmnt to Points Outside Switching Limits Before Placement. — -If a car is diverted or reconsigned on orders placed with local freight agent, or other designated officer, after arrival of the car at billed destination, but before placement for unloading, the through rate (Rule 2) will be applied and a charge of $6.93 per car will be made for such service.

Exception No. 1. — No diversion or reconsignment charge will be assessed when the combination of tariff rates applicable on a shipment terminating at and on a shipment originating at the point of diversion or re-consignment is applicable to the shipment.

$ $ $ $ $

Bule 12. Diversion or Beconsigwment to Points Outside Switching Limits After Placement. * * * If a car has been placed for unloading at original billed destination and is forwarded therefrom without being unloaded to a point outside of the switching limits, it will be subject to the tariff rates applicable on a shipment terminating at and on a shipment originating at the point of diversion or reconsignment (See Exceptions 1, 2, and 3).

Exception No. 1.— * * * If a car has been placed for unloading on a public delivery track, but has not been unloaded or accepted by consignee or owner, it will be considered as not having been placed for unloading and will be subject to the provisions of Rule 10.

* * ❖ * *

Exception No. 8. — On Petroleum and Petroleum Products, Amyl Acetate * * * IN TANK CARS, placed for unloading, ON PRIVATE SIDING- at original billed destination and reforwarded tlierefrom without being unloaded to a point outside of the switching limits, the through rate (Rule 2) will be applied plus a charge of $6.93 per car, plus switching or other charges applicable under these rules * * *.

36. While C & O Freight Tariff 2418-H was in effect and at the time AAR Section 22 Quotations 31, 40, and 40-A covering' storage-in-transit privilege at the Oyster Point Back-up Storage Depot were under negotiation with defendant, it was never stated or suggested, that the tariff would have application to shipments stored at the depot so as to protect the through rate. There is some evidence that 2418-H was considered and rejected by defendant’s representatives at Newport News as having no application by reason of the delivery of cars to defendant at the storage depot. Defendant was aware of 2418-H and used it frequently at Newport News to reconsign and divert shipments of ammunition as well as other commodities.

37. Army Regulation No. 55-155, issued on November 27, 1942, covers the Transportation of Public Property (Except Animals) and Remains. Section VIII of AR 55-155 is entitled “Reconsignment, Diversion, Tracing, and Expediting.” Paragraph 39 of Section VIII provides;

When permissible. — A carload shipment of supplies may be reconsigned or diverted to a new consignee or another destination, when necessary, and when—

a. the shipment is still in transit.

b. having arrived at destination, the shipment has not yet been removed from the carrier’s possession.

Paragraph 41 of Section VIII provides:

How accomplished. — a. Written instructions to carrier. — Written instructions directing the reconsignment or diversion will be given the proper representative of the carrier who has physical charge of the shipment at that time.

38. Two witnesses, Bailes and Cowling, testified that they had never known of a single instance of plaintiff allowing a shipper storage-in-transit privileges at the through rate under a diversion and reconsignment tariff when the storage-in-transit took place on tracks which did not belong to the carrier.

39. In 1947 defendant instituted a proceeding before the Interstate Commerce Commission against plaintiff and the other Class I railroads complaining that the failure of these carriers to provide storage-in-transit privilege at Oyster Point and other storage depots in commercial tariffs, rather than by means of Section 22 Quotations, was unreasonable and in violation of Section 1 of the Interstate Commerce Act. Reparations were sought. In its complaint, defendant alleged (Par. VIII) :

. . . application of the export rates to this complainant’s traffic destined to overseas points, temporarily stopped and stored at storage-in-transit points, was precluded by reason of the fact that no provision was made in or with respect to the tariffs naming the export rates for storage-in-transit at interior points where depots, warehouses and other storage facilities were so established by this complainant.

In February 1955, the Interstate Commerce Commission dismissed the petition. United States v. Aberdeen & Rockfish RR Co., et al. (Dkt. 29735) 294 I. C. C. 5. Specifically, the Commission held (at p. 57) :

We find that the defendants did not violate the Interstate Commerce Act in anything done or omitted with respect to rates and charges on the complainant’s shipments which were stored-in-transit.

Petition for reconsideration was denied on January 9, 1956.

40. The parties have stipulated, at a pretrial conference, that should plaintiff prevail in this suit, it will be entitled to recover from defendant $47,914.64; and that should judgment be for defendant, plaintiff will be entitled to recover from defendant $360.02.

CONCLUSION 03? LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and it is therefore adjudged and ordered that it recover of and from the United States forty-seven thousand nine hundred fourteen dollars and sixty-four cents ($47,914.64).

1 These shipments, although billed to Newport News, were delivered to the depot pursuant to instructions by defendant’s representatives that, unless notified to the contrary, all such cars were to be diverted to the Oyster Point Depot. These instructions, which were followed by plaintiff, were never reduced to or confirmed in writing.

2 Normal procedure would have required the surrender of Inbound bills of lading and the Issuance of outbound bills at Oyster Point. At the request of defendant this requirement was dispensed with, and transportation charges, otherwise payable at the depot, were permitted to follow the cars to the port for collection. This practice was later reduced to writing through amendments to AAR 40-A and C & O No. 8, discussed infra.

3 References are to C & O Freight Tariff 2418-H, quoted In pertinent part In finding 35.

4 It Is of interest to note the Inconsistency In defendant’s position on the matter now before this court. In 1947 defendant argued before the Interstate Commerce Commission that the failure of plaintiff and other Class I railroads to provide a storage-in-translt privilege, at Oyster Point and other storage depots, in commercial tariffs, rather than by Section 22 Quotations, was unreasonable and violated section 1 of the Interstate Commerce Act, and therefore defendant was entitled to reparations. The Government there alleged in its complaint (Par. VIII) :

“* * * application of the export rates to this complainant’s traffic destined to overseas points, temporarily stopped and stored at storage-in-translt points, was precluded by reason of the fact that no provision was made in or with respect to the tariffs naming the export rates for storage-in-transit at Interior points where depots, warehouses and other storage facilities were so established by this complainant.” [Emphasis supplied.]

In February of 1955, the Interstate Commerce Commission dismissed the petition, holding:

“We find that the defendants did not violate the Interstate Commerce Act in anything done or omitted with respect to rates and charges on the complainant’s shipments which were stored-in-transit.” [United States v. Aberdeen & Rochfish RR Co., et al., 294 I. C. C. 5, 57.]

A petition for reconsideration was denied on January 9, 1956.

5 Observe the pertinent language in Woodward & Son v. Southern Ry. Co., 156 I. C. C. 354 at 356-357:

“At the time that contract was made and entered into, and so long as the shipment was in the Barrier’s possession thereunder, the contract was subject, not only to all applicable provisions of law, but also to all applicable tariff provisions, including those of the reconsignment tariff, and to an exercise of the shipper’s right under that tariff. In contemplation of law, all such provisions were part of the contract itself. Unless in fact and in law terminated by acceptance of delivery and removal of the shipment from the carrier’s possession under the inbound billing, properly to be accompanied by payment of the transportation charges then and there due and payable, such a contract is subject to extension by amendment in some appropriate form pursuant to the provisions of the reconsignment tariff.” [Emphasis supplied.]

6 In Reconsignment Case, 47 I. C. C. 590, at 625, the principle is stated as follows:

* * a car which has been placed for unloading at its original billed destination has in fact been delivered. A subsequent movement might therefore be properly regarded as a reshipment.”

7 Any doubt as to the purpose to be served by the Oyster Point Back-up Storage Depot was resolved by statements of defendant’s own representatives. Thus, in his letter, dated July 18,1942, to the Vice-President of the Association of American Railroads, W. J. Williamson, Chief of the Traffic Control Division, Office of the Chief of Transportation, War Department, after sketching the transportation problem then confronting the Department, made the following remarks:

“It is requested that the nation’s carriers provide storage-in-transit privileges at the various ammunition depots and arsenals throughout the united States, which will allow movement inbound on the local rate, storage at the transit point for a period not to exceed two years, and shipment outbound to both inland destinations and ports for export at the balance of the joint through rate plus transit charge * * [Emphasis supplied.]

More specifically directed to the situation we are here reviewing was the letter of August 10, 1942, from Lt. Col. H. M. Tourville, Chief of the Freight Branch of the Office of the Chief of Transportation, to plaintiff’s Freight Traffic Manager. There it was said :

“In connection with the operation of the Hampton Roads Port of Embarkation, a storage plant for ammunition is under construction at Oyster Point, Va. This storage plant will he used for the storage of ammunition under the following circumstances:

“1. For storage of ammunition, which has failed to make a sailing, and is moved back to the storage plant for safe storage awaiting arrival of a suitable vessel.

“2. For storage of ammunition, originally consigned to the port, but reconsigned in transit to the storage plant because ship space was found to be unavailable after the shipment left point of origin.” [Emphasis supplied.]

• » » • *