Great Northern Railway Co. v. United States

170 Ct. Cl. 188, 1965 U.S. Ct. Cl. LEXIS 89, 1965 WL 8324
CourtUnited States Court of Claims
DecidedApril 16, 1965
DocketNo. 71-60
StatusPublished
Cited by3 cases

This text of 170 Ct. Cl. 188 (Great Northern Railway Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Great Northern Railway Co. v. United States, 170 Ct. Cl. 188, 1965 U.S. Ct. Cl. LEXIS 89, 1965 WL 8324 (cc 1965).

Opinion

Dureee, Judge,

delivered the opinion of the court:

Plaintiff, a common carrier by railroad, seeks to recover $47,035.01 in freight charges for transporting a number of carload shipments of military poison gas (lewisite and mustard gas) for defendant from origins in Colorado, Arkansas, Utah and Alabama to Mukilteo and Tulalip, Washington, during the period January 9,1943, through October 17,1944.

During this period, plaintiff and its connecting carriers, at defendant’s request, performed the rail transportation services for defendant herein involved by moving certain articles described on Government bills of lading, variously, as follows:

Gas, Compressed, NOIBN, Poison (Lewisite, Ml)
Gas, Compressed, NOIBN, Poison (Toxic-Gas, HS)
Gas, Compressed, NOIBN, Poison (Toxic-Gas, Ml)
Mustard Gas
M-l Poison Gas
Gas, Poison, NOIBN, Mustard (H)

As stated by defendant in its brief, these articles were “mustard and lewisite.” The bills of lading recited that “poison gas” placards or labels were applied to the cars and shipping containers in which the above-described commodities moved. [190]*190Several of the bills of lading also stated that military personnel, consisting of one officer and several enlisted men, were to accompany the shipments. One bill of lading stated that 2 officers and 10 enlisted men were to accompany the shipment. This was done in order to insure safety of handling, with particular reference as to having someone in attendance with knowledge of the dangerous propensities of the commodity shipped in case of an accident. The shipments were all made in steel cylinders 81 inches long and 30 inches in diameter, weighing 1,600 pounds empty and 3,000 to 4,000 pounds filled.

Defendant is attacking the application to these shipments of a rating of 65 percent of first class published on “poison gases” in Amendment 6 to Association of American Railroads Section 22 Quotation 14, without land grant deduction. Defendant also asserts the inapplicability of plaintiff’s alternate rate basis consisting of class one (later class 3) named in Item 21025 of Consolidated Freight Classification 15 for “gases, compressed, noibn, poison, in steel cylinders” with land grant deduction. Plaintiff seeks to recover either of these rate bases, whichever results in the lower charge. The Trial Commissioner has found that under either of these two rates the sum of $47,035.01 would be due plaintiff.

Amendment No. 6 to A.A.R. Section 22 Quotation 14 — A, effective November 9,1942, provided a rating of 65 percent of first class without land grant deductions on “gases, poison.”

The General Accounting Office has discovered what it regards as a flaw in the application of the quotation rating on “poison gas” to shipments of mustard gas and lewisite. It points out that both lewisite and mustard gas, as shipped, were liquids and cannot therefore be considered “gases” within the meaning of the quotation rating on “poison gases.” The same argument is made with respect to plaintiff’s alternate rating named in Item 21025 of Consolidated Freight Classification 15.

Mustard gas and lewisite are liquids at ordinary temperar ture and atmospheric pressure. Unlike such toxic warfare agents as phosgene and chlorine gas, which are in an aerified state at normal temperature and atmospheric pressure, mustard gas and lewisite need not be subjected to pressure to be reduced to a liquid.

[191]*191Mustard gas (known to the chemist as dichlorodiethylsul-fide) is a colorless (if pure) to yellow or brown oily liquid. Its low volatility and vapor pressure give rise to its> per-sistency, a desirable characteristic of toxic warfare agents. Because of its persistency, it is used as a military defense weapon to prevent the occupation by hostile forces of ground evacuated on withdrawal. It is dispersed over an area in aerosol form by action of an explosive burster in the bomb or shell in which it is loaded.

Lewisite (chorvinyldichlorarsine) is a colorless light amber liquid. It is similar in use and effect to mustard gas and, like mustard, is classed as a vesicant gas, meaning that it produces inflammation, blistering, 'and destruction of human tissue. Unlike mustard, lewisite contains arsenic and is therefore a systemic poison as well.

Both mustard gas and lewisite, although liquids, are by common meaning and usage, particularly in defendant’s toxic warfare services, known as “gases.” The Trial Commissioner found that “by long and well-established tradition in the Chemical Warfare Service, all chemical agents, regardless of their physical state, are known as ‘gases.’ ” His finding is clearly supported by the following evidence:

Both mustard gas and lewisite are used as “war gases” which are defined in defendant’s technical manuals as a “chemical, irrespective of its physical state, whose toxic properties may be effectively exploited in the field of war.” One of the definitions in Webster’s New International Dictionary defines “gas” as follows: "Any substance, whether gaseous, liquid, or solid under ordinary conditions', used to produce a poisonous or irritant atmosphere, as in the World War.” [Emphasis added.] A technical dictionary refers to mustard gas as a “deadly vesicant war gas.” Under Interstate Commerce Commission’s regulations effective January 7, 1941, rail cars containing lewisite and mustard gas bad to be placarded “poison gas,” and a “poison gas” label applied to the exterior of mustard gas and lewisite containers. The reason liquid warfare agents are known as “gases” is explained by the history of such agents set forth in defendant’s Technical Manual TM 8-215: “The first war gases were literally gases — that is, they were in a gaseous state; hence the origin [192]*192of terms such as ‘gas warfare’ and ‘gas mask.’ ” These terms were short and convenient, and continued in use even after introduction of toxic liquids and solids such as nmstard (which is a liquid at ordinary temperatures), and vomiting gases (which are finely divided solid particles). * * * [Emphasis supplied.] To the chemist, “poison gas” is a misnomer if applied to mustard (or mustard gas), and “liquid blister gas” is a contradiction of terms. In its war application, however, “poison gas” (or even “gas”) is a specialized military term, sanctioned by long usage in Department of the Army and Chemical Warfare Service publications. The designation “mustard gas’'’ for a liquid warfare agent established that the term “gas” in common usage applies to toxic warfare agents regardless of their physical state. Defendant’s own expert on toxic warfare agents testified that mustard “is called a gas by tradition.” He referred to mustard as “mustard gas, notwithstanding the fact that it is a liquid.”

Item 21025 of Consolidated Freight Classification 15 named a carload rating of first class and later third class on “gases, compressed, noibn, poison in steel cylinders.” Plaintiff seeks to apply this rating, less land grant deduction, alternatively with the Quotation 14 rating on “poison gases” without land grant deduction, whichever basis produces the lower charge. Actually, the rate claimed by plaintiff in this case is the same under either alternative.

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Related

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Bluebook (online)
170 Ct. Cl. 188, 1965 U.S. Ct. Cl. LEXIS 89, 1965 WL 8324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-northern-railway-co-v-united-states-cc-1965.