
    LEHIGH VALLEY RAILROAD COMPANY, A CORPORATION v. THE UNITED STATES
    [No. 49897.
    Decided April 3, 1957.
    Plaintiff’s motion to vacate the judgment overruled June 5, 1957]
    
      
      Mr. Richard D. Ldlanne for the plaintiff. Messrs. B. J. Viviano and M. R. Warnock were on the brief.
    
      Mr. Paris T. Houston, with whom was Mr. Assistant Attorney General George Gochran Doub, for the defendant. Mr. Lewis A. Dille was on the brief.
   Opinion

per curiam;

This case was heard by the Honorable Wilson Cowen, a trial commissioner of this court, who rendered a report of his findings of fact. By an order of the court dated February 10, 1956, the court, pursuant to Rule 45 (c), directed Commissioner Cowen to submit recommendations for conclusions of law in the case. He has done so in the form of an opinion giving reasons and citing precedents. The court adopts the opinion and conclusions of Commissioner Cowen which are printed below and plaintiff’s petition is dismissed and judgment is entered for the defendant on its counterclaim in the sum of $15,395.26.

OPINION BY THE COMMISSIONER

During September, October, November and December 1942, the defendant shipped 238 cars of ammunition over the lines of plaintiff and its connecting carriers. The shipments were intended for export overseas from New York Harbor, but they were not originally consigned for export. Instead, they were consigned to the Baritan Arsenal at Nixon, New Jersey, which the Government used during the war period, both as a storage and shipping depot from which the ammunition was moved on barges to ships in New York Harbor, and as a control point for ammunition moving by rail to Caven Point Terminal on the New Jersey Shore, where the ammunition was loaded aboard ships and exported to foreign countries. The 238 cars were included in plaintiff’s trains with cars containing other commodities consigned to the Perth Amboy, New Jersey, area, and were hauled by plaintiff to its Perth Amboy yards, which it used as a breakup and classification yard for cars containing freight consigned to Perth Amboy and Nixon. Plaintiff had previously delivered ammunition cars to the arsenal after first transporting them to the Perth Amboy yards, where the ammunition cars were separated from other cars in plaintiff’s trains, but in July 1942, plaintiff was instructed not to deliver any more ammunition cars to the arsenal without first supplying requested information regarding each car and to hold the cars until the defendant gave disposition instructions. While the cars were held for orders short of destination at Perth Amboy, defendant diverted and reconsigned them to Caven Point Terminal at Jersey City, where the ammunition was loaded aboard ships for export to foreign countries. To make delivery at Caven Point, it was necessary for plaintiff to backhaul the cars from its Perth Amboy yards over its Perth Amboy Branch to its main line at South Plainfield, and thence eastward to plaintiff’s railroad station at Caven Point.

The question to be decided is whether the freight charges should be computed on the basis of a combination of rates from the various points of origin to Perth Amboy and from Perth Amboy to Caven Point, pursuant to the provisions of plaintiff’s Special Services Tariff, or whether such charges should be computed at the through export rate from the points of origin to final destination, plus reconsignment charges, pursuant to the provisions of Curlett’s tariff.

The diversion and reconsignment of railway freight is a practice widely followed and required in the conduct of modern business. Since it gives the shipper the advantage of fluidity and regularity of movement and often enables the carrier to relieve terminal congestion by holding the freight at points short of terminals, it is regarded as a commercial necessity. Consequently, it is a common practice for carriers to hold cars short of the billed destination upon the shipper’s order and to permit reconsignment to a new destination upon payment of the through rate, plus a reconsignment charge, and such demurrage or storage charges as may be specified in the applicable tariffs. Detroit Traffic Association v. L. S. & M. S. RR. Co., 21 I. C. C. 257; Central Commercial Co. v. L. & N. RR. Co., 27 I. C. C. 114.

Plaintiff’s Special Services Tariff, in effect during the time involved here, sets forth the rules and charges that are generally applicable to the diversion and reconsignment of freight on plaintiff’s lines, but that tariff specifically provides that it does not apply when diversion or reconsignment is made under the rules contained in Curlett’s tariff.

Curlett’s tariff states that its rules and charges apply to a list of designated stations, docks, and terminals on both the New York and New Jersey sides of New York Harbor. One of the stations so listed is “New York Harbor, N. Y.”, and for explanation of this designation there is a reference to Items 515 and 520, which define the location of New York Harbor as the area within the free lighterage limits and extra towage limits prescribed in Rules A-20 and A-80 of the same tariff. Rule A-20, contained in Supplement 1 of Curlett’s tariff and in effect at the time these shipments were made, specifies the free lighterage and floatage limits of New York Harbor and states that these limits include Perth Amboy, New Jersey, on Staten Island Sound. Since the reconsignments here were made at Perth Amboy, New Jersey, Curlett’s tariff is clearly applicable to the shipments in suit. Plaintiff’s argument that this tariff is inapplicable, because plaintiff had no arrangements for providing lighterage service at Perth Amboy and because Curlett’s tariff prohibited the lighterage of ammunition, is untenable. Items 515 and 520 and other provisions in the tariff make it clear that the tariff applies to freight which is not to be lightered as well as to that for which lighterage is to be furnished.

Rule A-30 of Curlett’s tariff sets forth the charges and conditions under which eastbound freight may be reconsigned and diverted, and Item 2663 of the rule states in explicit and unambiguous language that the export rate (the same rate charged when the freight is originally consigned for export), plus a specified reconsignment charge, applies to eastbound freight not originally consigned for export, provided it is ordered for export after the shipment arrives at points named in Note 16 of the tariff and provided further that the shipment has not passed from possession of the carrier. It is undisputed that the 238 cars in suit were eastbound freight and that they remained in the possession of the carrier from the dates of shipment until deliveries were made at Caven Point. Note 16, referred to in the above-mentioned rule, states that the points thereby covered are “South Plainfield, New Jersey, and east thereof.” Plaintiff contends that this provision of the tariff can only be construed to apply to points on its main line running directly through South Plainfield to its New York Harbor stations. A similar contention made with respect to tariff provisions comparable to those stated in Note 16 quoted above was rejected by the Interstate Commerce Commission in James B. Berry Sons’ Co. v. B. & O. RR. Co., 140 I. C. C. 406. There a shipment of petroleum was made from West Alexander, Pennsylvania, to Bradford, Pennsylvania, and the shipper claimed the benefit of rates in a tariff providing that Bradford was a destination to which the Rochester rates applied in connection with the following reference:

Bases herein provided will apply only from points on the Baltimore <& Ohio Railroad (in Ohio, Indiana, and Illinois, also points in Pennsylvania west of Gallery, Pa.)

West Alexander is 52.8 miles west of Pittsburgh, Pennsylvania, on a Baltimore & Ohio line running southwesterly from Pittsburgh to Wheeling, West Virginia, while Callery is 30.5 miles west of Pittsburgh on another line of the Baltimore & Ohio running northwesterly from Pittsburgh to Youngstown, Ohio. West Alexander is some distance west of a north and south line drawn through Callery. In holding that West Alexander is geographically west of Callery and that the shipper was entitled to the rate applicable to points west of Callery, the Commission said:

* * * Defendants contend that the language of that restriction unmistakably implies that the points west of Callery, in order to be entitled to this rate, must also be upon the same line that passes through that point.
We have repeatedly found that where there is a_ reasonable doubt as to the meaning of a tariff provision it should be resolved against the maker and.in favor of the shipper. If the carriers desired to restrict this rate so that it would apply only from points located west of Callery on the line of the Baltimore & Ohio passing through Callery, it could have been done in clear and unequivocal language.

As stated in finding 4, Perth Amboy is east of a line running north and south through South Plainfield and is, therefore, geographically east of South Plainfield.

In support of its position, plaintiff has cited Red Cedar Shingle Manufacturers’ Association v. C. B. & Q. RR. Co., 411. C. C. 422, and other decisions to the same effect, including Northern Brokerage Company v. Director General, 60 I. C. C. 182. These cases held that, in the absence of special tariff provisions, the through rate authorized by a recon-signment tariff cannot be protected where the reconsignment is effected at a point not on the through route to which the rate applies or where a backhaul is made. After considering the provisions of the tariffs involved here and the facts and circumstances under which the defendant’s shipments were reconsigned, it is concluded that these shipments fall witbin. recognized exceptions to the principle announced in Bed Gedar. In the first place, a comparison of the provisions in plaintiff’s Special Services Tariff with those in Curlett’s tariff demonstrates that, whereas the former tariff precludes the shipper from receiving the benefit of the through rate where the reconsignment involves a backhaul and also names stations and points on branch lines that will be considered directly intermediate to the main line for the purpose of protecting the through rate, Curlett’s tariff makes no mention of backhauls, nor does it limit the application of the through rate to reconsignments based on directly intermediate points. Litman & Ossep v. Director General, 88 I. C. C. 199.

In the second place, Item 2663 of Rule A-30 of Curlett’s tariff provides express authorization for reconsignment after the shipments have arrived at points named in Note 16. Since Perth Amboy, the point of reconsignment, is one of the points named in Note 16, it must be concluded that the framers of the tariff intended to authorize the application of the through export rate where reconsignment is made at such a point despite the necessity of a backhaul.

Moreover, the principle announced in Bed Gedar and other cases based thereon does not apply when the out-of-line movement or the backhaul is made for the convenience of the carrier. Included within this category is the handling of shipments that are not reconsigned in the same way as those which are reconsigned. Also included are out-of-line hauls which become necessary because of the carrier’s movement of the cars to a classification yard. Railroad Operating Practices, 209 I. C. C. 775. The facts here show that the ammunition shipments made prior to July 1942 and not reconsigned were first transported by plaintiff to the Perth Amboy classification yard before delivery was made to the arsenal and that the carrier followed the same operating practice with respect to the shipments in suit that were thereafter reconsigned. The ammunition cars that were reconsigned, as well as those that were not, were included in trains with other cars containing goods to be delivered at Perth Amboy. Some of the other cars carried coal and oil to be transshipped from that location. Curlett’s tariff contemplated that eastbound shipments could be reconsigned after arriving at South Plainfield or at any point east thereof, but because of the heavy wartime traffic, plaintiff’s Perth Amboy yard was the only available area for the holding and storage of the shipments pending reconsignment. The Pennsylvania Railroad Company, which handled as many of the ammunition shipments as were transported by plaintiff, also followed the practice of holding the shipments consigned to Nixon short of destination until they were diverted to Caven Point.

Although defendant knew that the ammunition cars were being held at Perth Amboy, the defendant did not direct or instruct the plaintiff to hold them at that point. After the “hold-for-orders” instructions were issued in July 1942, plaintiff continued to move the ammunition cars to the Perth Amboy yards with the knowledge that most of them would be reconsigned to Caven Point. Although a backhaul of approximately eight miles from Perth Amboy to South Plainfield was required for the reconsigned shipments, a backhaul of about seven miles to Nixon was also necessary for those not reconsigned. '(

A readily understandable explanation of the fact that the reconsignment privileges and rates provided for in Curlett’s tariff are considerably more favorable to shippers than those authorized in plaintiff’s Special Services Tariff is found in the unique situation existing in the New York Harbor area. As pointed out in the Lighterage cases, 203 I. C. C. 481 and in State of New Jersey v. B. & O. RR Co., 245 I. C. C. 581, more than twice as much tonnage is exported annually through the port of New York than through the ports of Baltimore, Philadelphia, and Boston combined. The port is served principally by seven trunk line railroads extending to the west. These carriers include plaintiff and other railroads which are parties to Curlett’s tariff. Because of the highly competitive situation, the rates on line hauls of 100 miles or more to all points in the New York Harbor area are the same regardless of whether the deliveries are made at the New Jersey terminals of the carriers or whether the shipments are lightered across the harbor. In view of the extensive area covered by New York Harbor (defined in Curlett’s tariff), the competing carriers backhaul traffic in many instances in order to make deliveries at their New Jersey terminals. For example, the Erie Railroad Company backhauls traffic from its branch lines for distances as' great as 49 miles from its terminals.

Plaintiff points to the general waybilling instructions contained in Items 1400 and 1410 of Curlett’s tariff and urges that, since these shipments were originally waybilled to Nixon instead of to Caven Point, Curlett’s tariff does not apply to the shipments in issue. If this contention were correct, the reconsignment rules of the tariff would be meaningless. However, it is apparent from a casual study of Rule A-30 that one of the principal reasons for its inclusion in the tariff is to establish reconsignment charges for freight not originally consigned nor waybilled to the designated stations, terminals, and docks in the New York Harbor area.

Waybills are documents which are prepared by the carrier’s agents. The provisions contained in Items 1400 and 1410 constitute instructions to the carrier’s agents for the preparation of waybills on shipments moving both prior to and after reconsignment. These provisions are not to be interpreted as imposing such a limitation or restriction on the reconsignment rules. It is well settled that waybills are mere incidents of transportation and do not determine the nature of the service (Western Meat Co. v. Director General, 78 I. C. C. 77), and that neither the manner of waybilling nor tariff provisions are conclusive as to whether the movement is separate or through, Sinclair Refining Co. v. Fort Worth and Rio Grande RR. Co., 148 I. C. C. 582.

As an alternative contention, the defendant urges that Item 2110 of Curlett’s tariff is applicable and that, under the provisions thereof, defendant is entitled to the benefit of the through rate without the payment of the reconsignment charges. It is unnecessary to discuss this contention at length, because both the title and the provisions of Item 2110 show that it is inapplicable to the shipments in suit. The same is true of Item 2045-A, which is relied upon in part by defendant in support of its primary position.

It is recommended that the court conclude as a matter of law that plaintiff is not entitled to recover and that defendant is entitled to recover the sum of $15,395.26 on its counterclaim.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Wilson Cowen, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, and now is and was during all the times hereinafter mentioned, engaged as a common carrier by railroad in the transportation of passengers and freight for hire in interstate and intrastate commerce.

2. Plaintiff’s lines of railroad connect with the lines of other common carriers by railroad engaged in interstate and intrastate commerce, and at all times hereinafter mentioned, the rates and charges for the transportation services of plaintiff and its connecting carriers were duly published in tariffs lawfully on file with the Interstate Commerce Commission.

3. During 1942 the defendant shipped many cars of ammunition over the lines of the plaintiff and its connecting carriers. The shipments moved from various origins in the United States and were consigned to the commanding officer of the Raritan Arsenal at Nixon, New Jersey. Included in these shipments were 238 cars of ammunition (classified as A, B, or C explosives in the applicable tariffs), which were shipped during the months of September, October, November and December 1942.

4. All of the 238 cars moved eastbound on plaintiff’s main line to South Plainfield, New Jersey, where they left the main line and were transported by plaintiff to Perth Amboy, New Jersey.

Perth Amboy is an agency station located at the southeastern extremity of plaintiff’s Perth Amboy Branch which runs southeasterly from South Plainfield to Perth Amboy. Nixon is a nonagency station on plaintiff’s Raritan River Branch which begins at Raritan Junction, a point on the Perth Amboy Branch, and runs in a westerly direction for about six miles to the Raritan Arsenal. Raritan Junction is situated approximately one mile west of the eastern terminus of the Perth Amboy Branch. The location of plaintiff’s main line, tbe two branch lines, and the stations referred to above are shown on plaintiff’s exhibit 1 and defendant’s exhibit 5 which are made a part hereof.

Both Perth Amboy and Nixon are located east of a line running north and south through South Plainfield.

5. East of and adjacent to its Perth Amboy Branch, there were two holding or storage yards on plaintiff’s lines. The upper yard was about eight miles from South Plainfield and was about one mile east or southeast of Baritan Junction. The other or lower yard was located approximately one mile east of the upper yard or nine miles from South Plainfield. This yard was situated near plaintiff’s coal docks on Arthur Kill (Staten Island Sound) near the southern tip of Staten Island.

South Plainfield, a small town, is a suburb of Perth Am-boy, which in 1942 had a population of about 60,000.

6. The upper and lower yards at Perth Amboy were utilized by plaintiff as the breakup and classification yards for inbound trains containing freight consigned to points on its Baritan Biver and Perth Amboy Branches.

Perth Amboy was the point of transshipment by water of coal in barges and of oil in tankers. During the period pertinent to this action, it also had many war plants which were operating at full capacity. At all times material to this action, the Baritan Arsenal was utilized by the defendant as a backup storage and control point for ammunition destined for export through the New York Port of Embarkation.

7. Prior to July 1942, plaintiff’s trains transporting the ammunition cars and other cars consigned to points on the Perth Amboy and Baritan Branches moved from plaintiff’s main line at South Plainfield down the Perth Amboy Branch and beyond Baritan Junction to the breakup and classification yards at Perth Amboy, where the cars were classified and separated according to consignees. After the ammunition cars were separated from the other cars, plaintiff transported them back up the Perth Amboy Branch to Baritan Junction and thence on the Baritan Biver Branch to Nixon. At Nixon near the entrance to the arsenal, the defendant had a receiving yard where the ammunition cars were delivered to it. The defendant’s receiving yard was located approximately seven miles from plaintiff’s upper Perth Amboy yard and about six miles west of Raritan Junction. Raritan J unction is approximately seven miles southeast of South Plainfield.

The Raritan Arsenal was located on the Raritan River, but there were no docks at that point for loading oceangoing ships. Upon receiving the cars from the plaintiff at the arsenal, the defendant took charge of them and loaded the ammunition on barges in the Raritan River. The barges then transported the ammunition to New York Harbor, where it was loaded aboard oceangoing ships for export to foreign countries. In this way, thousands of tons of ammunition were moved from the arsenal in the New York Harbor for shipment abroad.

8. In July 1942 the volume of ammunition traffic into the Raritan Arsenal increased to the extent that it was physically impossible to accommodate all the cars consigned to Nixon, New Jersey, on the tracks located within the arsenal. Thereupon, the Senior Traffic Officer at the arsenal telephoned plaintiff’s agent at Perth Amboy and directed that plaintiff hold all cars consigned to the arsenal for further orders. Plaintiff’s agent was also instructed to notify the arsenal by telephone each day of the arrival of each shipment by supplying information as to the car number, point of origin, shipper, commodity, and weight of each car. Plaintiff’s agent complied with the instructions by furnishing telephonic advice as to the arrival of the cars consigned to the arsenal and, in addition and in conformity with traffic regulations, the agent sent the defendant’s transportation officer at the arsenal written notices covering each car. These notices listed the cars under the heading “Cars Held for Orders.”

9. Waybills accompanied each car moving into the Perth Amboy yards, and when the cars arrived the waybills were delivered to plaintiff’s yard office at Perth Amboy. Plaintiff’s yard clerk made a track check to determine that the cars had arrived in Perth Amboy and then stamped each waybill to show the date and time each car had arrived and whether it was held in the upper or lower yard at Perth Amboy.

10. Upon receipt of the arrival notices, the defendant ordered some of the cars to be delivered to the arsenal. The defendant ordered plaintiff to divert other cars and had them reconsigned to the Transportation Office, New York Port of Embarkation, Caven Point, Jersey City, New Jersey. Caven Point Terminal, which is located about 27 miles east of South Plainfield, was the railhead delivery point for ship-loading of ammunition. Jersey City (National Docks), New Jersey, is the plaintiff’s railroad station at Caven Point.

The defendant’s transportation officer at Baritan Arsenal was responsible for the movement of explosives in and out of the arsenal and was also charged with the duty of working with the New York port authorities in the movement of ammunition cars into Caven Point Terminal in such a way as to avoid congestion at that installation.

11. In July 1942, when the defendant issued the above-described “hold for orders” instructions to plaintiff, the defendant did not instruct or request plaintiff to hold the cars at Perth Amboy or at any other specified point, but plaintiff continued to ship the cars to Perth Amboy in the same manner as had been done prior to the time the instructions were given.

Plaintiff had storage tracks adjacent to its main line at South Plainfield, but during the period from July 1942 until the end of that year, these tracks were being utilized, at the request of the Army, for the storing and unloading of cars carrying lumber for the construction of Camp Kilmer. On account of the unusually heavy wartime traffic, there were no other holding yards or storage tracks available for storing the ammunition cars on plaintiff’s main line between South Plainfield and its railroad station , at Caven Point. The only space available for holding such cars was in the yards at Perth Amboy. In 1943 the Pennsylvania Bailroad Company installed new facilities at Camp Kilmer, and space became available on the holding tracks at South Plainfield. At about the same time, the people of Perth Amboy began to complain about the storage of explosives near the residential areas of the city, and thereafter, in 1943, some of the ammunition cars consigned to the Baritan Arsenal were stored there.

It would have been satisfactory to defendant’s transportation agent if tbe cars bad been stored at South Plainfield instead of at Perth Amboy, but he was aware of the fact that the cars were actually being held in the yards at Perth Amboy.

12. Approximately 90 percent of the shipments of ammunition originally consigned to the arsenal at Nixon were diverted and reconsigned to the Caven Point Terminal. By the time the cars in suit were shipped, plaintiff knew, from its previous experience in handling the cars, that most of them would be reconsigned to Caven Point. However, plaintiff had no way of knowing in advance which cars or group of cars would be ordered into the arsenal at Nixon and which would be diverted and reconsigned to Caven Point.

13. As previously stated, all of the 238 cars of ammunition in issue were consigned to the “Commanding Officer, Earitan Arsenal, Nixon, New Jersey.” They were not consigned for export, but the information shown on the bills of lading indicated that the explosives were to be exported. The “Marks” column of the bills of lading showed that the packages were marked

foe:
POET TRANSPORTATION
OFFICER, NEW YORK
PORT OF EMBARKATION
BROOKLYN, NEW YORK.

Many of the bills of lading were also stamped “for export.”

14. All of the cars involved in this action moved from western origins over the lines of various carriers, including plaintiff, to South Plainfield on plaintiff’s line and were then transported to the Perth Amboy yards where, after being separated from other cars, they were stored for varying periods of time. While in storage at Perth Amboy they were diverted on orders of the defendant from the original destination and reconsigned to the Port Transportation Office, New York Port of Embarkation, Caven Point, New Jersey. The promptness with which the cars were diverted depended on the availability of shipping space at Caven Point. In some instances, the defendant’s transportation officer ordered cars diverted to Caven Point as soon as he received notice of the arrival of the cars at Perth Amboy. In other instances where ships were not available, the cars remained in storage at Perth Amboy for several days before being sent to Caven Point.

None of the cars was unloaded at Perth Amboy nor was any of them delivered at the original destination, Nixon, New Jersey. They remained in the possession of the plaintiff at all times until delivered to the defendant at the Caven Point Terminal. The diversion orders were telephoned to plaintiff’s agent at Perth Amboy, and the telephonic orders were confirmed by written diversion orders, of which plaintiff’s exhibit 4 is typical. Plaintiff then transported the cars from its holding yards back to the main line at South Plain-field and thence over its main line to its breakup and classification yard at Oak Island, Jersey City National Docks, where the ammunition cars were separated from other cars and switched to the Army installation at Caven Point. There the defendant had spur tracks on the docks where the cars were placed and then loaded aboard oceangoing steamers for export to foreign countries. Each car moved under the same bill of lading that covered the shipment consigned to Nixon, but an extra sheet was attached to each Government bill of lading reading substantially as follows:

This shipment diverted to Transportation Officer, Cavens Point Terminal, Jersey City, N. J. on this B/L, December 17, 1942. No other B/L issued to cover the haul from Nixon, N. J. to Cavens Point, N. J.
Authority for diverting: Commanding Ofiicer.
R. T. Hatter
Capt., Ord. Dept.,
Transp. Officer

The diversion orders and bills of lading did not specify the routing by any carrier other than plaintiff between Perth Amboy and Caven Point.

15. The waybills which were prepared by the originating carriers for each of the shipments in issue originally showed Nixon, New Jersey, as the destination, and the commanding officer of the Raritan Arsenal at Nixon, New Jersey, as the consignee. Upon receipt of the diversion instructions, plaintiff’s agent at the Perth Amboy Branch changed each of the waybills by crossing out Nixon and substituting Caven Point as the destination and by crossing out the name of the original consignee and inserting in lieu thereof “Transportation Officer, N. Y. Port of Embarkation, Brooklyn, N. Y.”

16. During the period pertinent to this suit, many ammunition cars were transported from various origins by the Pennsylvania Eailroad to the Earitan Arsenal. Approximately one-half of the ammunition shipments into the arsenal were carried by the Pennsylvania Eailroad and the balance by the plaintiff. It was the usual practice for the Pennsylvania Eailroad to hold the shipments consigned to Nixon at some point on its lines until they were ordered into the arsenal or diverted to Caven Point.

17. On cars originating west of South Plainfield, New Jersey, and consigned for shipment over plaintiff’s line to Caven Point, New Jersey, the line haul movement is over plaintiff’s main line from South Plainfield to plaintiff’s Oak Island breakup and classification yard, where the cars are handled in yard service by plaintiff between Oak Island and Caven Point.

Such shipments originating west of South Plainfield and originally consigned to Caven Point would not regularly move to destination by way of Perth Amboy. Perth Amboy is located on a branch line, and a shipment through South Plainfield by way of Perth Amboy to Caven Point requires an out-of-line haul from South Plainfield to Perth Amboy and a backhaul from Perth Amboy to the main line at South Plainfield. Since the cars in suit were diverted to Caven Point after having been held at Perth Amboy, they had to be backhauled to South Plainfield before proceeding to Caven Point, because there was no other route on plaintiff’s lines by which the cars could be moved to Caven Point.

The diversion and reconsignment of the 238 cars in suit, required the use of more yard and road crews than would have been needed on a main line shipment originally consigned to Caven Point for export and moving from western points directly through South Plainfield to Caven Point. However, the ammunition cars originally consigned to Nixon were usually included with cars carrying other goods in trains arriving in Perth Amboy, where plaintiff classified the ammunition cars, separated them from other cars, and sorted them regardless of whether the ammunition shipments were sent to the arsenal or to Caven Point. Under plaintiff’s operating practices, a backhaul of about seven miles was required for moving the cars from the yards at Perth Amboy to the arsenal, whereas the diversion of the cars involved here required a backhaul of about eight miles to South Plainfield. When the trains containing the ammunition cars destined for Caven Point reached Oak Island, plaintiff had to classify, separate, and switch the ammunition cars there regardless of whether they came from Perth Amboy or from some other point on its lines. The evidence is not sufficient to show what yard and road services plaintiff was required to perform in the handling of the 238 cars in addition to the services that would have been necessary had such cars been held and reconsigned at South Plainfield or at some other point east thereof on plaintiff’s main line.

18. Although the cars in suit were held at Perth Amboy, there is no evidence that Perth Amboy has been utilized as a holding yard for other shipments moving by rail to New York Harbor.

Neither Nixon nor Perth Amboy is within the switching limits of Caven Point.

19. At the time of the shipments in suit, there was in effect Lehigh Valley Railroad Company Freight Tariff I. C. C. No. C-9028, hereinafter referred to as plaintiff’s Special Services Tariff. This tariff published the “rules, regulations, and charges governing special services for the handling of freight traffic from, to, or between points on the Lehigh Valley Railroad Company and from or to points on the Brooklyn Eastern District Terminal New York Dock Railway.” This tariff, which is relied on by plaintiff, contained the following pertinent provisions:

* * * * *
Rule No. 40.
RULES AND CHARGES GOVERNING THE DIVERSION OR RE-CONSIGNMENT OE EREIGHT AND HOLDING OF CARS FOR SURRENDER OE BILLS OE LADING OR WRITTEN ORDERS, OR INSPECTION EXCEPT ON COMMODITIES AS DESCRIBED ON TITLE PAGE
APPLICATION
(A) All carload traffic, including empty equipment on its own wheels when moving on revenue billing, also less carload or any quantity rated traffic as described in Section 15, page 16, except as stated under caption “exceptioNs”, may be diverted or reconsigned, or held for surrender of bills of lading or written orders, or inspection, as provided in Sections 16 and 17, pages 16 to 18, on this line, subject to the following rules, regulations and charges:
$ $ $ $ ‡
DEFINITIONS
The term “Diversion” or “Reconsignment” means:
(a) A change in the name of the consignee;
(b) A change in the name of the consignor (see Section 6, Page 14) ;
(c) A change in the destination (see Section 5, page 14);
(d) A change in the route at the request of the consignor, consignee or owner;
*****
CONDITIONS
The services herein authorized are subject to the following conditions:
% % #
(e) That no back haul is involved except as expressly provided in Section 14, page 16;
^ $ ❖ ‡
SECTION 2
APPLICATION AND FREIGHT RATES
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 Section 5, page 14).
(a) For the purpose of this rule, Buffalo, N. Y., will be considered directly intermediate between Suspension Bridge, N. Y. and points east.
(b) For the purpose of this rule, on carload shipments, Eochester, N. Y., on the Lehigh Valley Eailroad will be considered directly intermediate to the same extent that Eochester Junction, N. Y., Lehigh Valley Eailroad, is intermediate from points of origin to final destination. (Sup. 4 to E. A. 60198).
(c) For the purpose of this rule Black Creek Jet., Pa., to Mount Carmel, Pa., Index Nos. 174 to 246, inclusive, on the Lehigh Valley Eailroad, will be considered directly intermediate to the same extent that Penn Haven Jet., Pa., is directly intermediate from point of origin to final destination. (E. A. 66914).
(d) For the purpose of this rule, Cayuga, N. Y., on the Lehigh Valley Eailroad, will be considered directly intermediate to the same extent that Burdett, N. Y., is intermediate from point of origin to final destination. (Sup. 16 to E. A. 60193).
*****
SECTION 8
STOPPING IN TRANSIT
(a) Except as otherwise provided in Section 5, page 14, if on request of consignor, consignee or owner a car is stopped for orders for the purpose of delivery, or diversion or recon-signment 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 Sections 10, 11 and/or 14, pages 15 and 16, 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 Section 5, page 14.
* * * * *
SECTION 10
DIVERSION OR RECONSIGNMENT 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 (Section 2, page 13) will be applied and a charge of $6.93 per car will be made for such service.
Exception 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 reconsignment is charged.
* * * * *
SECTION 14
BACK-HAUL RULE
(a) Before Placement: If a car is diverted or reconsigned before placement for unloading, the through rate (Section 2, page 13) will be applied from original shipping point to final destination which would apply in the absence of the out-of-line service, plus the applicable rates (or back-haul rates if any), to cover the hack-haul [sic] service in each direction plus charge of $6.93 per car, but not in excess of the full combination of tariff rates applicable on a shipment terminating at and on a shipment originating at the point of diversion or reconsignment without the addition of diversion or reconsignment charge. (See Exception 2).
*****

20. Defendant contends that the shipments in issue are not governed by plaintiff’s Special Services Tariff. However, the parties have agreed that if that tariff is applicable to such shipments, plaintiff would be entitled to recover freight charges on the basis of a combination of rates from the point of origin to Perth Amboy and from Perth Amboy to Caven Point. On that basis, the amount plaintiff would be entitled to recover is the sum of $51,589.56.

21. Plaintiff’s Special Services Tariff contained an “Exceptions” section, which provided that the rules and charges governing the diversion and reconsignment of freight as specified in that tariff would not apply under certain conditions, including the following:

(j) When diversion or reconsignment is made under Rules and Regulations contained in Agent W. S. Curlett’s Tariff L C. C. No. A-620, P. U. C.-N. J. No. A-12, and by supplements to or successive issues thereof.

Defendant contends that Agent W. S. Curlett’s Tariff I. C. C. No. A-720, which is a reissue of Tariff No. A-620, is applicable to the shipments involved here and that under the provisions thereof defendant is entitled to the benefit of the through export rate plus a reconsignment charge on each of the cars from the point of origin to Caven Point. This tariff, hereinafter referred to as Curlett’s tariff(,) published “Lighterage and Terminal Regulations in New York Harbor and Vicinity, Including Rates, Rules, and Charges for Grain, Live stock, and Storage, Deliveries and Handling of Freight between Terminals on Domestic, Import, Export Coastwise and Intercoastal Freight.”

22. Page 27 of Curlett’s tariff shows:

Alphabetical List of Stations at which rules, regulations and charges in this tariff apply. For full information of facilities, deliveries and instructions applying to these stations, see items specified in third column.

Listed below were a number of Lehigh Valley Railroad Company stations in New York and New Jersey, including the following:

Name of Station Railroad Item No.
New York Harbor, New York_L. V. RR_515. 250

Item Nos. 515 and 520 are shown on page 72 of the tariff and read in pertinent part as follows:

23. Rule A-25, referred to in Item No. 515 above, enumerated certain commodities which were not to be contracted for “lighterage free”, and stated that the carriers which were parties to the tariff would not lighter such commodities. Included in the list of excluded commodities were explosives classed as A, B, and C.

The parties have agreed that the shipments in suit were not to be lightered by plaintiff. In addition to the fact that the tariff prohibited the lighterage of explosives, no lighter-age service was requested or furnished in handling the cars, and plaintiff had no arrangements for lighterage service at either Perth Amboy or Nixon.

24. Rule A-20, Supplement No. 1 to Curlett’s tariff, effective September 10,1941, under the heading “Free Lighterage and Floatage Limits in New York Harbor” included the following:

* * * * *
Staten Island Sound:
Points on the New Jersey Shore from the C. of N. J. Main Line (Newark Bay) Bridge, to and including Perth Amboy, N. J., on Staten Island Sound.
$ * % * ifc

25. Under the heading of General Waybilling Instructions, Curlett’s tariff provided on page 123 as follows:

* * * * *

26. Item 2045 on page 26 of Curlett’s tariff read as follows:

GENERAL RULES
Carload Freight Consigned to New York or Brooklyn, N. Y.
Without Designating a Specific Delivery. (For Exceptions, see below.)
All carload shipments for delivery locally or to vessels in New York Harbor, transported under domestic bill of lading to New York, not consigned direct to a specified point for lighterage delivery or to an established freight station of the carriers, will be held in or on cars, piers or warehouses at stations or holding yards specified in Note 16, until receipt of written order for disposition from consignee or party notified of arrival under the terms of the bill of lading, and while so held at stations, or holding yards, in Note 16, awaiting such orders for disposition, the freight will be subject to car demurrage or storage rules published in tariffs lawfully on file with the Interstate Commerce Commission or State Commissions and while so held the responsibility of the carrier shall be that of a warehouseman only, and the carrier shall not be liable for loss, damage or delay, except in case of negligence of the carrier.
When written order for disposition is received from consignee or party notified, freight may then be forwarded to any station or lighterage delivery (including float bridges of connecting lines in New York Harbor), in accordance with provisions of Bule No. A-30, or to other points in accordance with the provisions of Diversion and Beconsignment Tariffs lawfully on file with the Interstate Commerce Commission or State Commissions.
% íjí ífí Sj« ífc

27. Bule A-30 on page 150 of Curlett’s tariff was entitled “Charge for Beconsignment and Diversion of Eastbound Carload Freight”, and Item No. 2663 provided as follows:

(g) Eastbound Freight not consigned in shipping order or bill of lading for export, which is ordered for exportation after arrival of shipment at points named in Note 16 and which has not passed from the possession of the carrier will be subject to the rates, rules and regulations applicable to export traffic or the same as would have applied had the freight been originally consigned for export and will also be subject to a re-consignment charge of $2.97 per car.

Under the explanation for Note 16, referred to immediately above, the tariff contained the following item applicable to plaintiff:

l. v.
South Plainfield, N. J., and east thereof.

As heretofore stated, both Perth Amboy and Nixon, New Jersey, are east of a line running north and south through South Plainfield, New Jersey.

28. Under “General Buies” on page 143 of Curlett’s tariff, Item 2110 read as follows:

Holding of Export, Coastwise and Intercoastal Shipments outside of the Port.
When delivery of a car cannot be made on account of the inability of the consignee, exporter or steamship line to receive it or because of any other condition attributable to the consignee, exporter or steamship line and it cannot be reasonably accommodated on tracks at destination, port of exit or points in Note 16, it will be held at an available hold point and written notice of such holding will be sent or given the consignee or party entitled to receive same within twenty-four (24) hours after arrival at point where held; the free time to be computed from the first 7:00 A. M. after such written notice is sent or given. The time of movement between the hold point and destination or port of exit will not be computed against tbe car. The same rules and charges will apply as if held at port of transshipment.
The provisions of this item will not apply on Coal or Coke (the direct products of Coal). (E. A. 82434, S-l.)

29. For all the shipments in this suit, plaintiff originally presented its bills for the transportation performed by claiming charges computed on the basis of a combination of tariff rates as specified in its Special Services Tariff from the several points of origin to Nixon and from Nixon to Caven Point. The bills were paid on presentation and without prior audit under authority of Section 322 of the Transportation Act of 1940 as amended, 49 U. S. C. 66. When the payment vouchers were subsequently audited by the Transportation Division of the General Accounting Office, the charges were determined to be payable on the basis of the rates provided for in A. A. E. Section 22 Quotation No. 31. Settlement on this basis was effected by a deduction of $51,700.29 from sums otherwise due plaintiff for transportation services performed after the dates of the shipments here involved.

30. The parties have agreed that A. A. E. Section 22 Quotation No. 31 is not applicable to the shipments in suit. Defendant now contends that the correct charges should be computed on the basis of the through export rate from the several points of origin to Caven Point, plus a reconsignment charge pursuant to the rules, regulations and charges named in Curlett’s tariff.

31. Plaintiff now contends that the correct charges should be computed on the basis of the combination rates from points of origin to Perth Amboy and from Perth Amboy to Caven Point, pursuant to plaintiff’s Special Services Tariff.

32. If the transportation services performed with respect to the cars in suit are governed by the provisions of Curlett’s tariff, defendant is entitled to recover the sum of $15,395.26 on its counterclaim.

CONCLUSION OS’ 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 not entitled to recover, and the petition therefore is dismissed.

The court further concludes as a matter of law that the defendant is entitled to recover of and from plaintiff on its counterclaim the sum of fifteen thousand three hundred and ninety-five dollars and twenty six cents ($15,395.26). 
      
       Lehigh Valley Railroad Company Freight Tariff I. C. C. No. C-9028.
     
      
       Agent W. S. Curletts’ Tariff I. C. C. No. A-720.
     