
    COMMERCIAL CARRIERS, INC. v. THE UNITED STATES
    [No. 532-53.
    Decided May 7, 1958]
    
      
      Mr. Louis I. Dailey for the plaintiff. Messrs. Harold G. Hernly and Wrape and Hernly were on the briefs.
    
      Mr. Lewis A. Dille, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant. Mr. Paris T. Houston was on the briefs.
   Jones, Chief Judge,

delivered the opinion of the court:

Plaintiff sues for additional motor carrier transportation charges on two counts. Under the first count the plaintiff claims the sum of $11,120.62. On the basis of our decision in the case of Commercial Carriers, Inc. v. United States, 130 C. Cls. 387, the parties have agreed that plaintiff is entitled to recover the sum of $4,954.22. There is, therefore, no longer an issue as to Count One.

Count Two is for additional charges for the transportation of mobile steam laundry equipment from Moline, Illinois, to Savannah, Georgia, and to Bell Bluff, Virginia, during the period April 1, to August 1, 1943.

Plaintiff claims the additional rate based oh the use of special equipment which it alleges was installed for the purpose of handling the transportation of the excessively heavjr laundry machinery. It invokes the published tariff filed with the Interstate Commerce Commission designated as Motor Freight Tariff 1-B, H. E. Baker, Agent, MFI. C. C. No. 3.

The defendant contends that the plaintiff should be paid on the basis of railway tariffs with land-grant deductions pursuant to a Standard Motor Freight Land Grant Equalization Agreement executed by plaintiff and defendant on August 13,1942.

The parties are agreed that if plaintiff’s position is correct it should recover the sum of $15,698.36 on this count and that if the defendant’s position is sustained plaintiff would be entitled to recover the sum of $2.63.

Prior to our entry into World War II, the plaintiff’s equipment had been mainly used in the transportation of automobiles. It consisted of power units to which were attached automobile carrier trailers.

During the war the hauling of automobiles became less important and plaintiff sought to utilize its equipment in transportation for the United States, adapting its equipment for the changed use where necessary.

The trailers involved in Count Two, after the additional installation, and when loaded, weighed 19,720 pounds each, instead of 6,000 to 8,000 pounds, which they weighed when empty. With the added weight plaintiff did not consider it safe to haul more than one of such loaded trailers at a' time, and certain changes in the fifth wheel and the brakes of its power unit were necessary to adapt them to the hauling of the laundry trailers. Consequently, plaintiff was unwilling to transport laundry trailers from Moline, Illinois, to Savannah, Georgia, and Bell Bluff, Virginia, at land-grant rates.

Plaintiff then advised the office of the Traffic Control Division, War Department, Washington, D. C., that it could not haul this particular equipment at land-grant rates, but that it was prepared to publish the rate for this type of service at 30 cents per mile. It also advised the Traffic Control Division that it had specially adapted its equipment to the handling of the units by use of a fifth wheel and proper brake hookups and had the rights to New Orleans, but that it would be necessary to obtain Interstate Commerce Commission permission to serve the eastern seaboard.

Conferences were held with the officials of the Transportation Corps of the Army at which conferences plaintiff advised that before it could agree to the transportation involved plaintiff would require an exception to the Standard Motor Freight Land Grant Equalization Agreement previously executed by the plaintiff. This change was acceptable to the Army Transportation Corps on account of the scarcity of railroad rolling equipment, and the advantage of more expeditious delivery by motor carrier.

The exception to the Land Grant Equalization Agreement was noted by incorporating in Motor Freight Tariff 1-B, H. E. Baker, Agent, MF-I. C. C. No. 3 the following statement :

NOTICE
Rates named herein are based on the use of special equipment by carriers parties hereto and are not subject to Land Grant Deductions.

This was an accepted and recognized method of noting an exception and the specific language was suggested and supplied by the Transportation Corps of the Army.

The services were performed on Goven. nent bills of lading which bore on their face reference to the special tariff described above.

The case is largely a factual one. The pattern has been set in decisions by the Interstate Commerce Commission and by the courts. Consequently, no request has been made by either party to have the question referred to the Interstate Commerce Commission.

The Government contracted for certain specific services at a specific rate, with full knowledge of all the circumstances. It was fully aware that plaintiff was unwilling to perform the services at other than the agreed rate. The customary method of giving notice of the change in the rate to be applied was followed; in fact, the exact language to be used was suggested by Major Riegel of the Transportation Corps of the United States Army. As was stated in the opinion in The Greyhound Corporation v. United States, 124 C. Cls. 758, 767, “To support the defendant’s contentions would result in inflicting on the plaintiff a contract which, if it had been afforded the opportunity, it would have rejected.”

There is no dispute in the record in the instant case as to the fact that plaintiff’s representatives advised the officials of the Government that it would move the laundry trailers only if it was clearly understood that plaintiff would be compensated in accordance with the special tariff, free from any land-grant deductions. In fact, Major Riegel testified to this effect and expressed the opinion that the rates in the special tariff applied.

The installation of the fifth wheel at considerable expense and the alteration of the brakes constituted equipment not required or used by plaintiff commercially and were of sufficient substance to fit the description of “special equipment”. They were so considered by the officials of the Army Transportation Corps which recommended the language used in Motor Freight Tariff 1-B, H. E. Baker, Agent, MF-I. C. C. No. 3 as appropriate and sufficient to entitle plaintiff to the tariff which it claims under Count Two.

The authorized representatives of the Government, with full knowledge of the facts, made a contract. They could not have secured the transportation without agreeing to the special rates which were agreed upon and notice given in the customary legal and binding fashion. Due to war conditions railway cars were not available and the record indicates that even if they had been, the excessively expensive packaging for shipment by railway would have more than made the difference. At any rate, with full knowledge of all the facts a voluntary contract was made. We cannot think of a single good reason why the Government should not live up to its agreement.

The plaintiff is entitled to recover the sum of $4,954.22 on Count One and the sum of $15,698.36 on Count Two, a total of $20,652.58, and judgment will be entered in that amount.

It is so ordered.

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

FINDINGS OF FACT

The court having considered the evidence, the report of Trial Commissioner Currell Nance, and the briefs and argument of counsel, makes the following findings of fact:

1. Plaintiff is a corporation organized and existing under the laws of the State of Michigan, and now is and was at all times hereinafter mentioned engaged as a common carrier by motor vehicle in the transportation of property for hire in interstate commerce.

2. Plaintiff’s petition herein, containing two counts, was filed on September 14, 1953. Under Count One plaintiff claimed the amount of $11,120.62, as representing additional transportation charges for services performed in transporting numerous shipments of motor vehicles for defendant during the period April 1, 1942 to August 1, 1943. The parties have agreed that the charges for the shipments involved in Count One should be computed on the basis of the court’s decision in Commercial Carriers, Inc. v. United States, 130 C. Cls. 387, and on that basis plaintiff is due the amount of $4,954.22. No issue remains as to the shipments involved in Count One.

3. Count Two of the petition involves the transportation by the plaintiff of mobile steam laundry outfits for defendant from Moline, Illinois, to Savannah, Georgia, and to Bell Bluff, Virginia, during the period April 1, to August 1, 1943. Plaintiff claims for such services on the basis of a certain published tariff filed with the Interstate Commerce Commission, designated as Motor Freight Tariff 1-B, H. E. Baker, Agent, MF-I. C. C. No. 3. The defendant claims that plaintiff should be paid on the basis of railroad tariffs with land-grant deductions.

The parties have agreed as to Count Two that in the event the court decides in favor of plaintiff, the plaintiff would be entitled to recover on Count Two the sum of $15,698.36; but on the other hand if the defendant prevails, the plaintiff would be entitled to recover the sum of $2.63.

4. The trailers in question originated at Delphos, Ohio, and had been transported empty to Moline, Illinois, where their equipment was installed by John Deere & Co. This transportation had been performed by plaintiff at land-grant rates. Plaintiff was agreeable to accepting such rates therefor, because the trailers empty weighed only some 6,000 to 8,000 pounds, so that plaintiff could pull two of them at a time and the land-grant rates between Delphos, Ohio and Moline, Illinois were not important.

5. Plaintiff’s equipment prior to the war had been mainly used in the transportation of automobiles. It consisted of power units to which were attached automobile carrier trailers. With the war the transportation of automobiles became inconsequential, and plaintiff sought to utilize its equipment in transportation for the United States, adapting its equipment for the changed use where necessary.

6. The trailers involved in Count Two, after the installation by John Deere & Co. of their equipment, weighed i9,720 pounds each. Plaintiff did not consider it safe to haul more than one of such loaded trailers at a time. For this reason, and for the reason that certain changes in the fifth wheel and the brakes of its power units were necessary to adapt them to the hauling of the laundry trailers, plaintiff was unwilling to transport them from Moline, Illinois to Savannah, Georgia and Bell Bluff, Virginia at land-grant rates.

7. Plaintiff had solicited the business by letter of August 12, 1942, to the office of Colonel W. J. Williamson, Traffic Control.Division, War Department, Headquarters, Services of Supply, Washington, D. C. In such letter the plaintiff quoted certain rates-and included the following statement:

We are preparing to publish the rate for this type of service at 300 per mile; * * *

Said letter also stated:

We have equipment which has been completely adapted to the handling of these units by use of fifth wheel and proper brake hook-ups and have rights to New Orleans, but would have to obtain Interstate Commerce Commission permission to serve the Eastern Seaboard; there being, to our knowledge, no other company now situated to provide this service.

8. Prior to the performance of the work involved in Count Two, plaintiff applied for and received the authority referred to in the previous finding, and filed the tariff therein mentioned on the terms stated in said letter, such tariff being designated as Motor Freight Tariff 1-B, H. E. Baker, Agent, MF-I. C. C. No. 3.

9. Conferences had been held by plaintiff’s officials with the officials of the Transportation Corps of the Army in which conferences plaintiff advised that to agree to the transportation involved, plaintiff would require an exception to the Standard Motor Freight Land Grant Equalization Agreement previously executed by the plaintiff on August 13, 1942. This was acceptable to the Army Transportation Corps on account of the scarcity of railroad rolling equipment, and the. advantage of more expeditious delivery by motor carrier.

10. The method of noting the exception to the Land Grant Equalization Agreement was by incorporating in the special tariff referred to above, the following statement on page 2 of said tariff:

NOTICE
Rates named herein are based on the use of special equipment by carriers parties hereto and are not subject to Land Grant Deductions.

This was an accepted and recognized method of noting such exception, and the language was suggested and supplied by the Transportation Corps of the Army.

11. Thereafter the services were performed by the plaintiff on Government bills of lading, which bore on their face specific reference to the special tariff hereinabove referred to.

12. Notwithstanding the facts set out hereinabove, plaintiff has been paid only the amount as calculated on the basis of the Land Grant Equalization Agreement.

CONCLUSION OE 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 twenty thousand six hundred fifty-two dollars and fifty-eight cents ($20,652.58).  