
    ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. THE UNITED STATES
    [No. 507-56.
    Decided July 15, 1960.
    Defendant’s motion for reconsideration overruled November 2, 1960]
    
      
      Mr. Raymond, A. Negus for the plaintiff. Mr. Lawrence Oake and Mr. John (ruándolo were on the briefs.
    
      Mr. Lewis A. Dille, with whom was Mr. Assistant Attorney Generad George Oochran Doub, for the defendant. Mr. Paris T. Houston was on the briefs.
   Duraran, Judge,

delivered the opinion of the court:

Plaintiff and connecting lines transported liquid- milk in quart fiber cartons for defendant in 1943, 1944, and 1946 from Healy Station, Illinois, to Pensacola, Florida, for consumption by personnel at military installations in that area. Plaintiff brings this suit for the benefit of the initial carrier, the Chicago, Milwaukee, St. Paul and Pacific Railroad Company, also called the Milwaukee. The intermediate carrier was the Illinois Central.

Prior to May 1943 the defendant had been shipping about two cars of fresh fluid milk daily in passenger baggage service, which milk was brought to the loading platforms of the outbound carriers by motor transport. With the approach of hot weather, defendant was desirous of expediting the anticipated milk shipments by having them picked up at the dairy in passenger refrigerator cars which could be switched in such a way as to make connections with scheduled trains of the line haul carriers. The supplying dairy was the Borden Co. plant at Healy, Illinois, which is serviced only by the Milwaukee as terminal carrier. Healy is within the Chicago Terminal Area although it is not within the passenger switching area of Chicago.

In May 1943 the defendant inquired of the Milwaukee whether it would be possible for it to handle shipments of milk directly from the Borden plant to make connections with various scheduled trains moving out of Chicago for points in the South. The defendant suggested that Western Trunk Line (WTL) Tariff No. 375-C might apply and that it desired that those rates be applied unless plaintiff knew of a more equitable manner in which to bill for the traffic.

Plaintiff replied that WTL Tariff No. 3Y5-C was applicable, that the Clinton Junction, Wisconsin rate was appropriate for traffic from Healy, and that connections could be made with the appropriate trains. In a later communication to plaintiff, the defendant specified the Illinois Central and Pennsylvania Eailroad trains which plaintiff would have to meet, and it prescribed the daily hours at which the milk would have to be picked up in order to make those connections.

In handling this traffic, the Milwaukee would spot the empty refrigerator cars at the Borden plant early each morning. Later in the morning, the Healy patrol, a freight switching crew regularly assigned to that vicinity, would deliver them to a side track at Pacific Junction about 2% miles away. From that point a passenger switching crew of the Milwaukee would move the cars to the Illinois Central station in Chicago where connections would be made with the designated trains. This passenger switching crew occasionally moved other traffic along with the milk cars. The total distance from the Borden plant to the Illinois Central station is about ten miles. On Sundays the above mentioned service was the only one performed by the Healy patrol.

In performing the described services the cars containing the milk passed over the passenger tracks of lines other than the Milwaukee. Pursuant to agreements among the carriers in the Chicago area, the Milwaukee paid from $24.30 to $29.50 per movement for the use of these tracks. Had the milk moved in ordinary freight service all the way from the Borden plant to the Illinois Central station, it would have taken about 48 hours per shipment. The entire switching-operation which was performed by the Milwaukee took about two hours.

Each of the bills of lading which the parties have agreed are representative of all of the shipments at issue carries the following notation on its face:

Passenger train service requested.
If freight service accorded in full or in part, designate on freight bill rendered to Finance Officer, complete class of service rendered from origin to destination.

Each bill also carries one or the other of the following notations on its face:

Intermediate from Clinton Jet Wis.
WTL 375D ICC A 3511
This shipment tendered for transportation under WTL Tariff 375-C using intermediate application from Clinton Junction, Wis., as provided in Item 20 with all intermediate switching or transfer service included in rate rather than under C.P.A. — M. & C. Tariff +14 to avoid an indefinite or excessive switching charge at Chicago.

Plaintiff’s billings for the 1943 and 1944 shipments were based on the rates in WTL Tariff No. 375-C without land-grant deductions, and defendant paid them on that basis. In 1946 the General Accounting Office requested refunds based on the application of land-grant deductions. Plaintiff recognized the validity of this determination and made the refunds. In 1948, however, plaintiff filed bills reclaiming a part of the refunds. During the consideration of these bills, the General Accounting Office determined that the rates in WTL Tariff No. 375-C did not apply, and it issued an additional claim for overpayments predicated on the application of the rates in Central Passenger Association (CPA), Joint Tariffs Milk & Cream (M. & C.) Nos. 4 and 6 with land-grant deductions. Plaintiff refused to refund the alleged overpayments and defendant made deductions from other bills due plaintiff in October 1951 and February and March, 1952.

On the 1946 shipments there were similar developments. In 1949 the General Accounting Office applied CPA Joint Tariffs M. & C. Nos. 4 and 6, and when plaintiff refused to refund the amounts claimed, the defendant deducted the amounts from other bills due the plaintiff in May 1951. The plaintiff’s share of the payments made by the defendant for the shipments at issue, after the deductions had been made on the basis of the application of CPA Joint Tariffs M. & C. Nos. 4 and 6, aggregated not less than $4.83 nor more than $9.53 per car.

The parties have agreed that if plaintiff prevails in its contention that the applicable rates for the shipments are found in WTL Tariff No. 375-C, plaintiff is due the amount of $10,529.09. If the defendant prevails in its contention that the applicable rates for the shipments are found in CPA Joint Tariffs M. & C. Nos. 4 and 6, defendant is due the amount of $435.06. The defendant has also asserted that the statute of limitations bars plaintiff’s recovery of the full amount claimed, in any event. If this theory is correct, the amount of plaintiff’s recovery would be limited to $5,943.42.

It is a well recognized principle of transportation law that agents of the United States are authorized to contract for shipments with common carriers only at rates which do not exceed those offered to the public by published tariff. Missouri Pacific Railroad v. United States, 11 Ct. Cl. 650, 661 (1931). Therefore, if the rates hi CPA Joint Tariffs M. & C. Nos. 4 and 6 are applicable and if they are less than the rates contended for by plaintiff, they must control. Both conditions, of course, must be satisfied. On the other hand, the defendant concedes that if CPA Joint Tariffs M. & C. Nos. 4 and 6 do not apply, then plaintiff’s theory of the case, under WTL Tariff No. 375-C, must prevail.

The defendant’s contention that CPA Joint Tariffs M. & C. Nos. 4 and 6 set the rates for the movements is advanced on the theory that the movements were freight traffic in passenger train service, and that no special services were furnished by plaintiff in handling this freight. Plaintiff, however, in advocating WTL Tariff No. 375-C, maintains that the movements were freight moving in passenger service and that the services performed were special passenger switching services. A third type of service, in contrast to the theory of either party would be freight moving in purely freight service.

It must be noted at first that special services were requested by the defendant and furnished by the plaintiff. The purpose of the May 1943 inquiry made by defendant was to satisfy itself that the Milwaukee could move the milk cars in such ,a way as to meet the scheduled daily departures from Chicago. The purpose for which the notations were placed on the bills of lading was to insure that expedited service would be given. Unless the movements had been expedited it would have taken two days instead of two hours to move the fresh, whole milk to a point from which it could be forwarded to its ultimate consumers. Furthermore, it has been shown that special switching services were provided both by the Healy patrol and by the passenger switching crew that took over the cars at Pacific Junction.

But it was a special service in another sense, too. The plaintiff voluntarily agreed not to exercise a right which it would have had under either of the tariffs before us. Both provided that the carrier had the right to restrict shipments thereunder to trains which it designated. In meeting the schedule set up by the defendant, the plaintiff relinquished this right and thereby furnished a special service.

We do not think that it is a particularly compelling argument that the plaintiff will have paid more for the use of the connecting passenger tracks than it will receive in payments if defendant’s theory prevails. It appears that the agreements made among the carriers in the Chicago Terminal area as to trackage charges were made for their mutual and general benefit and without particular attention to the costs and revenues involved in particular movements. If the tariff advanced by defendant applies, it must apply irrespective of the fact that plaintiff may suffer a loss as a result of its agreements and understandings with its connecting carriers.

But the discrepancy between trackage expenses and possible revenues is significant for the indications it gives as to what plaintiff intended and understood. Plaintiff must have felt that it was offering special services within the framework of the suggested tariff, otherwise it would not have proceeded to pay the trackage charges out of its own revenues when it had the option to refuse, and to move the milk over freight tracks to meet trains of its own choosing. The defendant in suggesting an applicable tariff believed that special services were called for because of the manner in which it specified and requested that expedited service be performed. It is difficult to believe that plaintiff would have rendered expedited service, which it could have refused to do under the tariff, if it understood that it was doing so under the tariff now advanced by defendant and would, in effect, not only earn nothing on the operation, but pay for the privilege of performing the service. As this court said in Greyhound Corporation v. United States, 124 Ct. Cl. 758, 767, “[t]o support the defendant’s contention would result in inflicting on the plaintiff a contract which, if it had been afforded the opportunity, it would have rejected.”

As to the application of CPA Joint Tariffs M. & C. Nos. 4 and 6, those rates apply only from designated stations. Healy, Illinois is not one of those stations nor is it located in the passenger switching area of Chicago. Furthermore, the tariffs do not list the Milwaukee as a participating carrier. On the surface, then, this would seem to deny the applicability of these tariffs. The defendant finds an exception to this, however, which will be discussed later. There are other reasons, also, which cast doubt on the applicability of CPA Joint Tariffs M. & C. Nos. 4 and 6 to the shipments in question.

We cannot agree with the implication which the defendant draws from characterizing these shipments as freight traffic in passenger train service. Bather, we must agree with plaintiff that the emphasis is on the character of the service more so than on the character of the material moved. Defendant asked for and received the same service in the switching of its milk into the Illinois Central station as would have been accorded passenger traffic. This was the defendant’s primary intention since it felt it was necessary to move the fresh milk from the dairy in a much shorter time than would have been possible had it been handled as ordinary freight. Plaintiff emphasizes the service given, then, while defendant emphasizes that the milk was freight. Freight is moved by carriers in both freight and passenger service and, of course, different rates obtain for each service.

The Government argues that CPA Joint Tariffs M. & C. Nos. 4 and 6 incorporate certain other tariffs making the whole structure applicable to these shipments, notwithstanding the fact of the omission of Healy and the Milwaukee from M. & C. Tariffs Nos. 4 and 6. The tariffs referred to, however, are purely freight tariffs; that is, they pertain to freight which is moved pnly in freight service, They would not, as we have already seen, be applicable, therefore, to commodities which were moved in passenger service. In attempting to apply these tariffs, defendant ignores the fact that passenger service was afforded these shipments and concentrates on the fact that Healy is within tbe Chicago Terminal Area. Healy is not, however, within the Chicago passenger switching area, so these shipments in passenger service must be considered a special service.

The tariff contended for by defendant is patently inapplicable to the shipments in question because Healy is not a listed station and because the Milwaukee is not a participant. The freight tariffs which the Government says are incorporated are not appropriate because the character of the special services requested and performed is inconsistent with the purely freight tariffs. Therefore, the rates in WTL tariff No. 375-C are applicable to the disputed shipments.

We pass now to the question of whether or not any part of the amount claimed by the plaintiff may not be recovered because more than six years expired between the commencement of the cause of action and the initiation of suit in this court. The defendant’s position is that the plaintiff had a cause of action against the Government for as much of the amounts refunded as it believed had been refunded in error, and that this cause of action arose in 1946 at the time of the refund. The Government thereupon concludes that the period of limitations expired in 1952. As evidence of this cause of action for an amount equal to the total refund, which the Government says that the plaintiff had in 1946, attention is called to a claim made in 1948 by plaintiff for a return of part of the refund.

Plaintiff’s position is that its cause of action first accrued in 1951 when the defendant first made deductions from current billings in an amount equal to the difference between the rates paid under WTL Tariff No. 875-C and the rates claimed by defendant under CPA Joint Tariffs M. & C. Nos. 4 and 6. The defendant insists that recovery on any cause of action which arose in 1952 must be limited to the sums collected during that year.

We cannot accept the theory proposed by the defendant. The operative facts, which gave rise to this suit were defendant’s insistence that a lower tariff structure be applied to the shipments than the one on which payment had been made, and its action in withholding the amounts from charges then owed the plaintiff. It seems to us that there was an open account on the books of the defendant where debits and credits were entered from time to time as events required. At any rate, this appears to be the manner in which the Government treated these transactions. In 1951 and 1952, it offset amounts it felt had been erroneously collected back in 1946 against debts which had absolutely no relation to the original transactions. In Gulf Oil Corporation v. United States, 143 Ct. Cl. 261, a plaintiff who could have maintained suit against the Government in 1947 accepted a voluntary repayment of part of the amount claimed in 1953. The suit for the balance was commenced in 1957 and this court held that it was barred by the statute of limitations. In answering the plaintiff’s contention that the cause of action had not arisen until 1953 when the defendant credited plaintiff with the full amount before refunding a part of it, this court said, at page 264:

If the Government had in 1953 for the first time sought to make an offset for desirable features against some indebtedness which it owed to the plaintiff, there would be merit in the plaintiff’s argument. * * *

Here the Government takes a position analogous to that of plaintiff in Gulf Oil and insists that the refunds and the deductions create separate causes of action. In this case an offset such as described by the court was made by the Government in 1951 and 1952. Surely plaintiff had no cause of action in 1946 for the recovery of amounts withheld in 1951 and 1952. The railroad could not have known at that time what was to be the Government’s ultimate theory of the applicable rate. The record does not indicate what were the grounds for plaintiff’s reclaiming a part of the 1946 refund. We must assume, certainly, that it was not based on principles and actions which did not come into being until some years later. Morover, the defendant’s argument that “as evidence of the fact that the carriers believed the total refund was in error, a supplemental bill was filed in June of 1948 reclaiming part of the amount refunded” appears to be illogical. It seems to us that if plaintiff believed that it was entitled to reclaim the total land-grant refund for whatever the reason, it would not have reclaimed only a part of it.

It is our conviction that Western Trunk Line Tariff No. 375-C is applicable to all of the shipments which are the subject of this suit. The plaintiff’s cause of action first accrued no sooner than the deductions made by defendant in 1951 and its petition is timely as to all amounts claimed.

The plaintiff is entitled to have judgment entered in the amount of $10,529.09. The defendant’s counterclaim will be dismissed.

It is so ordered.

LaeaMORe, Judge; Whitaker, Judge; and Jones, Ohief Judge, concur.

Madden, Judge, took no part in the consideration and decision of this case.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Marion T. Bennett, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff is a corporation of the State of Missouri and is a common carrier by railroad over its own lines and in connection with other carriers.

2. During the years 1943, 1944, and 1946, plaintiff and its connecting lines performed transportation services for the defendant by transporting shipments of fluid milk in passenger train service from Healy station, Chicago, Illinois, to Pensacola, Florida.

3. The parties have agreed that for purposes of resolving the issues, the following bills, bills of lading and supporting-payment records are representative of all shipments in controversy:

Bill No. Bill of Lading No.
1336_ WQ-16174507
WQ-16173874
2685_ WT-¡5393131
2684_ WT-5393384
25731_,_ N-15980209
N-15980210
N-1598Q211

4. The representative bills of lading show on their face that the shipments were of fluid milk in quart fibre containers, under refrigeration, from the Borden Company, Healy station, Chicago, Illinois, to defendant’s agents at Pensacola, Florida, and there receipted for by authorized personnel. They also show that the Chicago, Milwaukee, St. Paul & Pacific Eailroad Company (sometimes hereafter called the Milwaukee) was the initial transportation company, that the Illinois Central was the intermediate carrier and that the plaintiff, the St. Louis-San Francisco Eailway Company, was the delivering carrier. Plaintiff brings this suit for the benefit of the initial carrier.

5. Each bill of lading carried the following notation:

Passenger train service requested.
If freight service accorded in full or in part, designate on freight bill rendered to Finance Officer, complete class of service rendered from origin to destination.

In addition to the above notation, some of the bills of lading also stated:

Intermediate from Clinton Jet Wis
WTL 375D ICC A 3517

Other bills of lading carried the following notation in lieu of the line immediately above:

This shipment tendered for transportation under WTL Tariff 375-C using intermediate application of rate basis applicable from Clinton Junction, Wis., as provided in Item 20 with all intermediate switching or transfer service included in rate rather than under C.P.A. — M. & C. Tariff #4 to avoid an indefinite or excessive switching charge at Chicago.

6. The payment records of the representative shipments during 1943 and 1944 show that, plaintiff’s original bills were based upon the rates published in WTL Tariff 375-C without land-grant deductions. The bills were paid as presented and, thereafter, in 1946 the General Accounting Office determined that plaintiff had been overpaid and issued forms 1003, notice of overpayment and request for refund, based upon the application of land-grant deductions to the rates claimed by plaintiff. Thereafter, plaintiff made refunds to the defendant of the alleged overpayments in November 1946. In June 1948 plaintiff filed supplemental bills with the General Accounting Office reclaiming a part of the amounts deducted. Subsequently, during the consideration of the supplemental bills, the General Accounting Office determined that the rates in WTL Tariff No. 375-C were not applicable to the shipments and in 1949 issued additional forms 1003 on the basis of rates published in C.P.A. Joint Tariff M. & C. No. 4 and No. 6 with land-grant deductions. Upon refusal of plaintiff to refund these additional alleged overpayments, deductions of such amounts were made by defendant from other bills due plaintiff in October 1951 and February and March 1952. Tins payment and audit action was made under the provisions of law as set forth in Section 322 of the Transportation Act, 1940 (54 Stat. 955,49 U.S.C. 66).

7. The payment record of the representative shipments establishes that the plaintiff in its initial billing on the shipments during 1946 predicated its charges on the tariff rates in WTL Tariff 375-C without land-grant deductions. The charges were paid as billed, but in 1949 the General Accounting Office issued form 1003 demanding refund on the basis that WTL Tariff 375-C was not applicable and that the charges should be computed solely on the application of C.P.A. Joint Tariff M. & C. No. 5 and No. 6 with land-grant deductions. Plaintiff refused to refund on that basis and in May 1951 deductions were made from other bills due the plaintiff of the amounts so claimed.

8. On May 15, 1943, the War Department, Office of the Quartermaster General, Chicago, Illinois, addressed a letter of inquiry to the Chicago, Milwaukee, St. Paul and Pacific Railroad Company as to the possibility of that company handling shipments of milk direct from the Borden Company plant, located within the Healy switching district, and to make connections with various scheduled passenger trains operating from Chicago to points at various southern and southeastern military installations. It was suggested that the applicable rate for such service could be determined by applying the intermediate application permitted by WTL Tariff 375-C, Items 20 and 60. This tariff is in evidence as defendant’s exhibit 10. The defendant at the time was loading approximately two cars of fresh, fluid milk daily for shipment in passenger baggage service. The commodity was trucked to various loading platforms of outbound carriers in Chicago. Defendant was concerned with the perishable nature of the milk and the approaching hot weather and thought it would be better to have it picked up at the Borden plant in passenger refrigerator cars if suggested connections could be made with other rail lines. The inquiry was replied to on May 19,1943, with the advice that WTL Tariff 375-C was applicable to the traffic, that the Clinton Junction, Wisconsin, rate would be applied from the Borden plant in the Healy switching district on intermediate application, and that appropriate connections could be made for passenger train movement as desired.

9. On May 27,1943, the War Department by letter advised the Milwaukee Railroad Company, in pertinent part as follows:

Have your telephone assurance that proper operating officials have made, and will place in effect, necessary Sunday service to assure early evening departures via the lines involved. The PER cars should be delivered in sufficient time to be placed in their train #236, due to depart Chicago at 9:20 P.M. daily, including Sundays. The cars routed in connection with the IC should be delivered to that line for departure in train MS-1 at 7:30 P.M. week days, and to depart in train #29, departing at 5:30 P.M. on Sundays.
Both of these lines require receipt of shipments at least one hour prior to scheduled train departure, and am of the opinion based on departure from Healy about noon, that you will have ample time to accomplish deliveries. Anticipate your handling with the utmost dispatch to insure a steady supply of this commodity at the military installations involved.
Your careful supervision and complete coverage of operating personnel will be required to maintain this movement to meet with the exacting conditions laid down for us by the offices of supply.

10. Healy station, Chicago, Illinois, is located only on the Chicago, Milwaukee, St. Paul & Pacific Railroad Company line within the Chicago terminal district, as shown on the map issued under the supervision of the Chicago Switching Committee of the Illinois Freight Association. Healy station depot is located about one mile from the Borden plant. Healy station is not within the passenger switching area of Chicago.

11. The Milwaukee Eailroad provided express refrigerators suitable for movement on passenger trains as requested on Government bills of lading. The Milwaukee hauled empty cars to the Borden plant in the early morning. The loaded cars were picked up between 11:00 a.m. and noon of the same day. The Healy patrol, a crew assigned to the switching of freight to and from the industries in the Healy area, performed the service of spotting the empty cars and picking them up for delivery to a side track at Pacific Junction some 214 miles south. At the latter point the cars were picked up by a passenger service switching crew of the Milwaukee and delivered to the Illinois Central passenger station, approximately 10 miles from the Boi’den plant. The entire switching movement from the plant to the Illinois Central station required about two hours. This operation was performed seven days per week. On Sundays the only operation performed by the Healy patrol was the one described above. Had the milk moved in freight service all of the way from the Borden plant to the Illinois Central, it would have taken not less than 48 hours.

12. To move these cars of milk in passenger service, the Milwaukee Eailroad paid for the use of passenger tracks belonging to other carriers. Depending upon the route used, the cost to the Milwaukee was from $24.30 to $29.50 per movement. The trackage charges were not published in any tariff but were the result of private agreements of long standing between the Milwaukee and other railroads.

13. Central Passenger Association Joint Tariff M. & C. No. 6, Section 2, contains a list of participating carriers. The Chicago, Milwaukee, St. Paul and Pacific Eailroad Company is not listed therein as a participating carrier. Section 2 contains the following provision:

The rates, rules and regulations shown in this tariff apply via the routes and to the destinations shown herein via the lines of the participating carriers named below, under authority of concurrences Form PX6 on file with the Interstate Commerce Commission in favor of J. E. Beggs, Agent, acting for the issuing carriers shown herein under Powers of Attorney Form PX1 on file with the Interstate Commerce Commission.
Where designations as indicated below appear in the routes, rules and regulations published herein, they shall be held to mean the participating carriers shown opposite such designation.
Eates do not apply over the line of any carrier not named below.

CPA Joint Tariff M. & C. No. 4, which likewise does not list the Milwaukee as a participating carrier, contains a statement in Section 2 similar to that quoted above, except for the last sentence which reads:

Tickets must not be sold reading over the line of any carrier not named below.

Both tariffs in Section 5, Eule 18, and WTL Tariff No. 375-C, Item 110, contain the following rule:

Carriers reserve the right to restrict shipments covered by this tariff to trains designated by them.

14. CPA Joint Tariff M. & C. Nos. 4 and 6, Section 5, Eule 1, contain the following provision:

FACILITIES, PRIVILEGES AND DELIVERIES
The rates named herein apply from and to the tracks, stations and any other receiving and delivering points on the lines of carriers, parties to this tariff, or to or from sidings connected with lines parties to this tariff, where the particular traffic is usually received or delivered, subject, however, to such regulations and charges, if any, for switching, demurrage, terminal service, refrigeration and/or icing, as published in tariffs issued, by carriers parties to this tariff, and lawfully filed with the Interstate Commerce Commisison.
The rates named herein will also apply from or to loading or delivering tracks and sidings, or other receiving and delivering points on the lines of connecting carriers not parties to this tariff as published in tariffs issued by carriers parties to this tariff and lawfully filed with the Interstate Commerce Commission.

15. A directory of industries with private or individual side tracks in the Chicago switching district is contained in the Illinois Freight Association Tariff Bureau Tariff No. 22-DD. Borden-Wieland, Inc., is designated therein as an industry at Healy, Illinois, with, the Milwaukee Railroad as a terminal and participating carrier.

16. Illinois Freight Association Tariff Bureau Tariff No. 20-W names the local and joint terminal charges, rules, and regulations applicable to freight traffic from or to points within the Chicago switching district. This tariff lists the Chicago, Milwaukee, St. Paul and Pacific Railroad as an issuing and participating carrier and Healy, Illinois, as a station on that line and within the Chicago switching district. Item 140 states that wherever the term “Chicago, Ill., rates” is used, it means “Chicago, Ill., rates lawfully on file with the Interstate Commerce or State Commissions.” The same tariff further indicates that on freight traffic to or from Healy station to the Illinois Central Railroad, rate basis No. 1 is to be applied as shown in Section 10 which authorizes “Chicago, Illinois, rates.”

17. Illinois Freight Association Tariff Bureau Division Sheet No. 12-1 shows the basis for the division of rates under Chicago Switching Committee Tariff No. 20 series, as explained in rule No. 1 thereof. Supplement 17 to Division Sheet No. 12-1 shows that on carloads of milk, cream, butterfat and sour cream, the road haul carrier (Illinois Central) will allow the terminal carrier (Milwaukee) the amount of 1.58 cents per 100 pounds.

18. The Illinois Central Railroad Company Freight Tariff 1 — C contains rates, rules and regulations governing, among other things, absorption of switching charges. Rule 60-G thereof states:

The Illinois Central R.R. will absorb the switching or trackage charges of connecting or switching railroads to or from side tracks, warehouses or industries on such roads at points of origin and destination as follows, * * *:

The rule then identifies certain specific things such as coal, coke and livestock and has a catchall item “Other C.L. freight. Switching will be absorbed.”

19. On the representative bills herein the plaintiff, as the destination carrier, made interline adjustments in 1946, 1951, and 1953. The adjustments in November 1953 made to the Milwaukee Railroad Company reduced the revenue of that carrier to the basis of the rates determined by the General Accounting Office in applying CPA Joint Tariff M. & C. Nos. 4 and 6. On this basis, the Milwaukee received not less than $4.83 and not more than $9.53 per car for the service of hauling a car of milk from the Borden plant to the Illinois Central passenger station, Chicago, Illinois.

20. It is plaintiff’s contention that the proper rate applicable on these shipments of milk is the rate authorized by the WTL Tariff 375-C series for the movement in passenger service from Healy station to the Illinois Central station in Chicago, and from Chicago, Illinois, to destination. If the court shall find that the service rendered was passenger service on that basis, there is due the plaintiff the amount of $10,529.09.

21. The defendant contends that the shipment of milk from the Borden plant to the Illinois Central passenger station was purely a freight switching service on which the carriers have held out to absorb the switching charges and that the applicable rate is that found in CPA Joint Tariff M. & C. Nos. 4 and 6 and on that basis there is due the defendant the sum of $435.06.

22. If the court shall find that the plaintiff’s theory is correct and that the applicable charges should be computed on the basis of WTL Tariff 375-C series, there is also the question as to whether or not plaintiff should recover the full amount claimed. Defendant contends that the statute of limitation bars recovery for the full amount. If the defendant’s theory is upheld as to the statute of limitation there is due the plaintiff the sum of $5,943.42.

CONCLUSION OP 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 plaintiff is entitled to recover, and it is therefore adjudged and ordered that plaintiff recover of and from the United States the sum of ten thousand five hundred twenty nine dollars and nine cents ($10,529.09).

It is further adjudged that the defendant is not entitled to recover on its counterclaim and the counterclaim, accordingly, is dismissed. 
      
       Plaintiff in its petition claimed $15,791.33. Defendant filed an amended response on plaintiff’s theory: in which the amount was reduced to $10,529.09. Plaintiff has accepted the defendant’s computation.
     