
    GULF, MOBILE AND OHIO RAILROAD COMPANY v. THE UNITED STATES
    [No. 9-55.
    Decided February 6, 1963]
    
      
      John L. Hamilton for plaintiff. George E. Hamilton, Jr., Roman J. Gerber, and Hamilton and Hamilton were on the brief.
    
      Lewis A. Dille, with whom was Acting Assistant Attorney General Joseph D. Guilfoyle, for defendant.
   Dttrfee, Judge,

delivered the opinion of the court:

Plaintiff and its connecting carriers transported and delivered carload shipments of ammunition from inland points of origin to ports of embarkation at New Orleans and Braithwaite, Louisiana, during the period February to December, 1948. The carloads were first shipped to inland storage depots at Bynum, Alabama; Fort Estill, Kentucky; and Milan, Tennessee. Reshipment was later made from there'to an Ammunition Back-Up Storage Depot located at Spann, Louisiana, a local station on plaintiff’s railroad. Here the shipments were again stopped by order of the Government, and later transported to the ports to be transported by ship to overseas destinations. During the time these shipments were in storage at the inland storage points and the Spann Back-Up Depot, they were not in the custody, control or possession of the carriers. The carriers regained such custody, control and possession upon reshipment from these inland storage points and from the Spann Back-Up Depot. Upon arrival at the second transit stop at the Spann Back-Up Depot, the inbound bills of lading were surrendered and freight charges paid, and new bills of lading were issued for the movement from Spann to the port.

In assessing freight charges involved in this suit, plaintiff used one or the other of the following bases (whichever produced the lowest charges): (a) local rate from original point of shipment to the inland storage point, plus the through rate from such inland storage point to the port with one transit stop privilege at Spann, plus transit and other charges provided under and by authority of American Railroads Section 22 Quotation No. 40-A, or (b) a combination of local rates constructed from point of origin via the inland storage point and the back-up storage point at Spann, less applicable land-grant deductions.

A Section 22 Quotation rate is a special rate tender authorized under 49 U.S.C. § 22, different from the regular published tariff rate in order to establish reduced or free rates for a special purpose.

Defendant claims that the freight charges should be computed on the basis of a through rate applicable from point •of origin, via the inland storage point, thence via the back-up storage point at Spann to the port, plus a transit charge and other miscellaneous charges where applicable under the separate provisions of Section 22 Quotations Nos. 31-Series and 40-Series.

Necessary to the decision of this claim is an understanding of the clear distinction in purpose between the designation of the inland storage depots in Quotation No. 31-Series and the designation of the back-up depots in Quotation No. 40-A, and the accompanying privilege to stop in transit provided in each quotation.

The “storage depots” designated in Quotation No. 31-Series were the three inland storage depots in Alabama, Kentucky and Tennessee, but not the back-up depot at Spann, Louisiana. As fast as the munitions for World War II were produced, they were shipped to these inland storage depots. The storage in transit at these inland storage depots, as provided in this quotation, was for the purpose of moving the ammunition from points of production to avoid interference with production schedules; to keep ammunition out of the port areas pending availability of shipping space; to replenish stocks of inland depots located near the port areas, and to take care of shipments diverted in transit. The storage in transit at these inland stations was also for the purpose of enabling defendant to unload the contents of each car, store them, and where necessary, to repaint the projectiles, to box, rebox, crate, re-crate, or mark the articles •or to replace any defective assemblies on the projectiles before reshipment to the ports. From the stocks thus assembled, specific overseas needs were then shipped by rail to the port.

Some ports did not have sufficient rail and pier facilities to permit the handling of the specific shipments direct from the inland storage depots hereinabove described, and it was necessary to establish back-up depots near the ports, but outside the port area, where shipments could be temporarily held in cars and f unneled into the port as ship and pier space became available.

At Government request, the designation of the Government storage plant at Oyster Point, Virginia, from an inland storage point under the Quotation No. 31-Series was changed to a back-up depot under Quotation No. 40-A and Spann, Louisiana was also designated therein as a back-up depot. Spann was a local railroad station 36 miles from New Orleans, and shipments were held there temporarily in cars. until ordered to the port.

Quotation No. 31-Series first provided that shipments consigned to designated inland storage depots for storage, and subsequently shipped by rail to the port, could be stopped in transit at one of these inland storage depots designated. Later, Quotation No. 31-Series was amended to limit each shipment thereunder to being stopped in transit at not more than two of the designated inland storage depots.

Quotation No. 40-A Series defined and specified Back-Up Depots:

A back-up depot is defined as a depot located near to and serving a port of transshipment to which Government shipments of commodities listed in Item No. 3 may be returned from such nearby port for temporary storage pending later reshipment to such port for transshipment.
The back-up depots at which the privileges herein provided for are available are:
Oyster Point, Va. (Serving Newport News, Va.) Maynard, Mass. (Serving Boston, Mass.)

Spann, Louisiana (serving New Orleans, La.) was added by amendment. This quotation provided one transit privilege to stop each shipment to a port at one of the back-up depots designated (in this case at Spann)'. The traffic covered in. this quotation as set forth in our findings differed materially from the traffic covered in Quotation No. 31-Series: except as to point of origin, and .final rail destination at the port, and the privilege.of stopping in transit in each quotation was limited to the traffic covered in each quotation.

Quotation No. 81-Series covered traffic consigned from point of origin to one of the specified inland storage depots, and subsequently reshipped to the port. Not more than two transit stops at these inland storage points were authorized.

The traffic covered under Quotation No. 40-A was restricted to shipments consigned from point of origin to or intended for the port, which was either returned to a backup depot for storage and then reshipped to the port, diverted or stopped at a back-up depot for storage and later reshipped to the port, or initially consigned to the back-up depot for storage and later reshipped to the port served by the back-up depot.

The position taken by defendant is that Quotation No. 40-A Series and No. 81-Series are different, and each was independent of the other. With this position, we agree. As a corollary, however, defendant also urges that the combined provisions of the two quotations permit two separate stops in transit for one shipment from point of origin to the port for the purpose of the through rate it proposes, and that the restriction in each quotation to one transit stop privilege does not operate to preclude the benefit of a different and additional transit stop privilege available in the other quotation.

In Union Pacific Railroad Co. v. United States, 152 Ct. Cl. 523 (1961), 287 F. 2d 593, this court held that two Section 22 Quotations could be combined when the only way to give meaning to one quotation was to say that the quotation was meant to give to the Government the lowest applicable rate, which could only be through a combination with another quotation, and that the parties must have so intended. The court there cited A. E. West Petroleum Co. v. Atchison, T. & S.F. Ry. Co. et al, (C.A. 8), 212 F. 2d 812 (1954), to the effect that in interpreting tariff schedules made under Interstate Commerce Commission tariff rules, the rules would be construed as to carry out the intention of the parties, resolving any doubts in favor of the shipper.

The above case was recently cited in Great Northern Railway Co. v. United States, 156 Ct. Cl. 332 (1962), 312 F. 2d 901, to the effect that a Section. 22 Quotation rate may be combined with another quotation rate to produce an aggregate lower than the through rate

[if it] reveals an intention that it may be so used, * * *, And perhaps * * * a quotation rate may also be combined with a local tariff if the quotation is designed to be used in that manner, [p. 336].

However, the court there held that under the facts in that case, the Government was not entitled to combine a Section 22 Quotation with a tariff rate in order to defeat the application of a single factor through rate.

The Great Northern case, supra, was more recently cited in another Great Northern Railway Co. v. United States case, ante, p. 225, 312 F. 2d 906 (1963). The court distinguished the two cases on the facts as to the particular rate structure involved, but in denying defendant’s counterclaim, it pointed out the absence of any provision in the Section 22 Quotation involved indicating an intention that it was designed to be used in combination with a local tariff.

Part of the rationale in each of these three opinions by this court was that in order to combine a Section 22 Quotation with another quotation, or with a regular tariff provision, the intention of the parties to accomplish this purpose must be apparent, either by express provision or necessary inference.

In this connection, we observe that transit is a privilege that must be specifically authorized, and cannot be inferred. When a transit privilege is given by express authorization in a tariff or quotation, all conditions and limitations prescribed with reference to it must be strictly observed. Chicago, B. & Q. R. Co. v. Bernier & Sons, Inc., 56 F. Supp. 691, (D.C. Minn., 1944); Chicago & N. W. R. Co. v. Connor Lumber & Land Co., 212 F. 2d 712, (C.A. 7, 1954). The express terms of the two quotations are at such complete variance with each other in the limitations of traffic covered and transit privileges as to rebut any inference or conclusion that they are complementary or that the transit privilege in one is subject to combination or interchange with the other.

In the present case, there is no express provision in either quotation which indicates that the provisions of one quotation, including transit privilege, may be combined with the other. Throughout the period of the shipments involved, it appears that the railroads concluded that each of these two quotations was independent and separate of the other, and that the transit privileges provided could not be combined to provide one transit stop at an inland storage depot, and a second transit stop at a back-up depot for one shipment at a through rate from point of origin to the port. The railroads notified the Government of this conclusion on September 11, 194B during the period of these shipments. Thereafter, at the request of the Government, the two quotations were each amended, and express provision was made in each quotation for the privilege of one inland storage depot transit stop, and one back-up depot transit for one shipment. These amendments were not issued until February 3,1944, — over a month after the last of the shipments involved in this case, and were not applicable thereto. These last amendments were not made retroactive as to the prior shipments involved herein, or as to the bills of lading already paid.

During the entire period of the shipments involved, the Government accepted and paid the bills of lading under the rates assessed by plaintiff. Although the Government requested and negotiated some changes in both quotations during the period involved, it does not appear that the Government ever requested a change in the quotations to provide for both a back-up depot transit stop privilege and an inland storage depot transit stop privilege for the purpose of a single through-export rate until after the year in which the shipments involved were transported.

We conclude that there are no facts in this case to indicate or reveal an intention by the parties that either of these quotations could be combined with the other for the purpose of combining the different traffic covered and the different transit stop privileges provided in each quotation in order to accomplish a through-export rate from point of origin to the final port destination. Any presumption or inference in favor of the shipper in construing the two quotations is overcome by the facts hereinabove stated which reveal a clear intent and understanding by both parties during the period of the shipments involved, which is contrary to the position now urged by the Government.

We further conclude that the method of computation by the Government on the basis of a through rate applicable from point of origin, via the inland storage point, under A.A.R. Section 22 Quotation No. 31-Series, thence via the back-up storage depot under A.A.R. Section 22 Quotation No. 40-Series, plus a transit charge at each storage point, plus a backhaul or out-of-line charge where applicable, plus miscellaneous charges, does not comply with the limitations of either or both of these quotations as to traffic covered and transit stop privileges, and that the charges assessed by plaintiff for the shipments involved are correct.

The parties have agreed that if the freight charges should be computed on the basis urged by plaintiff, the net amount that would be due plaintiff on the disputed shipments is the sum of $7,658.75. Judgment will be entered for plaintiff in this amount.

Reed, Justice (Bet.), sitting by designation; Davis, Judge; Laramore, Judge; and Jones, Chief Judge, concur.

findings of fact

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

1. The plaintiff, a corporation of the State of Mississippi, is a common carrier by railroad, engaged in interstate commerce over its own lines and in connection with other carriers.

2. After the petition was filed, a number of plaintiff’s claims were disposed of by administrative settlement, withdrawal, and by stipulation of the parties. The claims remaining in controversy raise the issue as to the applicability of (1) tariffs duly filed with the Interstate Commerce Commission or (2) quotations issued to agencies of the United States, pursuant to Section 22 of the Interstate Commerce Act, 58 Stat. 751; 49 U.S.C. 22, to shipments of ammunition and explosives which were stopped in transit at the Spann, Louisiana, Ammunition Back-Up Storage Depot while en-route from inland transit points in the United States to the Gulf ports for export.

This issue involves the interpretation and applicability of Association of American Railroad Quotations Nos. 31-Series .and 40-Series, which were issued under Section 22 of the Interstate Commerce Act, supra.

3. During the period from February 1943 to and including December 1943, plaintiff and connecting carriers performed transportation services for defendant by transporting .and delivering to defendant at the New Orleans and Braith-waite, Louisiana, ports of embarkation carload shipments of ammunition for camion with explosive projectiles, ammunition for cannon with solid projectiles, and smokeless powder for cannon.

4. The shipping points of origin, as shown on the Govem•ment bills of lading, for the remaining items in suit were .Atlas, Ohio, Depot, Ohio, Milan, Tennessee, and Watson, Indiana. The carloads of ammunition and smokeless powder ■were shipped from these points of origin during the period •of February 1943 through October 1943, to the following inland storage-in-transit points at Bynum, Alabama, Fort JBstill, Kentucky, and Milan, Tennessee, where said carloads -were unloaded and the contents stored.

5. During the period of July' 1943 through November 1943, reshipment was made from these inland storage-in--fransit points to Spann, Louisiana, where the tonnage was held in the cars. It was by order of defendant that each of ••the shipments was stopped in transit at the Spann Ammunition Back-Up Storage Depot located at Spann, Louisiana (a local station on plaintiff’s railroad, 36 miles north of New -Orleans). Plaintiff was the line-haul carrier to and from rSpann, Louisiana.

6. Thereafter, during the period July 1943 through De- ■ cember 1943, each carload was transported to New Orleans •or Braithwaite, Louisiana, for loading aboard ship for overseas destinations. Delivery of each carload was made and raccepted at either New Orleans or Braithwaite, where defendant’s Port Transportation Officer receipted and accom-plished each bill of lading.

7. The carloads of ammunition, etc., remaining in controversy, moved from the original points of shipment in the "United States prior to February 1,1944, and were thereafter ■stored in transit at either Bynum, Alabama, Fort Estill, [Kentucky, or Milan, Tennessee. The storage in transit at inland transit stations was for the purpose of moving the ammunition from points of production to avoid interference with production schedules, to keep the ammunition out of the port areas pending availability of shipping space, to replenish stocks of inland depots located near the port areas, and to take care of shipments diverted in transit. The storage in transit at these inland transit stations was also for the purpose of enabling defendant to unload the contents of each car, store them, and where necessary to repaint the projectiles, to box, rebox, crate, recrate, or mark the articles or to replace any defective assemblies on the projectiles before reshipment to the ports.

After this storage at the inland transit station, the shipments moved to Spann, Louisiana. Upon arrival at the Spann depot the inbound bills of lading were surrendered and freight charges for the movement into Spann were paid, upon plaintiff’s presentation of bills to defendant pursuant to Section 322 of the Transportation Act of 1940, 54 Stat. 955, 49 U.S.C. 66. New outbound bills of lading were issued for the movement from Spann to the port.

8. During World War II, the Armed Forces of the United States and its allies required great quantities of munitions, which were produced in part at various ordnance plants throughout the United States. As the material was produced it was shipped to inland storage depots in the United States. From the stocks thus assembled, specific overseas needs were met by shipment by rail to United States ports and by water beyond to the various theatres of war. Some ports did not have sufficient rail and pier facilities to permit the handling of numerous carloads of ammunition direct from the inland storage depots to such ports, and it was necessary to establish back-up depots outside the port areas where cars could be held and funneled into the port as ship and pier space became available. The Spann Ammunition Back-Up Storage Depot was established by the War Department in 1942 to meet this requirement of the New Orleans port area. During the time the shipments in controversy here were in storage at the inland storage points and at the Spann, Louisiana, Back-Up Depot, the carriers were not in custody, control, or possession of those shipments. Such custody, control, and possession were regained by the carriers upon reshipment from those inland storage points and Spann Back-Up Depot.

9. Plaintiff, in assessing freight charges on the shipments involved in this suit, used one or the other of the following-bases (whichever produced the lower charges): (a) local rate from original point of shipment to the inland storage point plus the through rate from such inland storage point to the port with one transit privilege at Spann, plus transit charges and miscellaneous charges as provided under and by the authority of Association of American Bailroads Section 22 Quotation No. 40-A, or (b) a combination of local rates constructed via the inland storage point and the back-up storage point at Spann, less applicable land-grant deductions.

10. Defendant is claiming that the freight charges on the shipments in suit should be computed on the basis of a through rate applicable from the original point of shipment, via the inland storage point, thence via the back-up storage point to the port, plus a transit charge at each storage point, plus a back-haul or out-of-line charge where applicable, plus miscellaneous charges. Defendant claims that the provisions of Association of American Bailroads Section 22 Quotations Nos. 31-Series and 40-Series permit the application of this basis.

11. If it is held that the freight charges should be computed on the basis urged by plaintiff, the parties have agreed that the net amount that would be due plaintiff on the disputed shipments is the sum of $7,658.75.

12. On the other hand, if it is held that the freight charges should be computed on the basis urged by the defendant, the parties have agreed that the net amount that would be due plaintiff on the disputed shipments is the sum of $3,180.88.

13. Pursuant to a request of the Director of the Office of Defense Transportation of the United States Government, the railroads of the nation early in 1942 established a Traffic Executive Chairmen’s Committee consisting of A. F. Cleveland, Vice President, Association of American Bailroads, and the chairmen of the three territorial railroad traffic associations (east, west, and south). This committee, with the-consent of the Department of Justice, served as the railroads’ representative to consider and act on the requests of the War, Navy, Treasury, and other departments of the Government for special rates and other traffic arrangements.

14. Under date of July 13, 1942, W. J. Williamson, Chief of Traffic Control Division of the Office of the Chief of Transportation, War Department, addressed a letter to Mr. Cleveland, Vice President, Association of American Railroads (A. A.R.), in which it was recognized by the Government that it could not ship ammunition to a port for export with storage in transit without paying the local rate to and from the storage point. In requesting the railroads to provide for storage-in-transit privileges and the application of through rates, Williamson stated, in part:

The present war effort, with its tremendous demands for ammunition of all descriptions, requires the storage of vast quantities of ordnance materiel at various ammunition depots and arsenals throughout the continental United States. As the production of the materiel has increased, greater and greater quantities are being moved from production lines to storage depots for subsequent reforwarding to consuming points, both within the continental limits of the United States and overseas.
At the present time, due to the lack of provisions authorizing storage-in-transit on such materiel, it is necessary that the War Department pay the local rate to and from the storage point. With the prevailing high classification ratings applicable on the materiel moved in such traffic, the transportation costs are tremendous.
It is requested that the nation’s carriers provide storage-in-transit privileges at the various ammunition depots and arsenals throughout the United States, which will allow movement inbound on the local rate, storage at the transit point for a period not to exceed two years, and shipment outbound to both inland destinations and ports for export at the balance of the joint through rate plus transit charge. There is inclosed a list of points at which storage-in-transit privileges are desired, and also a list of commodities on which it is requested that the privileges be made to apply.

15. The War Department’s request was considered by the Chief Traffic Officers of the nation’s railroads and the Traffic Executive Chairmen’s Committee (T.E.C.C.), and it was decided that there should be issued, pursuant to Section 22 of the Interstate Commerce Act (58 Stat. 751, 49 U.S.C. sec. 22), a quotation that would permit the United States to ship certain ammunition “for export only” (and to Alaska by land or water), with each shipment being allowed “[o]nly one stop for storage in transit,” on the basis of through rates plus a transit charge.

16. On August 29, 1942, A.A.R. Section 22 Quotation No. 31 was issued by A. F. Cleveland for and on behalf of the railroads. Items Nos. 1 and 2 of that Quotation provided:

Item No. 1. — Traffic Covered,.
The traffic covered by and subject to this quotation is the commodities listed in Item No. 3, when originating at points in continental United States, and moving all-rail, in carloads, under Government bills of lading, consigned to a storage depot listed in Item No. 4, for the purpose of being there stored and subsequently shipped all-rail to ports in continental United States for transshipment by water to foreign countries and to insular possessions of the United States, also to Alaska by water or land, provided that such traffic moves via the railroad station at which the storage depot is located and under and subject to rates from original point of shipment to port of trans-shipment made 65 per cent of the current first-class rates, subject to minimum weight of 50,000 pounds per car, in effect on date of movement from original point of shipment.
Item No. 2. — Transit Privilege.
(a) Subject to compliance with all the terms and conditions of this quotation, each shipment of the ldnd referred to in Item No. 1 may be stopped in transit at one of the storage depots named in Item No. 4 for storage by and at the expense of the Government and reshipped therefrom to any destination referred to in Item No. 1, at the through all-rail rate specified in Item No. 7. Such stopping is referred to in this quotation as the “transit privilege”. Each shipment shall be entitled to but one transit privilege. No shipment as to which any of the applicable terms and provisions of this quotation have not been complied with shall be entitled to the transit privilege.

Item No. 6 of the Quotation provided:

Item No. 6. — Boxing or Crating.
Boxing or crating of the commodities shipped under this quotation will be permitted at a storage depot listed in Item No. 4, but no such commodities shall be otherwise manufactured or processed.

The commodities listed in Item No. 3 of the Quotation (as well as in all subsequent amendments to and reissues thereof) included the ammunition involved in this suit.

Item No. 4 of the Quotation listed, among other storage depots, Bynum, Alabama, Milan (West), Tennessee, and Fort Estill, Kentucky, which were the inland storage-in-transit depots involved in this suit. Spann, Louisiana, BackUp Storage Depot was not listed in Quotation 31.

Item No. 7 of the Quotation made applicable to each shipment covered by Quotation 31 the through all-rail carload rate to the port of transshipment and Item No. 2 provided that there could be “one transit privilege” at a depot listed in Item No. 4.

17. Quotation No. 31 was superseded by A.A.R. Section 22 Quotation No. 31-A which was issued on December 16, 1942. A.A.R. Section 22 Quotation No. 31-B was issued on April 8, 1943, and it superseded Quotation 31-A. Quotation 31-B was in turn superseded by A.A.R. Section 22 Quotation 31-C on August 27, 1943, which as amended in certain respects remained in effect during the balance of 1943, the year involved in this suit.

As was the case with Quotation 31 in 1942, Quotations 31-A, 31-B, and 31-C during their respective periods in 1943 covered certain described ammunition which was shipped all-rail in carloads under Government bills of lading from points in the continental United States to a storage depot listed in Item'4 of each Quotation for storage and subsequently reshipped all-rail- to a port in the continental United States for transshipment by water to foreign countries, to insular possessions of the United States, and to Alaska by water or land.

Quotation 31-A and Quotation 31-B, until amended on July 29, 1943, permitted with respect to each shipment only one stopping in transit at a depot listed in Item 4. Amendment No. 4 to Quotation 31-B issued July 29,1943, and Quotation 31-C limited each shipment to being stopped in transit at not more than two storage depots designated in Item 4 of each Quotation. Bynum, Alabama, Fort Estill, Kentucky, and Milan, Tennessee, were listed as storage depots in Item 4 of each of those Quotations. At no time was Spann (North Slidell), Louisiana, ever listed as a storage depot in Quotations 31, 31-A, 31-B, 31-C, or in any amendment to any of those Quotations.

The maximum of two transit privileges at the Item 4 designated storage depots was permitted by Amendment 4 to Quotation 31-B and by Quotation 31-C as a result of written requests of the War Department. After one stopping in transit under Quotation 31, 31-A, and 31-B, until July 29, 1943, and two stops in transit under Quotation 31-B after July 29, 1943, and under Quotation 31-C, a shipment had to be reshipped by rail to a port for transshipment therefrom by water or to a railhead for transshipment therefrom by rail to points in Alaska.

18. The United States agreed to the terms and provisions of Quotations 31, 31-A, 31-B, 31-C and all amendments of such documents.

19. Oyster Point, Virginia, was included as a storage depot in Item 4 of Quotation 31. It was the view of the War Department that Oyster Point should not be designated a storage depot in the Quotation. Colonel Tourville, Chief, Freight Branch, Transportation Corps, War Department, addressed a letter to the General Freight Traffic Manager, Chesapeake and Ohio Railway Company (which railroad served Oyster Point), stating the War Department’s views. The letter read, in part, as follows:

It is the considered opinion of this office that Oyster Point, Va., should not be included in the general quotation. The storage plant at Oyster Point, Va., is not a general ammunition storage depot, but was constructed for specific purposes in connection with the operation of the Hampton Roads Port of Embarkation. Therefore, in order to avoid confusion and to permit the operation of the Oyster Point, Va. storage plant for the purpose and in the manner originally contemplated by the War Department, it is specifically requested that Oyster Point, Va. be eliminated from the general quotation and further consideration be given to the request of August 10, 1942 for a specific quotation covering this one point.

20. The Traffic Executive Chairmen’s Committee, after conferring with representatives of the War Department, decided to eliminate Oyster Point as a storage depot in Quotation 31 and to issue a new Section 22 Quotation applicable to Oyster Point. This action was taken on October 7-8, 1942, at a T.E.C.C. meeting where War Department representatives stated their position. The minutes of that meeting contain the following statement:

The Committee conferred with representatives of the-War Department regarding their request that Oyster Point, Va. be eliminated as a storage point in this-quotation.
It was explained that Oyster Point, Va. is a “back-up depot” for ordnance items to be trans-shipped by water through Newport News, Va.; that the customary procedure would be to consign shipments to Newport News,. Va. for trans-shipment but in the event boats are not available, shipments would be moved back to Oyster-Point, Va., there stored and subsequently returned to' Newport News for trans-shipment; that the Chesapeake & Ohio Railway had quoted under Section 22 a rate of 12 cents per hundred pounds in each direction between Newport News and Oyster Point. In some instances-shipments consigned to Newport News, Va. for transshipment are diverted enroute to or stopped at Oyster Point for storage and later reShipped to Newport News-for trans-shipment.
As to shipments which move through to Newport News and are returned Oyster Point for storage and aft-erwards reshipped to Newport News, the War Department desires protection of the applicable through export rate plus the Section 22 quotation rate of 120 in each direction between Newport News and Oyster Pointy plus such demurrage, storage or other accessorial charges which may accrue at either Newport News or Oyster-Point. With respect to Shipments which are diverted enroute to or stopped at Oyster Point, for storage and’ later reshipped to Newport News for trans-shipment, the War Department desires protection of the through export rate applicable from original point of shipment-over the route of movement through Oyster Point to-Newport News plus a transit charge of 3*40 for the storage privilege at Oyster Point, plus such demurrage,, storage, diversion or reconsignment or other accessorial charges which may accrue at either Oyster Point or Newport News.
The Committee authorized elimination of Oyster Point from A.A.R. Section 22 Quotation No. 31, and a new Section 22 quotation to be separately numbered covering the requests of the War Department as outlined above and as per Exhibit A attached.

21. The Traffic Executive Chairmen’s Committee drafted and submitted what became known as A.A.B. Section 22 Quotation 40 to become effective on and after October 9, 1942, to provide storage in transit of ammunition at the Oyster Point, Virginia, Back-Up Depot. However, because it was not responsive to the needs of the War Department, it was cancelled and never became effective. In order to meet the request of the War Department, the railroads issued A.A.B. Section 22 Quotation 40-A, which was accepted by the War Department. While the date of issuance was November 6, 1942, the Quotation by its terms was made retroactively effective on and as to shipments moving from points of origin on and after September 1,1942. While Quotation 40-A was issued to meet the needs of the War Department, including the naming of Maynard, Massachusetts, as well as Oyster Point, Virginia, as back-up depots, the War Department did not request that it be granted one transit under Quotation 31-Series and a second transit under Quotation 40-A.

22. Items 1, 2, and 4 of Quotation 40-A provided as follows:

Item No. 1. — Traffic Covered.
The traffic covered by and subject to this quotation is the commodities listed in Item No. 3 when originating at points in continental United States and moving all-rail, in carloads, under Government bills of lading, consigned to or intended for a port in continental United States for transshipment by vessel, which
(a) after arrival at the port to which consigned is returned to a back-up depot for storage and afterwards is reshipped to the port to which originally consigned for transshipment, or
(b) before arrival at the port to which consigned is diverted to or stopped at a back-up depot for storage and is later reshipped to the port to which originally consigned for transshipment, or
• (c) is initially consigned to a back-up depot for storage and is later reshipped to the port served by the back-up depot.
Item No. 2. — Transit Privilege.
Subject to compliance with all the terms and conditions of this quotation, each shipment of the kind referred to in Item No. 1 may be stopped in transit at one of the back-up depots named in Item No. 4 for storage by and at the expense of the Government and reshipped therefrom to the port to which originally consigned, or intended, for transshipment, at the through all-rail charges specified in Item No. 7. Such stopping is referred to in this quotation as the “transit privilege.” Each shipment shall be entitled to but one transit privilege. No shipment as to which any of the applicable terms and provisions of this quotation have not been complied with shall be entitled to the transit privilege.
«t» *1» $
Item: No. 4 .-Bach-up Depots.
A back-up depot is defined as a depot located near to and serving a port of transshipment to which Government shipments of commodities listed in Item No. 3 may be returned from such nearby port for temporary storage pending later reshipment to such port for transshipment.
The back-up depots at which the privileges herein provided for are available are:
Oyster Point, Va. (Serving Newport News, Ya.) Maynard, Mass. (Serving Boston, Mass.)

The commodities listed in Item 3 of the Quotation (as well as all amendments thereto) included the ammunition involved in this suit.

23. By Amendments Nos. 1 and 2 to Quotation 40-A Spann (North Slidell), Louisiana, was added to Item 4 as a back-up storage depot. Those two amendments were issued December 11, 1942, and February 17, 1943, respectively, in response to a December 3, 1942, request by the War Department which stated that the same conditions existed at Spann as obtained at Oyster Point, Virginia. From December 12, 1942, throughout the remainder of the effective period of Quotation 40-A, Spann was named therein as a back-up depot, but during that period it was never designated as a storage depot in the Quotation 31-Series. Also, during the effective period of Quotation 40-A, neither Bynum, Alabama, Fort Estill, Kentucky, nor Milan, Tennessee, were named in that Quotation as a back-up storage depot.

24. The War and Navy Departments were notified on September 11, 1943, that a shipment of ammunition was not entitled to one storage in transit under Quotation 31, 31-A, 31-B, or 31-C, and a second storage in transit under Quotation 40-A, on tbs basis of a through export rate from the original point of shipment to the port. Commencing in November 1943, representatives of those two departments entered into negotiations with the Traffic Executive Chairmen’s Committee to obtain a through export rate on shipments of ammunition from points of origin to ports with one transit privilege at an inland storage depot and a second transit privilege at a back-up storage depot. This culminated in the issuance on February 3, 1944, of Amendment 6 to A.A.R. Section 22 Quotation No. 31-C and, on the same date, in the issuance of A.A.R. Section 22 Quotation 40-B which cancelled Quotation 40-A.

25. Amendment No. 6 to A.A.IÍ. Section 22 Quotation 31-C provided for an inland storage depot transit and a back-up storage depot transit as follows:

The traffic covered by and subject to this Quotation is the commodities listed in Item No. 3, when originating at points in continental United States, heretofore or hereafter shipped by the War Department or Navy Department, hereinafter referred to as “the Government”, on Government bills of lading, all-rail, in carloads, consigned to
(a) a storage depot listed in Item No. 4, in the general direction of the port or rail head through which the shipment actually is transshipped, or
(b) a storage depot listed in Item No. 4, which is on a through route over which the lowest all-rail rate from original point of shipment is applicable to the port or rail head through which the shipment actually is transshipped, or
(c) such port of transshipment in.the first instance but which is stopped en-route at a storage depot listed in Item No. 4,
and subsequently reshipped by the War Department or Navy Department all-rail, in carloads, to
$ # $ $ $
(f) Effective as to shipments from, original point of origin on and after February 1, 1944, on shipments accorded one transit privilege under this Quotation to a back-up depot specified in A.A.R. Section 22 Quotation No. 40-B, amendments thereto or reissues thereof, for a further transit privilege under the. terms of that Quotation.

Item No. 2(b) of Quotation 40-B granted tbe privilege of one inland storage depot transit and one back-up depot transit as follows:

Item No. 2. — Transit Privilege.
* * * * *
(b) Notwithstanding the provisions of A.A.R. Section 22 Quotations Nos. 16-D and 31-C, as amended or reissued, a shipment of the kind referred to in Item No. 1, which has been stopped in transit not more than once, under the provisions of either Quotation No. 16-D or 31-C (but not both), may be accorded one further transit privilege under this Quotation.

26.' The transit privilege provided by Quotation 31-Series permitted storage in transit at inland storage points listed in the quotation, while the transit privilege provided by Quotation No. 40-Series permitted storage in transit at the back-up depots listed in the quotation as serving a particular port of transshipment. The Association of American Railroads concluded that the nature of the transit privilege in Quotation No. 40-A was different from the transit privilege in Quotation No. 31-C, and that prior to February 1, 1944, each quotation was independent of the other.

27. The two transit privileges accorded by Amendment No. 6 to Quotation 31-C and Quotation 40-B were effective as to shipments moving under either of those quotations from original point of origin on and after February 1,1944. Item 1 (f) of Amendment No. 6 to Quotation 31-C and Quotation 40-B were not applicable to the shipments involved in this suit since such shipments moved from their original points of origin during 1943 and were delivered to the port for transshipment not later than December 1943.

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 on its claim, and it is therefore adjudged and ordered that plaintiff recover of and from the United States the sum of seven thousand six hundred fifty-eight dollars and seventy-five cents ($7,658.75).  