
    (355 F. 2d 601)
    NORTHERN PACIFIC RAILWAY COMPANY v. THE UNITED STATES
    [No. 319-59.
    Decided January 21, 1966]
    
      
      Louis A. Harris, attorney of record, for plaintiff.
    
      Lewis A. Dille, with whom was Assistcmt Attorney General John W. Douglas, for defendant.
    
      Before Cowen, Chief Judge, Laramore, Dureee, Davis and ColliNS, Judges.
    
   Per Curiam :

This case was referred pursuant to former Rule 45 (a) (now Rule 57(a)) to Trial Commissioner Roald A. Hogenson, with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on May 7, 1964. The plaintiff has excepted to the opinion and certain of the findings of fact. Defendant has requested that the court adopt the opinion and findings of fact. The parties have filed briefs and the case has been submitted to the court after oral argument of counsel. The court agrees with the commissioner’s findings, his opinion and his recommended conclusion of law, as hereinafter set forth, and hereby adopts the same as the basis for its judgment in this case. Plaintiff is not entitled to recover on its petition and defendant is not entitled to recover on its counterclaim. Therefore, the petition and counterclaim are dismissed.

Opinion op Commissioner

This is a suit for additional charges in the alleged amount of $315,115.32 for the transportation by plaintiff railroad of numerous intrastate shipments of manganese ore for defendant from Philipsburg, Montana, to Butte, Montana, in 1953, 1954, 1955, and 1958. Under paragraph 14 of Appendix B of the rules of the court, the parties selected 65 representative Government bills of lading on which to try the issues of liability, reserving the determination of amount of recovery, if any, for further proceedings.

The manganese ore was purchased by defehdant in a stockpiling program instituted by Executive Order of the President pursuant to the Defense Production Act of'1950, 64 Stat. 798, enacted to encourage exploration, development, and mining of critical and strategic minerals and metals and to provide for their purchase and stockpiling by the Government to promote the national defense and in support of national security. Administration of the stockpiling program was duly delegated to the General Services Administration which issued special regulations for the purchase of domestic manganese ore at Butte and Philipsburg, Montana. The stated purpose of the program was to obtain from marginal or submarginal sources manganese ore which would not be otherwise produced, with the reservation that the Government could exclude presently established production of manganese ore from parti cipation in the program.

Minimum specifications and requirements of manganese ore to be purchased under the program were established by the GSA regulations. When these were met, defendant settled with the participants in the program, either by payments in accordance with a price schedule based on the percent of manganese contained in the ore, or on the basis of a price of $2.30 per long ton unit (22.4 pounds) of the recoverable manganese in the ore, subject to premiums and penalties and a flat treatment and handling charge of $16.60 per long ton. The average amount paid to the sellers of the ore in the 65 representative shipments was $24.96 per short wet ton. The necessary assay and recoverability tests were performed at Butte, Montana, after delivery of the shipments.

At all times pertinent in this case, there were no known major sources of high grade manganese ore in the United States. To obtain substantial amounts of manganese from domestic ores, such metal would have had to be extracted from low grade ores like those in the pertinent shipments. During the time of the shipments, the market value of commercial manganese ore varied from 60 to 65 cents per long ton unit, with the manganese content of such marketable ore ranging from 44 to 50 percent, as contrasted with the above-stated incentive price of $2.30 per long ton unit, paid by the defendant for low grade ores which had an average manganese content of only 23.4 percent.

The ores in the pertinent shipments had no market value and could not have been sold at any price other than to the defendant at incentive prices under the stockpiling program.

The shipments moved from Philipsburg on commercial bills of lading, prepared by the sellers of the ore, signed by plaintiff’s agent there, containing notations that they were issued in lieu of Government bills of lading, and later exchanged at Philipsburg for Government bills of lading signed for plaintiff by the same agent.

All of the Government bills of lading contained one of the following notations: “Subject to Condition 5,” or “Value subject to Condition 5,” or “Value subject to Condition 5 on reverse of B/L.” All but six of the commercial bills contained notations that valuation was as provided in Condition 5 of Government bills of lading.

Condition 5 was set forth on the reverse side of each Government bill of lading under the caption “General Conditions and Instructions,” as follows:

It is mutually agreed and understood between the United States and carriers who are parties to this bill of lading that * * *
& :Ji Hi % 5*C
5. TMs shipment is made at the restricted or limited valuation specified in the tariff or classification at or under which the lowest rate is available, unless otherwise indicated on the face hereof.

At the time of the shipments involved in this case, plaintiff maintained commodity rates per short ton based on the value per short ton of manganese ore transported in carload lots in Montana intrastate commerce from Philipsburg to Butte, published in Northern Pacific Railway Company Freight Tariffs 136-H and 136-1. These rates varied from 116 cents to 402 cents per short ton on valuations ranging from $10 to $100 per short ton. The rates effective prior to May 1,1954, on ore values of not over $10 and not over $15 were respectively 116 cents and 250.7 cents, as provided in Items 90-E and 83-B of Supplement 36-B to NP Tariff 136-H. Effective on and after May 1, 1954, such rates on the same two ore values were respectively 180 cents and 250.7 cents, as provided in Items 180 and 165 of NP Tariff 136-1.

On 9 of the 65 representative shipments, which 9 occurred in 1953 and 1954, plaintiff billed and defendant paid freight charges at the commodity rate of $2,507 per short ton, the rate provided for on ore value not over $15 per short ton in Item 83-B, Supplement 36-B, NP Tariff 136-H.

On 37 more of the representative shipments, occurring in 1954 and 1955, plaintiff billed and defendant paid freight charges at the commodity rate of $1.80 per short ton, the rate provided for on ore value not over $10 per short ton in Item 180 of NP Tariff 136-1. The remaining 19 representative shipments occurred in 1958.

In 1956, upon a postaudit, plaintiff considered that reference to Condition 5 of the Government bill of lading did not satisfy the commodity tariff requirements concerning certification of ore values, contained in Item 70-E of NP Tariff 136-H and Item 100 of NP Tariff 136-1, quoted in finding 8.

Other than the reference to Condition 5 on the commercial and Government bills of lading, plaintiff had not received any statement of value of the ore shipments, and requested but did not receive proof of value from the General Services Administration. Plaintiff then issued supplemental freight bills to defendant on all of the preceding shipments based on the Montana intrastate Class D rate, provided in Consolidated Freight Classification Nos. 20 and 21, NP Tariffs 717-N and 717-0, and thereafter billed defendant on all of the 1958 shipments on the basis of such class rates. The defendant, however, paid for the 1958 shipments only on the commodity rate for ore of a value not over $10 per ton.

The Class D rate is 33 cents per 100 pounds or $6.60 per short ton, equivalent to a commodity rate on ore valued at $250 per ton, and is applicable on the pertinent shipments if defendant is not entitled to the commodity rates.

Defendant’s counterclaim is based upon payments of freight charges on some of the shipments at a rate for ore of a value in excess of $10 per ton.

Plaintiff’s contention is that it is entitled to application of the Class D rate to all of the shipments because defendant failed to comply with the rules governing application of commodity rates on manganese ore in NP Tariffs 136-H and 136-1. It is not disputed that such rules control the application of the commodity rates, but rather whether there was compliance with the rules on the matter of certification of ore value. On manganese ore shipments between Philipsburg and Butte, Exception 2 of the commodity tariff rules specifically provided:

* * * When shipper is properly prepared to and does furnish certificate of value at point of origin acceptable to carrier, rates will be assessed on value so certified by shipper. * * *

The rules, as they pertain generally to ores and concentrates, provided that the carrier would waybill ore shipments at rates applicable to a valuation of $100 per ton, or at the rate applicable for the highest value shown, subject to the following:

(a) After arrival at smelter or other industry to which shipment is consigned and settlement between shipper and consignee is made on basis of return or assay by said smelter or industry, the value so determined and upon which such settlement is made * * * without deduction for freight charge, shall be certified to the carrier, and rate shall be revised in accordance with such certified value.

It is beyond dispute that the incentive prices paid by defendant to its suppliers of manganese ore could not have been and were not certified to plaintiff by the Government’s suppliers at point of origin of the shipments, and that such prices were determined on the basis of assay and recovera-bility tests performed after delivery of the ore shipments at Butte. Such prices were never certified to plaintiff.

Plaintiff’s position is that the incentive prices were the value to be certified under the commodity tariff rules, and that lack of certification of such value, either at point of origin or after delivery and testing, made the commodity tariffs inapplicable. Defendant claims that the value referred to in the tariff is the commercial market value, that the reference on the bills of lading to Condition 5 was a certification of value “acceptable to carrier” at point of origin, and that since such ores had no market value, defendant was entitled to the lowest commodity rate, or that provided for manganese ore of a value not over $10 per short ton.

The initial question in this case thus becomes the correct interpretation of the term “value” as used in the commodity tariff rules. The ordinary meaning of value is market value, or the fair price reached by a buyer and seller, both willing to act, and both informed about the open market. In the sale óf ores, value contemplates the commercial price reasonably to be paid upon consideration of the costs which will be incurred to produce therefrom a metal which can be profitably used or marketed. Hard reality forces one to conclude that assays and other ore tests in the smelting industry are directed to such commercial determinations, and that the term “value” in the commodity tariff rules means the commercial or market value as determined by the “settlement between shipper and consignee * * * made on basis of return or assay by said smelter or industry.” Eeasonable construction of the term “value” requires rejection of the contention that the artificially created incentive prices under the stockpiling program constituted the values of the ores. Proper rules of construction should not permit the unusual facts of this case to bring about a result which is contrary to the ordinary meaning of the term value and to the basic principle of commodity tariffs to fix rates on the actual value of the article shipped.

The issue then arises whether the requirement of the commodity tariff rules was met that the ore value be certified to the carrier. Under the facts of this case it must be inferred that both the shipper and the carrier were informed of the nature of the Government’s program of stockpiling manganese ores, and that it was well known that such ores were marginal and submarginal, were not otherwise marketable, and had no commercial value. In accordance with the above-quoted Exception 2 to the commodity tariff rules, each shipper was “properly prepared” to certify at Philips-burg that the ore was of a value not over $10 per short ton. No form of certification is prescribed in such rules, and in Exception 2, the only requirement is that it be “acceptable to carrier.”

During the first 3 years of the shipments, it was obviously “acceptable to carrier” that the notation on the various bills of lading referring to Condition 5 was a certification of value. Although the tariff rule provides that the carrier would waybill at a value of $100 per short ton in the absence of certification of value by the shipper at point of origin, plaintiff waybilled during the first 3 years on values not over $10 per short ton on most shipments, and on others at $15 per ton, but on no shipment at a value of $100 per ton. While waybilling is an internal function of the carrier, each waybill carried the Condition 5 notation, and in reliance upon such, notation as certifying value, plaintiff assessed commodity rates and billed defendant accordingly during tbe first 3 years. It is thus clear that both parties considered the Condition 5 notation as a certification of value, and accordingly, it is ruled that there was substantial compliance with the commodity tariff rules. Union Pac. R.R. v. United States, 145 Ct. Cl. 619, 172 F. Supp. 668 (1959).

Plaintiff relies on Capital Compressed Steel Co. v. Chicago, R.I. & Pac. R.R., 183 F. 2d 691 (10th Cir. 1950), cert. denied, 340 U.S. 905 (1950); and Dulien Steel Products, Inc. v. New York, N.H. & H. R.R., 287 I.C.C. 386 (1952) as precedents for holding in this case that there was a failure to comply with the commodity tariff rules. Unlike the circumstances in this case, however, there were no facts in either of the cited cases which would permit a holding that there was substantial compliance with the express requirements of the tariff rules involved in those oases.

Item 180 of NP Tariff 136-1, and its predecessor, Item 90-E, Supplement 36-B, NP Tariff 136-H, pertained to ore of a value not over $10 per short ton and provided the lowest rates under the pertinent commodity tariffs. Applicable in other respects, these rates would be applied to the shipments in suit only if the special provisions of such items were met that they applied only to ore “to be smelted” at Butte or East Helena, Montana, under Item 180, or at Anaconda, Butte, or East Helena, Montana, under Item 90-E.

The manganese ores were stockpiled upon delivery at Butte, Montana, where they have remained without being treated or processed in any way. No smelting plant has existed at Butte since 1920, but there have been at all pertinent times adequate plant facilities at Butte to process the stockpiled ore by flotation and nodulization, which processes are important steps in the preparation of ores for the smelting of the metal from concentrates. Transit privileges available to the defendant at the time of these shipments were for testing, grinding, flotation, or nodulizing, and all of the shipments were recorded for transit.

Plaintiff knew at the time the commodity tariffs were published and the pertinent shipments moved that metal could not be separated from ore by smelting at Butte, Montana. To give practical meaning to the tariff requirement, it is reasonable to conclude that it was intended that the language “to be smelted” at Butte meant to be subjected to the preparatory smelting processes of flotation or nodulization available at Butte, Montana. As the requirement that the ore is “to be smelted” is one of intention at the- time of the shipments, it is immaterial that the ores have not been processed even to this time, as the purpose of the Government procurement meets the requirement of Items 180 and 90-E of the commodity tariffs.

The record in this case shows that there were some shipments on which plaintiff billed and defendant paid commodity rates on ore values not over $15 per short ton. Defendant, however, has failed to sustain its burden of proof on its counterclaim to show the facts and circumstances on such shipments, which would entitle defendant to recover any of the charges claimed to be excessive.

It is my opinion that plaintiff is not entitled to recover on its petition, that defendant is not entitled to recover on its counterclaim, and that judgment should be entered accordingly.

Findings of Fact

il. Plaintiff, a Wisconsin corporation, is and was a common carrier by railroad of property in intrastate, interstate, and foreign commerce over its own lines and jointly with other carriers.

2. During 1953, 1954, 1955, and 1958, plaintiff over its own line transported for defendant a number of shipments of manganese ore from Philipsburg, Montana, to Butte, Montana.

3. The shipments moved from Philipsburg on commercial bills of lading prepared by the sellers of the ore and signed by plaintiff’s local agent there. These bills contained a statement that they were issued in lieu of Government bills of lading. They were later exchanged at Philipsburg for Government bills of lading signed for plaintiff by the same agent.

4. Pursuant to the provisions of paragraph 14 of Appendix B of the rules of this court, revised December 2,1951, the parties selected 65 representative Government bills of lading on which to try the issues of liability, reserving the determination of the amount of recovery, if any, for further proceedings.

5. All but six of the commercial bills of lading had one of the following notations: “Value subject to Condition 5 of GBL” or “Valuation as provided for in Condition 5 of Government bill of lading.” Of the six commercial bills of lading, four stated that the valúe did not exceed $25 per ton. The two remaining commercial bills of lading had no notations as to value.

Each of the Government bills of lading referred to Condition 5 of the Government bill of lading by one of the following notations: “Subject to Condition 5,” or “Value subject to Condition 5,” or “Value subject to Condition 5 on reverse of B/L.”

6. Condition 5 was set forth on the reverse side of each Government bill of lading under the caption “General Conditions and Instructions,” as follows:

It is mutually agreed and understood between the United States and carriers who are parties to this bill of lading that * * *
* * * * *
5. This shipment is made at the restricted or limited valuation specified in the tariff or classification at or under which the lowest rate is available, unless otherwise indicated on the face hereof.

7. At the time of the shipments involved in this case, plaintiff maintained commodity rates based on the value per short ton of manganese ore transported in carload lots in Montana intrastate commerce from Philipsburg to Butte, shown in Index No. 466, Northern Pacific Railway Company Freight Tariff 136-H, Montana Railroad Commission No. 880,1.C.C. No. 9524 (called NP Tariff 136-H); in Items 83-B and 90-E, Supplement 36-B to NP Tariff 136-H; and in Items 165, 180, and 420 of Northern Pacific Railway Company Freight Tariff 136-1, Montana Railroad Commission No. 933,1.C.C. No. 9889 (called NP Tariff 136-1).

8. Item 70-E of NP Tariff 136-H and Item 100 of NP Tariff 1B6-I published rules relating to “Valuation.” Both of these items contained the following statements:

MANNER OF WAXBILLING SHIPMENTS
Ore and concentrates, Mill or Smelter Products for which rates based on value per ton are published in tariff, will be waybilled at rates applying on valuation of $100.00 per ton, or when no rate is provided for that value, at the rate applicable for the highest value shown (For waybilling purposes only).
rules for determining rate upon which freight CHARGES SHALL BE ASSESSED
(a) After arrival at smelter or other industry to which shipment is consigned and settlement between shipper and consignee is made on basis of return or assay by said smelter or other industry, the value so determined and upon which such settlement is made (See Exception 1), without deduction for freight charges, shall be certified to the carrier, and rate shall be revised in accordance with such certified value.
(b) Carriers reserve the right to verify valuation by special assay or otherwise. (See Exception 2).
exception 1. The actual value of recoverable copper, lead or zinc, for the purpose of calculating settlement between shipper and consignee in order' to determine and apply rates named in tins tariff, but not for the purpose of liability for loss or damage, shall be deemed to be:
Copper___14 cents per pound
Lead_ 7 cents per pound
Zinc_ 8 cents per pound
+ exception 2. — When shipper is properly prepared to and does- furnish certificate of value at point of origin acceptable to carrier, rates will be assessed on value so certified by shipper. (Applies only on Manganese Ore moving from Philipsburg, Mont., to Butte, Mont.)

9. NP Tariff 136-1 publishes intrastate rates on manganese ore in' cents per ton of 2,000 pounds from Philipsburg, Montana, to Butte, Montana, in Items 165,180, and 420 which coyer ores with different values per short ton, summarized as follows:

NP Tariff 136-1 was effective May 1, 1954. Prior to that date, NP Tariff 136-H provided similar commodity rates on values per short ton, although the rates were somewhat lower. Items 83-B and 90-E, Supplement 36-B to NP Tariff 136-H, provided respectively commodity rates of 250.7 cents per short ton valued at not over $15, and 116 cents per short ton valued at not over $10.

10. A freight waybill was issued by plaintiff’s agent at Philipsburg to cover each carload movement to Butte. The waybill is an internal document for railroad use. Each waybill had one of the following notations: “Value subject to Condition 5 of the GBL” or “Valuation as provided in Condition 5 of GBL.” None of the shipments was waybilled by plaintiff’s agent at Philipsburg at the rate based on a value of $100 per ton, as provided in the above-quoted Item 100 of NP Tariff 136-1.

1L The waybills covering the shipments moving prior to 1958 had rates of either 180 cents, plus 15 percent, per short ton, or 250.7 cents per short ton, noted in the column headed “Eate.”

The waybills covering the 1958 shipments had noted in the “Eate” column 257 cents per short ton, but this rate had a line drawn through it, and a rate of 47 cents cwt. was inserted.

The Government bill of lading corresponding to each waybill had the same rate inserted in the bill of lading rate column that was inserted in the waybill rate column.

12. The Montana intrastate class rates under which plaintiff claims undercharges are Consolidated Freight Classification No. 20, Item 12390, Northern Pacific Tariff 717-N, 96.7 miles, Class D, plus applicable general increases, minimum weight 50,000 pounds, or Consolidated Freight Classification No. 21, Item 27410, Northern Pacific Tariff 717-0, 96.7 miles, Class D, plus applicable general increases, minimum weight 50,000 pounds.

This class rate is 33 cents per 100 pounds or $6.60 per short ton, and is equivalent to a commodity rate on ore valued at $250 per short ton.

13. On 9 of the 85 representative shipments, which 9 occurred in 1953 and 1954, plaintiff billed and defendant paid freight charges based on a rate of $2,507 per short ton. This was the then effective commodity rate for ore of a value not exceeding $15 per ton, as set forth in Item 83-B, NP Tariff 136-H.

On 37 of the representative shipments, which 37 occurred in 1954 and 1955, plaintiff billed and defendant paid freight charges based on a rate of $1.80 per short ton, plus 15 percent. This was the then effective commodity rate for ore of a value not exceeding $10 per short ton, as set forth in Item 180 of NP Tariff 136-1.

On the remaining 19 representative shipments which were made in 1958, plaintiff billed defendant for freight charges based on the then applicable Montana intrastate Class D rate, described in finding 12. The defendant however, paid charges for these shipments based on the commodity rate for ore of a value not exceeding $10 per short ton, as set forth in Item 180 of NP Tariff 136-1.

.Defendant’s counterclaim is based upon payments of freight charges made on some of the shipments at a rate for ore of a value in excess of $10 per ton.

14. In 1956, upon a postaudit, plaintiff’s Freight Accounts Office considered that reference to Condition 5 of the Government bill of lading did not satisfy the tariff requirements in Item 70-E of NP Tariff 136-H and Item 100 of NP Tariff 136-1, relating to the certificate of value provisions. Plaintiff had received no other statement of value of the shipments, and requested but did not receive proof of value from the General Services Administration. Plaintiff then issued supplemental freight bills to the defendant based on the Montana intrastate Class D rate, described in finding 12.

On February 17, 1959, Mr. Verne Winters, Eegional Director, Defense Materials Service, General Services Administration, wrote a letter to plaintiff certifying that “the actual value of the manganese ore which moved on Government Bills of Lading from Philipsburg, Montana, to Butte, Montana, in the period March 18,1958 through May 26,1958 did not exceed $10.00 per net ton.”

15. The manganese ore in the pertinent shipments was purchased by the defendant under a stockpiling program instituted by Executive Order of the President, pursuant to the Defense Production Act of 1950, 64 Stat. 798, which authorized the President in section 803(a) thereof to make provision—

(1) for purchases of or commitments to purchase metals, minerals, and other raw materials, including liquid fuels, for Government use or for resale; and
(2) for the encouragement of exploration, development, and mining of critical and strategic minerals and metals.
ífí V »{• ‡ ' 5¡!

Administration of the stockpiling program was duly delegated to the General Services Administration.

16. Pursuant to this program, special regulations were issued by the General Services Administration to provide for the purchase of domestic manganese ore at Butte and Philips-burg, Montana, the stated purpose being to obtain from marginal or submarginal sources manganese ore which would not otherwise be produced, with the reservation that the Government could exclude presently established production of manganese ore from participation in the program.

17. Minimum specifications and requirements for the purchase of manganese-ore by defendant under this program were established by GSA regulations. When the minirmrm requirements were met, the defendant settled with the participants in the program, either by payments in accordance with a price schedule based on the percent of manganese contained in the ore or concentrate, or on the basis of a price of $2.30 per long ton unit (22.4 pounds) of the recoverable manganese in the ore, subject to premiums and penalties and a flat treatment and handling charge of $16.60 per long ton.

The average amount paid to the sellers of manganese ore under these regulations on the 65 representative shipments was $24.96 per short wet ton.

For the determination of prices to be paid, the necessary assays and recoverability tests were performed after delivery of the shipments of manganese ore at Butte, Montana.

18. At the time of the shipments here involved, there were no known major sources of high grade manganese ore in the United States. To obtain substantial amounts of manganese from domestic ores, this metal had to be extracted from low grade ores of the kind shipped from Philipsburg to Butte under the Government’s stockpiling program. During the period in suit, the market value of commercial manganese ore varied from 60 to 65 cents per long ton unit, with the manganese content of such marketable ore ranging from 44 to 50 percent. The above-stated price of $2.30 per long ton unit was paid by the Government for low grade manganese ore having an average manganese content of 23.4 percent.

19. Prior to the institution of the Government program, and after its expiration, there was no market for the manganese ore involved in the pertinent shipments, nor was there any market for such ore during such program except the purchases by the Government. Such ore had no commercial value during the period of the pertinent shipments.

20. The manganese ores were stockpiled on a site near the plant of the Domestic Manganese and Development Company at Butte, Montana, and have remained there ever since. They have never been treated or processed in any way. No smelting plant has been in existence in Butte since 1920. The Domestic Manganese plant was equipped to process the stockpiled manganese ore by flotation and nodulization. At the time of these shipments, manganese ore originating at Philipsburg could be stopped in transit at Butte for testing, grinding, roasting, flotation or nodulizing, as provided in Item 28860 of North Pacific Coast Freight Bureau Tariffs 117-A and 117-B, I.C.C. Nos. 866 and 935. Each shipment of manganese ore in this suit was recorded for transit.

21. Item 90-E of Supplement 36-B (effective July 25, 1952) to NP Tariff 136-H provided that the rate from Philipsburg to Butte for ore of a value not exceeding $10 per short ton applied “only on ore to be smelted at Anaconda, Butte or East Helena, Montana.” Item 180 of NP Tariff No. 136-1 (effective May 1,1954) provided that the rate from Philipsburg to Butte for ore of a value not exceeding $10 per short ton applied “only on ore to be smelted at Butte or East Helena, Montana.” After the time of the shipments herein, said Item 180 was amended to include Anaconda as a smelting point.

22. Flotation is a process of concentrating ore, in which the minerals containing the metal are floated away from the gangue materials. Nodulization is a process of agglomeration wherein finely divided ores or concentrates are placed in a rotary kiln, and raised by application of heat to a temperature of incipient fusion, not to actual melting, but to a point where the fines become sticky and by action of the kiln are rolled into balls called nodules.

The term “smelting” in the technical sense means the melting or fusing of an ore to separate metal therefrom. In the operation of a smelter, flotation and nodulization are important steps in the converting of low grade manganese ore into a nodulized concentrate to be placed in the furnace for the melting out of the metal. In a general sense, flotation and nodulization are considered parts of the smelting process, although both fall short of the separation of the metal from the ore.

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 not entitled to recover on its petition, that defendant is not entitled to recover on its counterclaim, and the petition and counterclaim are therefore dismissed.  