
    401 F. 2d 789
    ROUTED THRU-PAC, INC. v. THE UNITED STATES
    [No. 384-66.
    Decided October 18, 1968]
    
      
      Aim F. Wohlsbetter, attorney of record, for plaintiff. Denning and, Wohlsbetter, Ernest H. Land and Martm Stereribuch, of counsel.
    
      John Gharles Banney, with, whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before Cowen, Chief Judge, Laeamoee, Dueeee, Davis, ColliNs, SueltoN and Nichols, Judges.
   DuREEE, Judge,

delivered the opinion of the court:

There are two causes of action in this case: (1) A claim for the transportation charges which plaintiff says it is entitled to under Items 15 and 145 of Military Basic Tender No. 1, relating to the movement into and out of storage-in-transit, and (2) A claim for transportation charges under Item 150 of Military Basic Tender No. 1, relating to the diversion or reconsignment of shipments.

We hold that plaintiff is not entitled to compensation for both movement into and out of storage-in-transit under the applicable Items of Military Basic Tender No. 1 for reasons to be discussed below. As for plaintiff’s second cause of action, we grant plaintiff’s motion to dismiss this cause of action with prejudice.

I

The pertinent facts of this case are as follows:

Plaintiff, a New York corporation, acts as an unregulated freight forwarder, operating under an exemption set forth in Section 402(b) of the Interstate Commerce Act, engaging in the forwarding of used household goods. On September 28, 1959, plaintiff entered into an unregulated freight forwarder agreement with the Military Traffic Management Agency (predecessor to the Defense Traffic Management Service) of the Department of Defense. Under this agreement, plaintiff held itself out to the Department of Defense to transport or to provide transportation of used household goods for compensation in do'or-to-door container service, and assumed complete responsibility for such shipments from point of origin to point of final destination.

Door-to-door container service involves the prepacking and loading of each shipment into specifically designed carrier-owned containers at the origin residence, transportation of the loaded containers to port of departure, arranging for the movement by ocean vessels or by air transportation of the loaded containers beyond the port of discharge to destination residence and placing the household goods into the new residence.

By letter of approval, dated October 13,1959, and reissues and amendments thereto, plaintiff was authorized by the Department of Defense to provide door-to-door container service between numerous points in the United States and points overseas.

In 1962, it became apparent that the then existing system of individual rate tender filings by household goods carriers precluded the efficient processing of the rate tenders by the Defense Traffic Management Service (DTMS). Transmission of rate information from DTMS to installation transportation officers was unduly delayed by manual processing of the thousands of individual tenders. At that time, Colonel Darrell H. Burnett, who was assigned to DTMS, was directed to formulate a better system of processing tenders and getting them out to the installation transportation officers. Colonel Burnett headed a committee of DTMS personnel which devised a system for submission of single-factor rates on key-punch cards hereinafter referred to as EAM cards for use with computers.

In addition to the single-factor rates published on EAM cards, charges for the accessorial services were to be contained in uniform Military Basic Tender No. 1 (hereinafter referred to as MBT No. 1), which was drafted by defendant and transmitted to plaintiff through its agent, Mr. Stein, in late 1962.

During the year 1963, plaintiff transported eight household goods shipments between points in the continental United States and points overseas for the Department of Defense pursuant to the terms and conditions set forth in MBT No. 1. These eight shipments form the subject matter of the first cause of action. All eight shipments were placed in storage-in-transit after movement to their respective destination ports or terminals. One shipment, the De Conno shipment, was also stored at origin, i.e., it was stored temporarily after pick-up at residence and before movement to the port for ocean transportation.

The warehouses in which a particular shipment is stored in transit is a warehouse which is selected by plaintiff and which has ‘been previously inspected and approved by the military for the area involved. One of the grounds for refusing such approval is that the location of the warehouse is an excessive distance from the pier or terminal.

The necessity for storage-in-transit arises out of the fact that it is sometimes necessary for the Department of Defense to put household goods into the transportation stream without knowing the ultimate time or place of unloading, i.e., without knowing the new residence or the exact date of arrival of the transferred military member. Plaintiff has admitted that it was aware of this fact, viz., that a number of shipments would be ordered into storage-in-transit and not directly to the destination residence, at the time it submitted its single-factor rates. MBT No. 1 explicitly provided for such situations.

The issue here is whether both the movement into and the movement out of storage-in-transit are accessorial or additional services subject to additional compensation under Item 145, i.e., in excess of the compensation of the single-factor rate, or whether one of the movements relating to SIT (e.y., movement into SIT when SIT occurs at destination) is already included within the single-factor rate.

The answer to this question must be obtained from MBT No. 1 itself:

Item 15 of MBT No. 1 provides in pertinent part:
The single factor transportation rates filed with DTMS on EAM tender format applies on personal effects and property * * * from the origin installation and a radius of fifty (50) miles * * * to the specified destination area.
Single factor transportation rates INCLUDE THE FOLLOWING SERVICES:
% ❖ ❖ " # *
c. All land and water transportation, EXCEPT:
(1) Additional land transportation charges for Pickup or Delivery on Btorage-in-Transit shipments as provided in Item 145 herein.
(2) When origin is beyond the 50 mile radius (within Alaska a 14 mile radius) additional land transportation charges as provided in Item 155 herein will apply. [Emphasis supplied.]
Item 145 of MBT No. 1 provides in pertinent part:
Section II- — -Additional Services
PICK-UP OR DELIVERY TRANSPORTATION RATES TO APPLY ON STORAGE-IN-TRANSIT SHIPMENTS (Subject to applicable rules)
APPLICATION
❖ ❖ ❖ * *
Rates apply depending upon location of warehouse as shown below, on pick-up or delivery of storage-in-transit shipments when point of pick-up or delivery and warehouse are both located within the same municipality or within a distance of 50 miles or less, (EXCEPT for ALASKA see Schedule E). [Emphasis supplied.]

Plaintiff’s position is that the word “pick-up” and the word “delivery” in Item 145 (see, supra) refer to two new and distinct movements not compensated under the single-factor rate, i.e., two movements which it does not perform when the shipment moves directly to the consignee (namely, there is the transportation from the destination terminal to the SIT warehouse, and then, at the end of the storage period, there is the transportation from the SIT warehouse to the consignee’s residence). The term “pick-up” in Item 145 refers to the first of these two movements, i.e., the movement into SIT, and the term “delivery” refers to the second, i.e., the movement out of SIT to the consignee. The above description applies, according to plaintiff, when SIT occurs at area of destination. Similarly, when the SIT occurs at area of origin, there are also two distinct movements which the shipper would not otherwise perform if the shipment moved directly from the origin residence to the destination of consignee. In other words, according to plaintiff, there is a “pick-up” and “delivery” on each storage-in-transit situation. Such pick-up and delivery constitute additional movements entitled to additional compensation pursuant to Item 145 as accessorial services not included in the single-factor rate, according to plaintiff. It should be noted that plaintiff’s interpretation requires us to read the word “or” in Item 145 as if it were “and”, that is, “[Additional] rates apply * * * on pick-up and delivery on storage-in-transit shipments * *

We find this interpretation of Items 15 'and 145 at best conceivable, but not reasonable, as it must be for plaintiff, to recover. See, Bishop Engineering Co. Inc. v. United States, 180 Ct. Cl. 411, 416 (1967). The same standard of reasonableness is a prerequisite for application of the ambiguity rule. See, Aero Mayflower Transit Co., Inc. et al. v. United States, 162 Ct. Cl. 233, 239 (1963). When MBT No. 1 is considered as a whole, there is no substantial and reasonable ambiguity in Item 145. Although we see numerous reasons why plaintiff’s interpretation is unreasonable, we shall only discuss the fundamental flaws.

Item 15 of MBT No. 1 states that single-factor transportation rates includes “all land and water transportation” with an exception for “Pick-up or Delivery on Storage-in-Transit shipments”.

It is undisputed in shipments not involving SIT that plaintiff is obliged in consideration for the single-factor rate to “pick-up” goods at the origin residence and “deliver” these goods to the destination residence. In other words, the single-factor rate necessarily includes one “pick-up” and one “delivery” and all the land and water transportation in between. More specifically, the forwarder (plaintiff) is required under the single-factor rate to move the goods from the destination terminal (pier or line-haul terminal) to the destination residence. It is this movement which constitutes the delivery. It should be pointed out that Item 15 did not specify that the “delivery” be made to a consignee’s new residence, but provided for deliveries to a “destination area”. It must have been contemplated, then, that some “deliveries” under Item 15 could and would be made to a warehouse for temporary storage.

Item 145 provides additional compensation only for “additional” or “accessorial” services rendered above and beyond what is required by the single-factor rate. Item 145 provides for additional rates “on pick-up or delivery of storage-in-transit shipments when point of pick-up or delivery and warehouse are 'both located within the same municipality or within a distance of 50 miles or less * * [Emphasis supplied.]

We find the use of the disjunctive “or” in the phrase “pick-up or delivery” persuasive that Item 145 intended to provide additional compensation for only the one additional movement when goods are placed in storage only once. We read this Item to mean that on a SIT shipment, where storage occurs at origin, there is one additional “pick-up”, but not an additional “delivery”, i.e., the goods are picked up once from the origin residence and once from the origin storage warehouse. The pick-up from residence to warehouse is covered by Item 145 as additional compensation. The second pick-up at origin, i.e., from the warehouse, is covered by the single-factor rate as defined by Item 15, since defendant is entitled to at least one “pick-up” under the single-factor rate. Where storage-in-transit occurs at destination, there is an additional “delivery”, but not an additional pick-up, i.e., the goods are delivered once to the warehouse and then delivered after storage to the destination residence. The first of the deliveries is compensated by the single-factor rate, since the single-factor rate necessarily includes one “delivery”. The second delivery is paid pursuant to Item 145 as additional compensation. Thus, we interpret Item 145 to mean that there is either an extra “pick-up” or an extra “delivery” depending on which end of the shipment storage occurs. This is the manifest meaning of the phrase “pick-up or delivery” in Item 145.

Plaintiff, however, points out, and rightfully so, that under certain circumstances, Item 145 may compensate a forwarder for pick-up and a delivery on a SIT shipment. This occurs when the goods are stored at both origin and destination. From this fact, plaintiff argues that the disjunctive “or” really means “and”. According to plaintiff, it then follows that a forwarder may recover added compensation pursuant to Item 145 for pick-up and delivery even when there is only one storage-in-transit. To us this does not follow, and certainly is not reasonable. The fact that a forwarder may be compensated for both pick-up and delivery on one shipment does not mean that MBT No. 1 really intended “or” to mean “and”, as plaintiff contends. Item 145 uses the disjunctive “or” because it refers to a singular “storage-in-transit”. This is perfectly consistent with the notion that a forwarder may claim compensation under Item 145 for both pick-up and delivery on one shipment, but only when there axe two storages-in-transit.

Another indication in Item 145 that plaintiff’s interpretation is unreasonable is revealed by an analysis of the clause in Item 145, which states that additional rates apply “on pick-up or delivery of storage-in-transit shipments when point of pick-up or delivery and warehouse are both located within the same municipality or within a distance of 50 miles or less * * *”. [Emphasis supplied.] Plaintiff is not reasonable in arguing that there is a pick-up and delivery on every storage-in-transit because this interpretation renders the above-cited clause meaningless. That clause requires that “both” the warehouse and the pick-up or delivery must be within the same municipality or within 50 miles or less. Since, according to plaintiff, there is a pick-up and delivery for every storage, we do not know whether both the warehouse and the pick-up point must be within the same municipality or whether both the warehouse and delivery point must be within the same municipality — perhaps, all three should be within the same municipality. The clause as interpreted by plaintiff does not give an answer. It does become meaningful, however, when we use the obvious and manifest meaning of Item 145, to the effect that there is either a pick-up or a delivery for any given storage-in-transit.

The most significant reason, however, for rejecting plaintiff’s interpretation as unreasonable is supplied by an analysis of the number of movements involved, especially those labeled as “additional” movements by plaintiff.

The fatal fallacy in plaintiff’s theory is that it claims two additional movements on storage-in-transit shipments where in fact there is only one additional movement, and for that additional movement plaintiff is paid an additional amount under Item 145.

By the terms of its Freight Forwarder Agreement and MBT No. 1, plaintiff undertook to transport or to provide transportation of used household goods for compensation in door-to-door container service. For this service plaintiff was paid a single-factor rate as defined by Item 15 of MBT No. 1 and added compensation for additional services, such as movements relating to storage-in-transit pursuant to Item 145. It is undisputed that plaintiff was obliged to make one pick-up and one delivery under the single-factor rate. The pick-up usually entailed moving the goods from the origin residence to the origin terminal (pier or railhead) then carrying the goods to the destination pier or terminal and finally moving the goods to the destination residence. Another way of casting this obligation is to say that the single-factor rate contemplated one movement to the origin terminal and one movement from the destination terminal. This is a crucial point which plaintiff has completely ignored. Now when we consider a storage-in-transit situation, we add one additional movement. For example, if the goods are stored at destination, there is one movement from the destination terminal to the warehouse and then a second movement from the warehouse to the destination residence. In other words, there are two movements after goods have reached the destination terminal. Item 145 compensated plaintiff for the one added movement (from warehouse to residence), while the other movement (from terminal to warehouse) is compensated under the single-factor rate. Plaintiff erroneously counts two additional movements. On the one hand, plaintiff may discern two additional movements by double counting the one movement from the destination terminal to which defendant is already entitled by virtue of the single-factor rate. This interpretation cannot be correct since it would result in double payment. On the other hand, plaintiff may count two additional movements by ignoring the one movement from the terminal to which Government is entitled by virtue of the single-factor rate. This, too, cannot be correct because there is no evidence whatsoever that Government gratuitously discharged plaintiff from any part of its obligation under the single-factor rate. Nor is there any evidence that Government ordered a non-performance of the obligation to move the goods at least once after the destination terminal. In either case, there is no legal or rational reason for plaintiff’s interpretation. Even using the “new” mathematics, we can only discern one movement in addition to the movement to which defendant is already entitled by virtue of the single-factor rate. The fact that in these eight cases the movement from the destination terminal was not to the destination residence is not significant in terms of plaintiff1’s obligation under the single-factor rate for at least one movement from the destination terminal. This is so for two reasons: first, a warehouse selected by the forwarder itself (with the approval of the military) is a reasonable substitute in terms of distance of movement and, in turn, cost; and second, Item 15 does not limit the single-factor rate to carriage of goods from residence to residence but rather “from the origin installation * * * to the specified destination area”.

Plaintiff’s citation to Gregory v. Barr, 203 F. 2d 364 (U.S. Emergency Ct. App. 1953) which deals with the Housing and Kent Act of 1947 as amended, 50 U.S.C. App. § 1891 et seq. (1958), is irrelevant, and has no bearing on the interpretation of MBT No. 1. Also of no avail is plaintiff’s citation to Beaty v. Brock & Blevins Co., Inc., 319 F. 2d 43 (6th Cir. 1963) which merely construes “additional work” to mean work not contemplated in the original specifications. In the instant case, storage-in-transit was contemplated by the original MBT No. 1. For these reasons, we hold that plaintiff is not entitled to recover on its claim under Item 145 of MBT No. 1, and its first cause of action is therefore dismissed.

II

With regard to plaintiff’s second cause of action, involving Item 150 of MBT No. 1, plaintiff itself has moved to dismiss this claim with prejudice.

It is important to emphasize that plaintiff’s motion to dismiss is “with prejudice”. This is not the situation where one party is attempting to avoid a final judgment only to then try again at another time or perhaps in a different court. Here plaintiff has acquiesced to the fact that the dismissal will be final, and will bar all future claims arising out of the same transactions.

The only consideration which weighs against our granting plaintiff’s motion is defendant’s argument that we should decide the question of law involved, i.e., proper interpretation of Item 150 MBT No. 1, for purposes of expediting the settlement of other claims involving Item 150 now waiting in the wings. If the proper interpretation of Item 150 had been fully litigated during the instant litigation, defendant’s argument for a decision on the merits might be persuasive. However, this is not the situation in the instant case. Neither plaintiff nor defendant adduced any oral testimony on the Item 150 issue. In addition, the written evidence pertaining to this issue is limited to shipping papers, which are of limited assistance in determining this issue. By way of contrast, in Trans Ocean Van Service v. United States, Ct. Cl. No. 137-66, not yet decided, there are over 160 exhibits, 269 pages of oral testimony and 68 pages in plaintiff’s brief directed to the resolution of the Item 150 issue. Given this situation, we are very reluctant to decide tbis issue now, if we ■have to reconsider the same issue in light of all the evidence a short time thereafter.

Finally, we note that in Smoot v. Fox, 340 F. 2d 301 (6th Cir. 1964) the Court of Appeals, in granting a writ of mandamus directing the court below to dismiss certain actions with prejudice, held it was an abuse of judicial discretion to deny a plaintiff’s motion for dismissal with prejudice. The court stated (at p. 302) :

No case has been cited bo us, nor have we found any, where a plaintiff, upon his own motion, was denied the right to dismiss his case with prejudice. * * *

Thus, there is no reason in law or in practice, which precludes our granting plaintiff’s motion.

Defendant, in the alternative, has suggested that we consider plaintiff’s Motion to Dismiss as one to Withdraw its Exceptions to the Commissioner’s Keport, and cites several cases as precedent in support of that suggestion. E.g., Roadway Express, Inc. v. United States, 163 Ct. Cl. 578 (1963). We reject this suggestion since plaintiff has only consented to a Motion to Dismiss with Prejudice, and has not consented to withdrawing its exceptions to the Commissioner’s KepOrt. The cases cited by defendant are not on point since there was mutual consent in those cases. See, e.g., Id. at 591.

We find also that defendant’s counterclaim regarding Item 150 in the amount of $29.40 has been paid in full by plaintiff, since the check tendered by plaintiff in satisfaction of this claim was accepted and deposited by defendant. See United States v. Isthmian Steamship Co., 359 U.S. 314, 318-19 (1959) ; See generally, 70 C.J.S., Payment, § 24.

For these reasons, we dismiss plaintiff’s second cause of action with prejudice and also grant plaintiff’s motion to dismiss defendant’s first counterclaim and second counterclaim which are also dismissed.

FiNDmas OK Fact

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

1. Plaintiff is a corporation organized and existing under the laws of the State of New York, having its principal place of business at 350 Broadway, New York, New York, and is an unregulated freight forwarder, operating under an exemption set forth in section 402(b) of the Interstate Commerce Act, and engaging in the forwarding of used household goods in specifically designed containers between points in the United States, on the one hand, and on the other, points overseas, 'both for military and commercial accounts.

2. On September 28, 1959, plaintiff entered into an “unregulated freight forwarder agreement” with the Military Traffic Management Agency (predecessor to the Defense Traffic Management Service) of the Department of Defénse. Under this agreement, plaintiff held'itself out to the Department of Defense (including the Department of the Army, the Department of the Navy, the Department of the Air Force, the United States Coast Guard and the United States Marine Corps) “to transport or provide transportation of used household goods for compensation” in door-to-door container service and to assume complete responsibility for such shipments from point of origin to point of destination.

3. Door-to-door container service involves the prepacking and loading of each shipment into specially designed carrier-owned containers at the origin residence, transportation of the loaded container to port of departure, arranging for movement via ocean vessels or by air, transportation of loaded containers beyond port of discharge to destination residence, and placing the household goods into the new residence.

4. By letter of approval, dated October 13, 1959, and reissues and amendments thereto, plaintiff was authorized by the Department of Defense to provide door-to-door container service, as described in the preceding paragraph, between numerous points in the United States and points overseas.

5. Prior to March 1, 1968, plaintiff performed the transportation service contemplated by the aforementioned agreement and letters of approval (and in conformity with the Defense Supply Agency regulations) under various tenders submitted by Routed Thru-Pac, Inc., and accepted by the Defense Traffic Management Service (hereinafter sometimes referred to as DTMS) of the Department of Defense. These tenders set forth in detail the rules, regulations, rates and charges governing military household goods shipments.

6. The Household Goods Forwarders Association of America, Inc. (hereinafter sometimes referred to as the Forwarders Association), of which plaintiff is a member, is a nonprofit association, incorporated under the laws of the District of Columbia. The association represents exempt household goods forwarders such as plaintiff — its active membership consisting of 44 such forwarders — hi dealings with various departments of the Federal Government. The Forwarders Association also performs certain service functions for its membership such as the dissemination of information which is furnished by federal agencies, such as the Department of Defense, and which is of interest to its membership.

7. In 1962 it became apparent that the then existing system of individual rate tender filings by household goods carriers precluded efficient processing of the rate tenders by the Defense Traffic Management Service (DTMS). Transmission of rate information from DTMS to installation transportation officers was unduly delayed by manual processing of the thousands of individual tenders. At that time Colonel Darrell H. Burnett, who was assigned to DTMS, was directed to formulate a better system of processing rate tenders and getting them out to the installation transportation officers. Colonel Burnett headed a committee of DTMS personnel which devised a system for submission of rates on key punch cards, hereafter referred to as EAM cards, for use with computers.

8. The household goods transportation industry was advised of the impending EAM system for filing household goods rates and the industry was requested to form a committee of its representatives to work with DTMS in organizing the system. The initial meeting of the industry committee with representatives of DTMS was held in Washington, D.C., on October 3,1962. In attendance at this meeting was Calvin W. Stein, who was the Executive Director of the Household Goods Forwarders Association of America, Inc., and Mr. F. L. Wyche, Executive Secretary of the Household Goods Carriers’ Bureau. At the meeting of October 3, 1962, and at other meetings attended by Mr. Stein, the discussion centered on the procedures for filing the single-factor rate system on EAM cards. Also discussed was the subject of what transportation service was to be included in the single-factor rate, and what accessory services would have to be placed in a basic tender. There was no discussion at these meetings of specific terms or language for the basic tender.

9. On November 28, 1962, Colonel Burnett wrote to Mr. Stein concerning the impending establishment of a uniform military basic tender, enclosing a copy of the tender. This was the first information Mr. Stein received of the specific terms and language of the basic tender.

10. Pertinent pants of Colonel Burnett’s letter follow:

Inclosed is a copy of a basic tender which meets the minimum requirements for establishing rules and regulations governing the through Government Bill of Lading rates in all modes published on the EAM Card Tender format.
This basic tender contains not only the Rules and Regulations governing the application of through Government Bill of Lading single factor rates in all modes, but rates and charges for additional services not included in the single factor rates. These provisions will be used as the basis for establishing contracts with the participating carriers, i.e., formulating the Government Bill of Lading.

11. By letter of November 30,1962, Mr. Stein transmitted Colonel Burnett’s letter, together with a copy of the basic tender, to all active members of the Forwarders Association, including plaintiff. The letter said, in part:

Enclosed herewith is a copy of a letter from the Defense Traffic Management Agency, and a copy of their Basic Tender.
The Household Goods Forwarders Association of America, has completely avoided any discussion of any joint rate making as not within the scope of its objectives and purposes. It bas desired to preserve for individual membership right of complete freedom in establishing of rates.
However, enclosures make it clear that charges set forth in the Basic Tender are mandatory and the observance of these changes constitute a condition precedent to transporting Military Household Goods, there being no freedom of action as to level of these charges reserved for individual Carriers. In view of this, it is the opinion of our General Counsel that if the membership so desires the Association can file the Basic Tender on behalf of the membership.
% * ❖ *
You are reminded herewith that comments, or discussion, of the rates prescribed in the DTMS Basic Tender are specifically not desired, nor are they in order.

12.- The aforesaid basic tender, designated Military Basic Tender No. 1, hereinafter sometimes referred to as MBT No. 1, was duly filed on plaintiff’s behalf by the Forwarders Association, became effective March 1, 1963, and, together with supplements and reissues thereof, covered the military household goods shipments involved herein.

. 13. Generally speaking, the structure of compensation under MBT No. 1 was as follows: Single-factor rates, filed by the carriers on electronic key punch (EAM) cards, covered the entire straight-line transportation from origin to destination, and the Military Basic Tender itself covered the charges to be assessed for the performance of additional or accessorial services, and provided for allowances from the single-factor rate which were applicable in certain circumstances, e.g., Items 20 and 25 provided allowances to the Government when Government-owned or conex containers were utilized and when shipments originated from a storage warehouse and the preliminary packing had already been performed.

14. The single-factor rates applied from a military installation in the United States, or from an area within a 50-mile radius thereof, to an entire country overseas and, in the reverse direction, from a military installation overseas, or within a radius of 50 miles thereof, to an entire state in the United States.

15. Military Basic Tender No. 1 was drafted by the Defense Traffic Management Service of the Department of Defense. The draft resulted after examination and excerpting from individual tenders on file with DTMS.

16. Plaintiff did not participate directly in the negotiation or drafting of Military Basic Tender No. 1 nor did it delegate power to anyone to negotiate its terms. Plaintiff, by a limited power of attorney, delegated authority to Mr. Stein, of the Forwarders Association, to file the MBT on plaintiff’s behalf after being advised there was going to be a tender. But, this power of attorney was limited to such filing and expressly provided that the level of rates or charges for the subject transportation was “reserved for * * * [plaintiff’s] individual determination.”

17. An essential ingredient of the system which was instituted with the issuance of the Military Basic Tender was that all carriers participating in the subject traffic would have to have the identical basic tender on file with DTMS, so that the only competitive factor among these carriers would be the single-factor rate. Neither plaintiff nor any other carrier participating in the subject traffic could make any change in the MBT without first obtaining the concurrence of the entire industry.

18. Certain modifications of the proposed basic tender distributed by Colonel Burnett on November 28, 1962, were made prior to its effective date of March 1, 1963. Mr. Stein suggested at least two such modifications, relating to Items 150 and 155. These suggestions benefited the carriers which were members of Mr. Stein’s association. But, there is no evidence that these suggestions originated with plaintiff, or that plaintiff saw or had knowledge of the terms of the tender prior to November 30,1962.

19. When a member of the Armed Forces is reassigned from a point in the United States to a point overseas, or vice versa, there is often some uncertainty, when the shipment of household goods is tendered to the carrier, as to the location of his new residence and the exact time he will arrive at his new station. Consequently, such, shipments are quite frequently placed in storage in the destination country, and the carrier then awaits further delivery instructions from the base transportation officer or the consignee. This procedure is known as placing the shipment hi “storage-in-transit,” hereinafter sometimes referred to as SIT.

20. SIT was recognized in MBT No. 1, and various provisions with respect thereto were incorporated therein. For instance, a carrier is entitled to additional charges for the additional services of storage and warehouse handling under Item 140. Under Item 145 another additional charge is provided for the pick-up or delivery of SIT shipments.

21. Item 15 of MBT No. 1 provides in pertinent part:

Single factor transportation rates include the fol-LOWXNG SERVICES :
a. Packing, unpacking and the use of packing material. * * *
b. Servicing and unservicing of appliances, except for the articles and provisions named in Item 115 herein.
c. All land and water transportation, except :
(1) Additional land transportation charges for Pickup or Delivery on Storage-in-Transit shipments as provided in Item 145 herein.
(2) When origin is beyond the 50 mile radius (within Alaska a 14 mile radius) additional land transportation charges as provided in Item 155 herein will apply.
d. Export and import service charges.
e. Removal and placement of each article in the residence or other building.
f. Hoisting or lowering of articles.
g. Carrying of Piano.
h. Ferry and bridge service charges applicable in the United States.

22. Plaintiff’s first cause of action is based on its interpretation of the second paragraph of Item 145 of MBT No. 1, which read as follows:

SECTION n — ADDITIONAL SERVICES
PICK-UP OR DELIVERY TRANSPORTATION RATES TO APPLY ON storage-in-transit shipments (Subject to applicable rules)
APPLICATION
*****
Rates apply depending upon location of warehouse as shown below, on pick-up or delivery of storage-in-transit shipments when point of pick-up or delivery and warehouse are both located within the same municipality or within a distance of 50 miles or less, (except for Alaska see Schedule E).
* Hs ❖ *

23. Item 130 of MBT No. 1 (Additional Services — Extra Pick-Up or Delivery) and Item 155 (Additional Services— Pick-Up Outside 50 Mile Radius of Origin Installation) are found to use the terms “pick-up” and “delivery” in a manner which denotes that pick-up is a service performed at origin and delivery is a service performed at destination.

24. The language in Item 145 of MBT No. 1 and Item 145 of MBT No. 20 is identical. The executive secretary, Mr. Wyche, of the Household Goods Carriers’ Bureau, publishers of Military Rate Tender No. 20, is experienced in drafting rate tenders and in the door-to-door container transportation business. Mr. Wyche at trial testified that to him the term pick-up is always associated with the origin of the shipment. He could not state that the words pick-up and delivery had an established meaning recognized by all parties who transport household goods in the door-to-door container mode. His testimony was consistent with a letter he sent to DTMS on August 24, 1964, which read as follows:

This will confirm discussion with Mr. Gus Sampogna with respect to interpretation of Item 145 of our Basic Tender No. 20 which governs application of the single factor overseas rates wherein we reaffirmed that our instructions to participants are that the pickup or delivery rates apply only once. In other words, on a shipment originating in Germany destined to Washington, D.C. and directed to storage-in-transit in Washington, the single factor rate would cover delivery to the storage warehouse and the rate in Item 145 would cover delivery from the storage warehouse to residence.
On a shipment originating in Washington, D.C. destined to Germany with storage-in-transit at origin, the rate in Item 145 would cover delivery from residence to storage warehouse. The single factor rate would cover transportation from the warehouse to residence at the overseas point.

25. During the year 1968 (subsequent to March 1), plaintiff transported eight household goods storage-in-transit shipments between points in the continental United States and points overseas for the Department of Defense pursuant to the terms and conditions set forth in MBT No. 1. These eight shipments form the subject matter of this action. All eight shipments were placed in SIT after movement to their respective destination ports or terminals. One shipment, the DeConno shipment, was also stored at origm, i.e., after pickup at residence and before the movement to port for ocean transportation.

26. The warehouse in which a particular shipment is stored in transit is a warehouse which is selected by the plaintiff and which has been previously inspected and approved by the military for the area involved. Plaintiff can only use a warehouse that has been approved by the military. One of the grounds for refusing approval is that the location of the warehouse is an excessive distance from the pier or terminal.

27. Listed below are (a) the mileage actually traversed in moving the eight subject shipments, (b) the mileage which would have been traversed had these shipments moved directly to the consignee, (c) the difference between the actual and “direct delivery” mileage, and (d) after audit, the payment retained by plaintiff under Item 145 for movement of the goods from the SIT warehouse to delivery.

PIER (or Line Haul Terminal) to Warehouse WAREHOUSE TO DELIVERY TOTAL ACTUAL MILES PIER (or Line Haul Terminal) to Direct Delivery ADDITIONAL MILEAGE (Difference Between Actual Mileage and “Direct Delivery” Mileage) Payment Retained by Plaintiff for Movement from Warehouse to Delivery

Miles Miles Miles Miles Miles

1. Allen_ 8 31 $123.36

2. Canterbury.. 32 42 61.78

3. Gleason..... 35 47 73.50

4. Ross.. 24 36 83.58

6. DeConno... 21 32 42.60

6. Cockroft_ 19 26 122.72

7. Walters_ 28 65 50.00

8. Hathaway... 12 25 100.24

28. The shipment of household goods belonging to Major Furman Allen from Columbus, Ohio, to Taipei, Taiwan, is illustrative of seven of the eight disputed shipments. The shipment moved from Columbus, Ohio, to the pier or terminal in Taipei, Taiwan, and then to the storage-in-transit warehouse where it was stored for 17 days. The shipment was then delivered from the warehouse to the residence of Major Allen. For the services rendered, plaintiff was paid a line-haul rate of $38.80, which is not in dispute, plus storage for 17 days of $41.12, a warehouse handling charge of $41.12 and an appliance service charge of $25 none of which are in dispute, and a charge of $123.36 for delivery from the storage-in-transit warehouse to the residence. If the household goods had been delivered directly from the pier to the residence of Major Allen, plaintiff would have had to transport the goods 15 miles from the pier to the residence. The direct delivery from the pier to the plaintiff’s residence of 15 miles would have been included in the $38.80 line-haul rate charged by the plaintiff. Plaintiff actually transported the goods 23 miles from the pier to the storage-in-transit warehouse. At the completion of the storage period, plaintiff transported the household goods 8 miles from the storage-in-transit warehouse to the point of final delivery for a total actual mileage of 31 miles. Under Item 145, plaintiff was compensated $123.36 for delivery of the goods the 8-mile distance from the storage-in-transit warehouse to the place of delivery.

29. Another shipment was of household goods belonging to Sergeant Eobert W. Canterbury, which plaintiff was to transport from Germany to Ft. Devens, Massachusetts. SIT was authorized and accomplished at destination and before final delivery. The facts about the mileage involved and the payment received are set forth in finding 27. The pertinent facts are also set forth there concerning the shipment for Major Lloyd J. Hathaway from Biloxi, Mississippi, to Elmendorf Air Force Base, Anchorage, Alaska. SIT was also authorized and accomplished at destination in this shipment prior to ultimate delivery.

30. The shipment of household goods belonging to Airman Enrico E. DeConno, from Kindley AFB, Bermuda, to Staten Island, New York, involved storage-in-transit at both origin and destination. For this shipment plaintiff was paid a line-haul rate, storage charges, and warehouse handling charges which are not in issue. Defendant’s witness, Mr. David Lod-wick, conceded that plaintiff was entitled to an additional $8.52 for storage in Bermuda. Plaintiff, after audit, received compensation for one movement of the goods at origin and one movement of the goods at destination under Item 145 of MBT No. 1. The notice of overcharge sent to plaintiff by the GAO which disallowed two payments under Item 145 for the storage-in-transit at origin indicated that the charge which was allowed was for the movement out of SIT. Witness Lodwick testified that this notation on the notice of overcharge was a mistake, that the payment should have been for delivery to warehouse at origin.

31. Plaintiff, under its interpretation of Item 145 of Military Basic Tender No. 1, for a period of time after March 1, 1963, which includes the eight subject shipments, consistently billed defendant for movement both into and out of SIT. Plaintiff’s president testified that plaintiff’s billing practices under MBT No. 1 resulted from a meeting of plaintiff’s employees engaged in billing. They analyzed MBT No. 1 page by page and concluded that Item 145 provided for payment both into and out of SIT.

32. On each of the eight shipments in suit plaintiff was paid, prior to audit, for the movement into and out of storage-in-transit. Plaintiff customarily is paid by the defendant the amount it bills, prior to audit, as a matter of administrative practice.

33. Some months subsequent to each of these eight shipments, the General Accounting Office, hereinafter sometimes referred to as the GAO, issued to the plaintiff notices of overcharge, wherein the GAO stated there was no authority for the “delivery into storage charge” and demanded that plaintiff refund this charge to the Government.

34. Plaintiff unsuccessfully protested the action of the GAO. Thereafter, plaintiff refunded to defendant, in compliance with the GAO order and under protest, the charges in dispute, in the total amount of $690.74.

3,5. On November 13, 1964, DTMS advised plaintiff and other household goods carriers that Item 145 of MBT No. 1 would be revised so as “to avoid ambiguity.”

36.This revision of Item 145, which was subsequently incorporated in Supplement No. 8 to MBT No. 1, issued December 5,1964, and accepted by DTMS on December 1,1964, provided in pertinent part, as follows:

PIOK-TJP OR DELIVERY TRANSPORTATION RATES TO APPLY ON STORAGE-IN-TRANSIT SHIPMENTS
APPLICATION
Bates shown below apply as follows, depending upon location of warehouse:
a. For pickup of shipment at residence and transportation to the warehouse at origin for storage-in-transit, or
b. For delivery of inbound shipments from the warehouse to final destination. * * *
c. In the event that a shipment is stored at origin in accordance with paragraph a. above, and, in addition is stored at destination in accordance with paragraph b. above, a separate charge for each service will be assessed. However, not more than one origin charge and one destination charge will be applicable for a single shipment.

37. If plaintiff is entitled to recover on its first cause of action, the amount due plaintiff is $699.26. This figure reflects a stipulated value of $690.74 for the additional Item 145 charges claimed by plaintiff and $8.52 which defendant concedes is due plaintiff for the DeConno shipment.

38. No part of the sum referred to in the preceding paragraph has been received by plaintiff, although demanded by it. No action has been taken on this claim, or any part thereof, by Congress or any other department or agency other than as set forth above. Plaintiff is the sole owner of this claim and no assignment or transfer of said claim, or any part thereof, has been made.

39. Plaintiff’s second cause of action and defendant’s two counterclaims are based on varying interpretations of Item 150 of Military Basic Tender No. 1.

40. On March 11,1968, plaintiff filed a Motion to Dismiss the Government’s First Counterclaim and 'also to Dismiss Plaintiff’s Second Cause of Action with Prejudice.

41. Plaintiff tendered to defendant a check dated 12 February 1968 in the amount of $29.40 in payment of defendant’s First Counterclaim. The reverse side of said check shows that defendant deposited it for collection on February 26, 1968.

42. All eight shipments in suit were covered by single-factor rates filed on EAM cards, plus the rules, regulations and additional charges published in Military Basic Tender No. 1, effective March 1,1963.

43. MBT No. 1 was published by the Household Goods Forwarders Association for plaintiff. The language of the tender was selected by the Defense Traffic Management Service from existing tenders on file. Interpretations of the tender language by the plaintiff are to be adopted where reasonable since defendant prepared the basic tender. WPC Enterprises, Inc. v. United States, 163 Ct. Cl. 1, 6, 323 F. 2d 874, 876-77 (1963), and cases cited therein.

44. Item 145 of MBT No. 1 uses a disjunctive in the crucial phrase “rates apply * * * on pick-up or delivery of storage-in-transit shipments.” [Emphasis supplied.] Plaintiff’s witnesses did not point out language in MBT No. 1 which specifically allowed a charge for delivery into, as well as delivery out of, storage-in-transit. It is found that compensation for both movement into and movement out of a single storage-in-transit is not specifically provided by Item 145.

45. Plaintiff’s interpretation of Item 145, which forms the basis for its first cause of action, is that at both origin and destination of a shipment the word pick-up refers to movement into storage-in-transit and. the word delivery refers to movement out of storage-in-transit. Defendant says that pick-up applies at origin and delivery at destination and that this is clear and unambiguous. Defendant further says that as the single-factor rate contemplates only one further movement beyond pier terminal or railhead, plaintiff is entitled under Item 145 to be paid only for the movement out of SIT.

46. Defendant bas not proved by substantial evidence that in 1963 trade usage had given the terms pick-up and delivery a special meaning for members of the door-to-door container transportation industry. Defendant’s expert witness, Mr. Wyche, testified that pick-up had a special meaning to him. This witness, however, was not able to state that the words pick-up and delivery have a recognized meaning throughout the door-to-door container transportation industry.

47. In regard to Item 145, the divergent interpretations of the parties prior to litigation of this case are not a significant aid to interpretation. Plaintiff consistently billed for two movements. Defendant by action of the GAO consistently allowed payment for only one movement in regard to each placement of a shipment into storage-in-transit. Defendant in auditing a single shipment — the DeConno shipment — indicated that payment under Item 145 in relation to storage-in-transit at origin was for delivery from storage. This audit action does not establish a uniform contemporaneous construction of Item 145 by both parties and is not entitled to great weight on the issue of ambiguousness. The DeConno audit action, while inconsistent with the basis for defendant’s present position that pick-up is movement into SIT at origin and delivery is movement out of SIT to the consignee at destination, does reflect defendant’s insistence that plaintiff is entitled to payment for only one movement in regard to each placement of a shipment into SIT.

48. Plaintiff’s interpretation of pick-up 'and delivery is unreasonable when Military Basic Tender No. 1 is considered in its entirety. Payment for both movement into storage-in-transit and movement out of the same storage-in-transit is inconsistent with the single-factor rate set forth in Item 15. The single-factor rate contemplates and includes one movement of the goods at origin and one movement at destination for which plaintiff is not entitled to an accessorial charge. All related clauses in a tariff must be read and considered together and only a reasonable doubt, as to the meaning of the entire tariff, will justify a finding of an ambiguity. Christensen v. Northern Pac. Ry. Co., 184 F. 2d 534, 536 (8th Cir. 1950).

49. In this case plaintiff has not proved a reasonable uncertainty in the meaning of Item 145 in view of the entire basic tender. There is an insufficient factual basis for adoption of plaintiff’s interpretation of Item 145. Plaintiff’s interpretation is conceivable but not reasonable. See Bishop Eng. Co. v. United States, 180 Ct. Cl. 411 (June 1967) ; Southern Constr. Co. v. United States, 176 Ct. Cl. 1339, 364 F. 2d 439 (1966). Plaintiff is not entitled to recover on its first cause of action.

50. Plaintiff’s second cause of action is dismissed with prejudice. See, Smoot v. Fox, 340 F. 2d 301 (6th Cir. 1964).

51. Defendant’s first counterclaim is dismissed since this claim has been satisfied by full payment.

52. Defendant did not except to the Commissioner’s dismissal of its second counterclaim and therefore we sustain that finding by the Commissioner.

CONCLUSION OF LAW

Upon the foregoing findings of fact and conclusion of law, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover on its claims which are therefore dismissed. Defendant’s counterclaims are also dismissed. 
      
       A more thorough recitation of facts, as found by Chief Commissioner Marion T. Bennett, and which we adopt with slight modifications as findings of the court, follow the opinion.
     
      
       49 U.S.C. § 1002(b).
     
      
       An essential ingredient of this system was that all carriers participating in the subject traffic would have to have the identical basic tender on file with DTMS, so that the only competitive factor among these carriers would be the single-factor rate. No one carrier participating in the subject traffic could mate any change in the MBT without first obtaining the concurrence of the entire industry.
     
      
       For purposes of simplifying the ensuing discussion, it -will be assumed that storage-in-transit occurs at area of destination, rather than at area of origin, unless specifically stated otherwise.
     
      
       Item 15, MBT No. 1 does not specify that all movements from the destination terminal must be made to a destination residence but only that the movements be made to a “destination area”.
     
      
       Defendant did not except to the Commissioner’s Finding No. 61 which concluded : “Defendant is not entitled to recover on its second counterclaim”.
     
      
       For the DeConno shipment, the above table reflects mileages and charges relating to SIT at destination only.
     
      
      
         A reference mark which appears adjacent to this title “denotes change In wording the result of which Is neither an Increase nor a reduction In charges.”
     