
    426 F. 2d 329
    
    TRANS OCEAN VAN SERVICE v. THE UNITED STATES
    [No. 137-66.
    Decided May 15, 1970]
    
      
      Alan F. 'Wohlstetter, attorney of record, for plaintiff.
    
      John O. Bcmmy, with, whom was Assistant Attorney General William D. BuoJeelshcms, for defendant.
    Before CqweN, Chief Judge, Laramore, Durfee, Davis, OolliNS, SkeltoN, and Nichols, Judges.
    
   Oowen, Chief Judge,

delivered the opinion of the court :

The plaintiff, a California corporation, sues to recover additional compensation in connection with the transportation for the defendant (represented 'by the Department of Defense) of household goods 'belonging to military personnel 'between points in the continental United State and points overseas. This is a test case, and the final disposition of the issues involved in this case will govern the disposition of similar issues in many other cases that are pending before the court.

Since June 30, 1961, the plaintiff has been authorized by the Department of Defense to transport, for compensation, the household goods of military personnel between points in the continental United State and points overseas, by two modes of service:

(1) door-to-door container service; and
(2) door-to-door Container-Government (MSTS) service, otherwise known as Mode 5.

Door-to-door container service involves the pre-packing and loading of each shipment of household goods into specially designed, carrier-owned containers at the origin residence of a military family, transporting the loaded containers to the port of departure, arranging for the movement of the shipment by ocean-going vessel or by air to the port of discharge, transporting the loaded containers beyond the port of discharge to the destination residence of the family, and placing the household goods into the new residence. The plaintiff assumes complete responsibility for the shipment from the point of origin to the point of destination.

Door-to-door Container-Government (MSTS) service, or Mode 5, is identical with door-to-door container service except that water transportation between military ocean terminals is provided by vessels owned by, or under charter to, the defendant’s Military Sea Transportation Service (“MSTS”).

Prior to March 1, 1968, the plaintiff performed the transportation service previously described pursuant to various tenders which were submitted by the plaintiff to, and accepted by, the Department of Defense. Those tenders set forth in detail the rules, regulations, rates, and charges governing shipments of military household goods.

During the early 1960’s, many other companies, in addition to the plaintiff, were engaged in the business of transporting military household goods for the Department of Defense by means of door-to-door container service and Mode 5. Each company performed such service pursuant to tenders which it individually submitted to the Department of Defense for acceptance.

By the fall of 1962, it had become apparent that the then-existing system of individual rate tender filings by carriers of military household goods precluded the efficient processing of the rate tenders by the Defense Traffic Management Service (“DTMS”) of the Department of Defense. The transmission of rate information from DTMS to the transportation offices at military installations was unduly delayed by the manual processing of thousands of individual tenders. Accordingly, DTMS drafted a uniform basic tender with the idea that all companies engaged in the transportation of military household goods would be required to adopt the provisions of the uniform tender instead of formulating their own tenders on an individual basis.

Copies of the uniform basic tender drafted by DTMS were distributed by that agency to members of the household goods transportation industry on or about November 28, 1962. Members of the industry were informed by DTMS that all companies wishing to continue to participate in the transportation of military household goods must submit to DTMS not later than January 22, 1963, either individually or through an association to which they belonged, the uniform basic tender as a replacement for the many diverse tenders which the companies had previously submitted to DTMS. Members of the industry were further informed by DTMS that all tenders previously submitted would be canceled on February 1, 1968. Thus, the adoption by a company of the provisions of the uniform basic tender was a prerequisite to continued participation by the company in the household goods traffic of the Department of Defense.

The -uniform basic tender drafted by DTMS was officially designated as Military Basic Tender No. 1 (“MBT No. 1”). It was duly filed with DTMS by the Household Goods Forwarders Association of America, Inc. (“Forwarders Association”) , on behalf of the plaintiff and the other companies that belonged to the Forwarders Association. MBT No. 1 became effective on March 1, 1963; and it, as supplemented and reissued, covered all the shipments of military household goods that are involved in this case.

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 MBT No. 1 itself covered the charges to be assessed for the performance of additional or accessorial services, and provided for allowances from the single-factor rates in certain circumstances.

A single-factor rate applied from a military installation in the continental United States, or from an area within a 50-mile radius thereof, to an entire country overseas; and, in the reverse direction, such a rate applied from a military installation overseas, or within a 50-mile radius thereof, to an entire .State in the United States.

The “Normal Port” Diversion Claims

These claims arose out of situations wherein a shipment of military household goods would originate at an overseas point and be consigned to a certain point in the continental United States, and the shipment, after its arrival at the port of debarkation but prior to its departure therefrom, would be diverted in accordance with instructions from the defendant to a point in the United States other than the one stated in the bill of lading.

The question to be decided is the interpretation and application of the phrase “ordinarily be serviced,” which appears in the following portion of Item 150 of MBT No. 1:

DIVERTED PRIOR TO SHIPMENT LEAVING PORT OF DEBARKATION:
U.S. DESTINATION: If shipment_is diverted to another point within the Continental United States that would ordinarily be serviced through the same Port of Debarkation, apply the single factor transportation rate applicable to the new destination point.
If shipment is diverted to another point within the Continental United States that would not ordinarily be serviced through the same Port of Debarkation, the Port of Debarkation will be considered the destination point and the single-factor transportation rate to such point will be applicable. Further transportation to the new destination point within the Continental United States will b8 at the diversion rate * * *.

•Shipments Nos. 20 and 30 are illustrative of the “normal port” diversion claims. The facts with respect to the shipments are not in dispute and are set forth in findings 30-37. The parties are agreed that there was a diversion in each instance, but they disagree as to plaintiff’s entitlement to mileage diversion charges provided for in Item 150 of MBT No. 1. Both shipments originated In Germany and were destined for Brooklyn, New York. After arrival at the Port of New York, shipment No. 20 was diverted by order of defendant to Rochester, New York, and shipment No. 30 was similarly diverted to Areola, Illinois. 'On shipment No. 20, plaintiff billed the defendant for, and was paid, an amount based upon the single-factor rate between the point of origin in Germany and the Port of New York, plus a diversion fee of $5. On shipment No. 30, plaintiff billed the defendant for, and was paid, an amount based upon the single-factor rate between the point of origin in Germany and the Port of New York, plus the diversion mileage charge from the Port of New York to Areola, Illinois, and the $5 fiat diversion fee. Thereafter, the General Accounting Office [hereinafter sometimes referred to 'as “GAO”] issued a notice of overcharge against the plaintiff with respect to the latter shipment. The amount of the overcharge, which plaintiff refunded, was computed by applying the single-factor rate from the point of origin in Germany to Areola, Illinois, and adding the flat $5 diversion fee. Plaintiff here seeks to recover diversion mileage charges under Item 150 in the amount of $55.51 due for the movement of shipment No. 20 from the Port of New York to Bochester, New York, and in the amount of $115.58 for the movement of shipment No. 30 from the Port of New York to Areola, Illinois.

As shown above, Item 150 provides in substance that when a shipment is diverted prior to leaving the port of debarkation to a destination which would not “ordinarily be serviced” by that port of debarkation, the single-factor rate applies from the point of origin to the port of debarkation, and the diversion mileage rate applies from the port of debarkation to the diverted destination. On the other hand, when the diverted destination would “ordinarily be serviced” by the port of debarkation, the single-factor rate applies from the point of origin to the diverted destination. Therefore, in assessing the applicable rates for such shipments that were diverted prior to leaving the port of debarkation, a determination must be made as to what port would ordinarily or normally service the diverted destination.

At the trial and in its brief, plaintiff took the position that the sole test to be employed in determining whether the port of debarkation is the normal port for the diverted destination is to ascertain whether such port is the port closest to the final destination point.

Prior to the time the shipments in issue moved, plaintiff had filed with the Department of Defense a document entitled “Non-Domestic Military Household Goods Service Tender,” which, among other things, contained a list of plaintiff’s port terminal agents in the United States and in some foreign countries. Also, with respect to shipments originating in some foreign countries, the tender listed certain stateside ports.

■On shipments which moved prior to March 1, 1963, the GAO, in its audit of transportation 'bills submitted by plaintiff, referred to the list of stateside ports and then advised plaintiff that, in the absence of a definition in the service tender of the normal port of entry, the port nearest to the destination would be considered as the normal port. Plaintiff was so informed in hundreds of letters received from the GAO. Plaintiff’s position in this case is, to a very large extent, based on GAO’s use of the “closest port” concept.

We reject this interpretation of the pertinent contract provisions for several reasons. The above-quoted portion of Item 150 of MBT No. 1 is not phrased in terms of whether the port of debarkation is the port nearest to the final destination point of a diverted shipment. The evidence also shows that, while the relative proximity of possible ports of debarkation to the destination point is an important factor in the carrier’s selection of the port to which a shipment is moved, the carrier also considers other matters in attempting to achieve the lowest cost in handling the shipment. Other considerations include the frequency of sailings and transit time to the port of debarkation, the cost of handling shipments to each port, and the practicability of consolidating a particular shipment with other shipments for land transportation.

There are hundreds of ports in the United States, including some which were rarely, if ever, used by plaintiff, and possibly others which could not be used for lack of necessary facilities. In oral argument, plaintiff’s attorney conceded that the port closest to the inland destination point should not be utilized in every instance to determine the normal port, because Item 150 was intended to include ports that are regularly used to service the traffic.

The defendant first contends that Item 150 of MBT No. 1 should be read in conjunction with plaintiff’s non-domestic service tender. We cannot agree with this view, because there was no definition in the service tender of the port or ports that would ordinarily be used. The tender merely listed certain stateside ports for shipments originating in various countries. In the letters mentioned above, the GAO pointed out that in the absence of a definition of the normal port of entry in the service tender, the port closest to the destination would be considered the normal port.

Moreover, the unre'butted evidence and our examination oí plaintiff’s service tender persuade us to find that the purpose of the tender was to describe the facilities and services which the carrier proposed to provide in order to qualify as a carrier of household goods for the Department of Defense. The tender did not purport to quote rates or to provide rules or formulae for the computation of freight charges. The carriers were not required to do so and many of them did not list stateside ports in the tenders.

Defendant next argues that if the service tender does not show the normal port for a particular shipment, the question is a factual one to be determined by reference to such sources as routing guides used 'by the carrier, the carrier’s method of billing, and other external facts. Although a carrier’s method of billing, consistently followed before a dispute arises, may be relevant in some circumstances, we think that plaintiff’s billing practices on these shipments would be an unreliable guide for the resolution of an issue affecting so many carriers. The same is true of the routing used by a particular carrier.

The determination of the port ordinarily used on a shipment-'by-shipment basis as a matter of fact, as the defendant proposes, contravenes the basic purpose of MBT No. 1. Its purpose was to assure uniformity in the assessment of charges under the military basic tender, especially accessorial charges such as the diversion charges in issue, so that the only competitive variance among the carriers would be the single-factor transportation rates filed on electronic key-punch EAM cards (findings 9, 11, and 15). See also finding 17; Routed Thru-Pac, Inc. v. United States, 185 Ct. Cl. 428, 401 F. 2d 789 (1968). Thus, if the normal port should be ascertained on the basis of the varied 'billing practices followed by different billing clerks or the routing used by each carrier, the resulting diversion and other accessorial charges would vary from carrier to carrier and, from time to time, by the same carrier.

Since there was no definition of the normal port of entry in plaintiff’s service tender or in MBT No. 1, we must look to other evidence to determine the meaning of the language that gave rise to this controversy. On September 15, 1966, the Household Goods Forwarders Association of America, Inc., acting for plaintiff and other carriers, published Military Basic Tender No. 1-A, which cancelled MBT No. 1. It was a negotiated agreement and was accepted by the Department of Defense and became effective on October 1,1966. In MBT 1-A, Item 150 was rewritten to provide that the normal port of entry was to 'be determined by reference to Appendix 1, a copy of which accompanies this opinion. The appendix provides as follows:

Appendix 1 indicates the Ports of Embarkation or Debarkation ordinarily used to service shipments moving between CONUS and each country indicated, and are to 'be considered as the basis upon which the various diversion charges in this item are computed. The ordinary port utilized on a shipment destined to CONUS will 'be determined by selecting the port which is closest to the final destination, to which the shipment is diverted. The ordinary port utilized for shipments with an oversea destination will be determined by selecting the port closest to the origin of the shipment. [Joint Exhibit No. 4].

The appendix contains a list of foreign countries arranged ■in ten separate groups. Opposite each group there are listed ports in the United States that are ordinarily used to service shipments moving between the continental United States and each of the countries named in that group.

We resort to these provisions of MBT 1-A in reliance on the rule that, in the absence of other evidence, courts may look to subsequent agreements and acts of the parties to determine their mutual construction of the language of a previously executed agreement. National Aircraft Maintenance Corp. v. United States, 145 Ct. Cl. 505, 171 F. Supp. 946, cert. denied, 361 U.S. 895 (1959); Victory Inv. Corp. v. Muskogee Elec. Traction Co., 150 F. 2d 889, 893 (10th Cir.) cert. denied, 326 U.S. 774 (1945); Kinard v. Mutual Benefit Health & Acc. Ass’n, 108 F. Supp. 780, 789 (W.D. Ark. 1952).

We hold, therefore, that Appendix 1 is a clarification, mutually adopted by the parties, of what was intended by the provisions of Item 150 of MBT No. 1 with respect to the ports “ordinarily” used during the period in issue here (January 17, 1968 through September 14, 1966). From the record as a whole, we conclude that this is not only a permissible construction of the language of Item 150 'but that it is also a reasonable interpretation which conforms to the basic purpose for which MBT No. 1 was issued. “If a tariff is subject to different constructions, an interpretation which is reasonable and consistent with the purpose of the tariff should be preferred to a construction which is impractical or which leads to absurd consequences.” National Van Lines, Inc. v. United States, 355 F. 2d 326, 332 (7th Cir. 1966).

It follows from this construction of Item 150 of MBT No. 1 that the Port of New York was the normal port of entry for shipment No. 20, which was diverted to Bochester, New York, and that plaintiff’s charges for the shipment should be computed on the basis of the single-factor rate applicable from the point of origin to destination, plus the diversion fee of $5.

On shipment No. 30, the Port of New York, the port of debarkation in this instance, was not the port normally utilized for shipments to Areola, Illinois. Since Baltimore, Maryland, was the normal port of entry for the shipment, plaintiff is entitled to the line haul charges from Germany to New York at the single-factor rate and the diversion mileage charges from New York to Areola, plus the flat $5 diversion charge.

The “Port” Diversion Claims

These claims involve the issue of whether, when a shipment originating at an overseas point was taken by the plaintiff (or its agent) from the pier at the port of debarkation in the United States to the plaintiff’s (or the agent’s) warehouse which serviced the port for storage-in-tnansit pending the receipt of delivery instructions from the defendant, the shipment should be regarded as having left the port of debarkation in relation to a subsequent diversion order from the defendant.

Shipment No. 31 is illustrative of this issue. It was picked up in the Philippine Islands for transportation to Oakland, California. The bill of lading stated that storage-in-transit (“SIT”) was authorized at the carrier’s port facility for a period of not to exceed 90 days, and that the plaintiff was to “hold for disposition instructions.” Upon the arrival of the shipment at the port of debarkation, it was removed from the pier by the plaintiff’s agent and was stored in the agent’s warehouse at Oakland, which serviced the port, for a period of 20 days pending the receipt of delivery instructions from the defendant. At the end of that time, and while the shipment was still in the Oakland warehouse, the defendant directed that the shipment be diverted to the Blytheville Air Force Base in Arkansas.

The question now presented for determination with respect to shipment 31 is whether the diversion to the Blytheville Air Force Base in Arkansas took place before or after the shipment left the “port of debarkation.”

In connection with this problem, the portion of Item 150 of MBT No. 1 that was applicable to a shipment diverted before it left the port of debarkation has been discussed in the preceding part of this opinion. The portion of Item 150 that was applicable to a shipment diverted after it left the port of debarkation provided in pertinent part as follows:

DIVERTED AFTER SHIPMENT HA'S LEFT THE PORT OF DEBARKATION:
U.S. DESTINATION: If shipment is diverted to another point within the Continental United States, the point of diversion will be considered the destination point, and the single factor transportation rate to the point of diversion will apply. Further transportation will be considered a new shipment and the diversion rate of 50 cents net cwt. per 20 highway miles, or fraction thereof, will be assessed. * * *

With respect to shipment 31, the plaintiff billed the defendant for charges based upon the single-factor rate from the point of origin in the Philippine Islands to the State of California, a diversion fee in the amount of $5, $35.38 for delivery into storage, $9.51 for storage and warehousing, and the diversion mileage rate from Oakland to the Blytheville Air Force Base, Arkansas. These charges, which were based by the plaintiff upon the theory that shipment 31 was diverted after it left the port of debarkation, were paid by the defendant without a prior audit.

Subsequently, the General Accounting Office audited the account and then collected from the plaintiff the sum of $413.01 as an alleged overcharge. The GAO’s action was based on the conclusion that shipment 31 was diverted before it left the port of debarkation, and, therefore, that the single-factor rate from the point of origin in the Philippine Islands to the State of Arkansas was applicable. The plaintiff seeks to recover the $413.01 in the present action.

Boiled down, the question under consideration here with respect to shipment 31 is whether it left “the port of debarkation” when it was removed from the pier by the plaintiff’s agent and was taken to the agent’s warehouse which serviced the port for SIT while awaiting delivery instructions from the defendant. In this connection, the term “port of debarkation” is not defined in MBT No. 1. However, the word “port” is defined in the dictionary as follows:

* * * a place where ships may ride secure from storms: harbor, haven * * *[;] a harbor town or city where ships may take on or discharge cargo: the starting point or the destination of a voyage: a place to or from which goods may be shipped * * * [;] the entire geographical harbor area of a place * * *. [Webster’s Third New Inteenational Dictionary (Unabridged, 1968).]

It will be noted that none of the dictionary definitions of the word “port” justifies the narrow concept of the term “port of debarkation” for which the plaintiff contends in connection with the issue now under consideration — i.<?., that it means only the pier onto which a shipment is unloaded from a ship.

As previously indicated, the bill of lading — which constituted the contract between the plaintiff and the defendant with respect to the transportation of shipment 31 — stated that “SIT not to exceed 90 days is auth at carrier’s port facility” (emphasis supplied). Thus, the warehouse of the plaintiff (or its agent) which serviced ¡the port of debarkation was characterized in the contract itself as a “port facility,” i.e., as part of the port for the purpose of the contract between the parties. This was consistent with the dictionary definition of “port” as “a harbor town or city where ships may take on or discharge cargo,” or as “the entire geographical harbor area of a place.” Consequently, it appears that a warehouse operated by the plaintiff (or its agent) for the servicing of a port of debarkation was a port facility and part of the port for the purposes of Item 150 of MBT No. 1; and, accordingly, that shipment 31 did not leave the port of debarkation when it was taken from the pier to the warehouse.

Plaintiff is not entitled to any additional compensation on the ground that shipment No. 31 was diverted after it left the port of debarkation, and the petition should be dismissed to the extent that it claims any compensation on that ground.

The Claims Based on “Diversions” to omd from SIT

The issues presented by these claims are whether there was a diversion, within the meaning of Item 150 of MBT No. 1, when the plaintiff was instructed by the defendant to place a shipment in storage at the destination point while awaiting delivery instructions, instead of making delivery to the destination address shown on the bill of lading, and whether there was another diversion when the defendant subsequently directed that the shipment be delivered to the owner’s new residence.

In connection with this problem, it should be mentioned that when a member of the Armed Forces is reassigned from a point within the United States to a point overseas, or vice versa, there is often some uncertainty at the time when his household goods are tendered to the carrier as to the exact location of his new residence and the exact time when he will arrive at his new station. This is well understood by members of the household goods transportation industry. In such a situation, it is customary to consign the household goods to the owner at the military installation where he is expected to serve, to authorize storage-in-transit, and to instruct the carrier that, upon the arrival of the shipment at the rail-head or port servicing the destination military post, the carrier shall notify the post transportation officer before delivering the goods or placing them in storage. If the uncertainty concerning the property owner’s new residence and time of arrival has not been resolved when the shipment reaches the railhead or port servicing the destination military post, the post transportation officer directs the carrier to store the shipment while awaiting delivery instructions from the transportation officer or the owner of the household goods. This procedure is known as placing the shipment in “storage-in-transit” or in “SIT.”

The warehouse for SIT is selected by the carrier, although it must be a facility which has previously been inspected and approved by the military officials.

The claims based upon alleged diversions to and from SIT are illustrated by shipment No. 4, which originated at a point in Rhode Island and was consigned to “Transportation Officer, Bldg. #4 Jager,” the destination being given on the bill of lading as “Aschaffenburg, Germany.” The bill of lading authorized storage-in-transit for not to exceed 90 days at destination and instructed the plaintiff to notify the transportation officer at Aschaffenburg upon the arrival of the goods and prior to placing them in storage.

Upon the arrival of the shipment at the railhead servicing Aschaffenburg, the plaintiff’s agent notified the post transportation officer and was directed to place the shipment in storage-in-transit pending the receipt of delivery instructions. The SIT was accomplished by the plaintiff’s agent in the agent’s warehouse located at Darmstadt, Germany. Subsequently, the X-daintiff’s agent was directed to deliver the shipment to the property owner’s new residence in Aschaffen-burg, and this was done.

On shipment 4, the plaintiff billed the defendant for — and was paid without prior audit — the sum of $242.77, which included the line-haul transportation charge from the origin point in Rhode Island to Germany and, mter alia, a charge of $10.43 for delivery into storage.

In the present action, the plaintiff is endeavoring to recover under Item 150 of MBT No. 1:

(1) a $5 diversion charge and a diversion mileage charge in connection with the alleged diversion of the shipment from the bill-of-lading consignment address in Aschaffen-burg to the SIT warehouse in Darmstadt; and
(2) a $5 diversion charge and a diversion mileage charge in connection with the alleged diversion of the shipment from the SIT warehouse to the property owner’s new residence.

The term “diversion” was defined in Item 150 of MBT No. 1 as meaning—

* * * any change from original delivery instructions, including consignment or reconsignment of a destination point after commencement of transportation service, when authorized 'by appropriate government transportation officer * * *.

Item 150 further provided that “Upon receipt of diversion instructions and such is accomplished, a $5.00 Diversion Charge will apply in addition to the following provisions, rates and charges”; and this was followed by, inter alia, the portions of Item 150 relating to shipments diverted after arriving at, but prior to leaving, the port of debarkation, and shipments diverted after leaving the port of debarkation, as described in the two immediately preceding parts of this opinion.

Plaintiff’s position is that the transportation contract is the bill of lading, and the consignment address and destination marked on the bill of lading constitute the “original delivery instructions” mentioned in Item 150 of MBT No. 1. The language of that Item states that changes from “original delivery instructions” include “consignment or reconsignment of a destination point * * Therefore, argues plaintiff, when shipment No. 4, destined for Aschaffenburg and consigned to the transportation officer at Building No. 4 Jager, was ordered into SIT at Darmstadt, the shipment was reconsigned, the delivery instructions changed, and a diversion occurred. When the goods were later ordered out of SIT, to be delivered at the owner’s residence in Aschaffen-burg, plaintiff maintains that the goods were again reconsigned, once again changing the original delivery instructions and causing another diversion.

However, these contentions ignore both the factual context of the contract provisions and the bill of lading’s authorization for storage-in-transit. The factual setting was always quite clear to both parties, i.e., that plaintiff contracted to make one pick-up, one delivery, and to furnish all the transportation in between. The parties recognized that delivery to a residence could not always be made immediately, because a property owner might not be located in his new residence when his goods arrived at the railhead or port servicing the destination. For this reason, the delivery instructions quite commonly did not specify immediate delivery to a residence, but instead authorized storage-in-transit in the event such storage was necessary. This was precisely the case in shipment No. 4. When the goods arrived in Aschaffenburg, they were ordered by defendant to be placed in SIT, and plaintiff chose his warehouse in Darmstadt as the storage area. Contrary to plaintiff’s argument, however, the arrival of the goods at the railhead servicing Aschaffen-burg was not a delivery. It was not until the goods were placed in SIT in Darmstadt that the plaintiff had made a “delivery” in accordance with 'and as authorized by the original delivery instructions on the bill of lading. See Routed Thru-Pac, Inc. v. United States, 185 Ct. Cl. 428, 435, 401 F. 2d 789, 793 (1968). The delivery to SIT was not a diversion, as plaintiff has urged, because it involved no change from the original delivery instructions. To the contrary, it was a fulfillment of a possibility contemplated by both parties and authorized by the bill of lading, which is the transportation contract.

Plaintiff’s argument that orders to place the goods in SIT constituted a consignment or a reconsignment also lacks merit, because the destination point was originally, and never ceased to be, Aschaffenburg. The goods were never ordered to be delivered to Darmstadt. Rather, they were ordered to be placed in storage, and the plaintiff chose his warehouse in Darmstadt as the most convenient place. This, quite clearly, was not a consignment or a reconsignment within the meaning of Item 150. Similarly, when the goods were later transferred from SIT in Darmstadt to the owner’s residence in Aschaffenburg, plaintiff performed not a diversion of the original delivery, but rather a second delivery. The second delivery was obviously contemplated by the original delivery instructions and was in fact ordered by additional delivery instructions, i.e., after the first delivery to SIT. The defendant concedes that the second delivery is compensable as an additional service under Item 145 of MBT No. 1.

Accordingly, the petition should be dismissed as to the plaintiff’s claims for a $5 diversion charge and a diversion mileage charge in connection with the placement of shipment No. 4 in the warehouse of the plaintiff’s agent for SIT, and for a $5 diversion charge and a diversion mileage charge in connection with the delivery of the shipment from the SIT warehouse to the property owner’s new residence. Plaintiff is entitled to be paid under Item 145 of MBT No. 1 for the movement of the shipment from the SIT warehouse at the destination point to the property owner’s new residence.

BIT Extensions

Another issue presented in this case is whether there was a diversion of a shipment, within the meaning of Item 150 of MBT No. 1, when the shipment was placed in storage-in-transit at the destination point while awaiting delivery instructions and the SIT period was subsequently extended beyond the period specified in the bill of lading.

Shipment No. 18 illustrates the issue outlined in the preceding paragi'aph. This shipment originated in Germany and was consigned to the property owner at Ft. Riley, Kan sas. The bill of lading authorized SIT for not to exceed 90 days. Upon the arrival of the shipment, the transportation officer at Ft. Riley ordered that the shipment be placed in storage-in-transit, and this was accomplished by the plaintiff’s agent in the agent’s warehouse at Junction City, Kansas. After the shipment had been stored for 68 days in Junction City, the transportation officer at Ft. Riley ordered that the shipment be diverted to Ft. Sheridan, Illinois. Subsequently, the post transportation officer at Ft. Sheridan instructed the plaintiff’s agent in that vicinity to place the shipment in SIT while awaiting delivery instructions; and the plaintiff’s agent placed the shipment in the agent’s warehouse at Des Plaines, Illinois. While the shipment was in the Des Plaines warehouse, the owner of the goods requested the transportation officer at Ft. Sheridan to extend the SIT time authorized for this shipment in the bill of lading by 90 days, due to the unavailability of quarters. This was done by the post transportation officer, and the plaintiff’s agent was furnished a copy of the authorization. The shipment remained in SIT at Des Plaines for a total of 117 days. The plaintiff was paid the applicable storage charges under Item 140 of MBT No. 1, and there is no dispute in the present litigation with respect to such charges.

In the present case, the plaintiff claims, mter alia, that the action of the post transportation officer at Ft. Sheridan in extending the SIT period authorized in the bill of lading constituted a diversion of the shipment, and, accordingly, that the plaintiff is entitled to collect, in connection with such diversion, the $5 diversion charge authorized by Item 150.

In order to determine whether the extension of the SIT period was a diversion, we must look both to the provisions of Item 150 of MBT No. 1 and the Defense Supply Agency Begulations (finding 29) which were in effect at the time and define diversion or reconsignment. Since there was no change in the original delivery instructions, the extension is not compensable as a diversion under Item 150 alone. However, plaintiff contends that it is entitled to diversion charges pursuant to the provisions of Section XXA of the regulations, which define diversion to include, among other actions, the following:

5. Any other instructions given to the carrier that are necessary to effect delivery and require a change in billing and/or an additional movement of the vehicle.

We reject plaintiff’s contention and hold that there was no diversion within the meaning of the regulations with respect to the additional storage time for shipment No. 18. The instructions were not necessary to effect delivery of the shipment and there was no additional movement of the vehicle used by plaintiff for transporting the shipment.

The petition should, therefore, 'be dismissed as to plaintiff’s claim for a $5 diversion charge in connection with the extension of the SIT period authorized in the bill of lading covering shipment No. 18.

Movement of Shipments i/nto and out of SIT

Another issue presented in this case is whether, when a shipment was placed in storage-in-transit at the destination point while awaiting delivery instructions and was thereafter delivered to the new residence of the property owner pursuant to delivery instructions, the carrier is entitled under Item 145 of MBT No. 1 to compensation both for performing the movement into SIT and for performing the movement out of SIT.

This issue is illustrated by shipment No. 27, which originated in Germany and was consigned to the property owner at Lawton, Oklahoma. The bill of lading authorized storage-in-transit at destination for not to exceed 90 days. When the shipment arrived at Lawton, the transportation officer at Fort Sill directed the plaintiff’s agent to place the shipment in SIT, and this was accomplished in the agent’s warehouse at Lawton. The transportation officer subsequently ordered the shipment removed from SIT and delivered to the property owner at a specified street address in Lawton.

On shipment No. 27, the plaintiff billed the defendant, and was paid, the sum of $24.86 under Item 145 of MBT No. 1 for the movement into SIT, and also for $24.86 under Item 145 for the movement out of SIT. The General Accounting Office issued a notice of overcharge which requested the refund of the compensation that had been paid for the movement into SIT. The plaintiff complied with that request and refunded $24.86 to the defendant. (The charge of $24.86 for the movement of the shipment out of SIT was not involved in the notice of overcharge, and the defendant concedes that it was properly collected.)

In the present action, the plaintiff seeks, inter alia, to collect a charge under Item 145 for tlie movement of shipment 2T into SIT.

Item 145 of MBT No. 1 prescribed “Pick-Up or Delivery Transportation Bates To Apply on Storage-in-Transit Shipments.” It was in Section II of MBT No. 1, which was entitled “Additional Services,” and stated that the rates and charges prescribed in the section for “additional services” were “in addition to” the single-factor transportation rates filed by carriers.

This same issue has previously been before the Court of Claims in the case of Routed Thru-Pac, Inc. v. United States, 185 Ct. Cl. 428, 401 F. 2d 789 (1968). In that case, the court said (185 Ct. Cl. at p. 435, 401 F. 2d at p. 793) that “the single-factor rate necessarily includes one £pick-up’ and one ‘delivery’ and all the land and water transportation in between;” and that “[i]tem 145 provides additional compensation only for ‘additional’ or ‘accessorial’ services rendered above and beyond what is required by the single-factor rate.” The court subsequently said (185 Ct. Cl. at pp. 435-436, 401 F. 2d at p. 793):

* * * 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. * * *

The court’s decision in Routed Thru-Pac clearly requires the rejection of the plaintiff’s claim for compensation in connection with the movement of shipment 27 into SIT.

Therefore, the petition should be dismissed as to the plaintiff’s claim under Item'145 of MBT No. 1 in connection with the movement of shipment No. 27 into SIT.

The “Diversion Without SIT” Claims

Another issue presented in this case is whether, when a shipment arrived at the destination point and the carrier was directed to deliver the shipment, without SIT, to the property owner at a residence address not shown on the bill of lading, there was a diversion of the shipment, within the meaning of Item 150 of MBT No. 1.

This issue is illustrated by shipment No. 83, which originated in Guam and was consigned to the property owner at “Beeville, Texas (NAAS) [Naval Air Auxiliary Station].” Storage-in-transit for not to exceed 90 days was authorized. The plaintiff was instructed to notify the transportation officer at the Naval Air Station in Corpus Ohristi, Texas, upon the arrival of the shipment. When shipment 33 arrived at Beeville, the plaintiff’s agent notified the transportation officer at the Naval Air Station in Corpus Ohristi, and was instructed to deliver the shipment to the property owner at 173 Ann Burke Apartments in Beeville.

The plaintiff was paid on October 25, 1963 for the transportation of shipment 33 on the basis of the single-factor rate from the origin point in Guam to the State of Texas. In the first amendment to the petition, which was filed on February 16, 1967, the plaintiff seeks to collect under Item 150 of MBT No. 1 a $5 diversion charge and a diversion mileage charge in the amount of $6.56, on the ground that there allegedly was a diversion of the shipment from the Naval Air Auxiliary Station in Beeville to 173 Ann Burke Apartments in Beeville.

Item 150, like Item 145, is in Section II of MBT No. 1. As stated in the immediately preceding part of this opinion, Section II was entitled “Additional Services” and stated that the rates and charges prescribed in the section for “additional services” were “in addition to” the single-factor rates filed by carriers. Item 150 prescribed rates and charges for additional services which carriers were required to perform as a result of diversions ordered by transportation officers; and the term “diversion” was defined as meaning “any change from original delivery instructions.”

Therefore, in connection with the claim now under consideration, the problem is whether, as a result of a “change from original delivery instructions” ordered by a transportation officer, the plaintiff was required to perform an additional service which it was not obligated to perform as part of the consideration for the line-haul transportation charge previously collected from the defendant.

At the time when shipment 33 was tendered to and accepted by the plaintiff in Guam, it was known that the property owner was being transferred to the Naval Air Auxiliary Station in Beeville, Texas, but there was uncertainty concerning the exact location of the property owner’s destination residence, where the plaintiff would ultimately make delivery and unpack the household goods. Consequently, the plaintiff was instructed to notify the transportation officer at the Naval Air Station in Corpus Christi, Texas, upon the arrival of the shipment at Beeville, the clear implication being that the transportation officer would either give the plaintiff specific delivery instructions at that time or else direct the plaintiff to place the shipment in SIT pending the issuance and receipt of delivery instructions.

Therefore, when the plaintiff’s agent, upon notifying the transportation officer relative to the arrival of the shipment at Beeville and receiving delivery instructions, delivered the shipment to the property owner’s residence at 173 Ann Burke Apartments in Beeville, the plaintiff’s agent was merely performing a service which the plaintiff had contracted to perform on the basis of its single-factor transportation rate, and was not performing an “additional” service. The single-factor transportation rate covered one delivery, and this was accomplished when shipment 33 was delivered to the property owner’s new residence in Beeville, without SIT.

Furthermore, there was not involved in connection with shipment 33 “any change from original delivery instructions.” As previously indicated, the bill of lading itself did not give instructions concerning the delivery of the shipment to the serviceman’s destination residence, since the exact location of the destination residence was unknown at the time when the bill of lading was issued. Instead, the 'bill of lading notified the plaintiff that it would receive specific delivery instructions from the transportation officer at the Naval Air Station in Corpus Christi when the latter was informed regarding the arrival of the shipment at Beeville. Thus, the instructions from the transportation officer to the effect that the shipment was to be delivered to the property owner at 173 Ann Burke Apartments in Beeville were the “original delivery instructions” contemplated by the parties.

The conclusion that there was no diversion of shipment 33, within the meaning of Item 150 of MBT No. 1, when the shipment arrived at the destination point and the carrier was directed to deliver the shipment, without SIT, to the property owner at his new residence address, makes it unnecessary to consider the question of whether the 3-year limitation period prescribed in 49 U.S.C. § 1006a or the 6-year limitation period prescribed in 28 U.S.C. § 2501 is applicable to this claim.

The petition should be dismissed as to the plaintiff’s claim under Item 150 of MBT No. 1 for a $5 diversion charge and a $6.56 diversion mileage charge in connection with the delivery of shipment No. 33 to the property owner’s new residence, without SIT.

Shipments Packed at Non-Temporary Storage Origins

Another issue presented in this case is whether, when a shipment was in non-temporary storage at the origin point and the evidence indicates that the carrier packed some of the household goods prior to transporting them, the carrier is entitled to be compensated for the transportation on the basis of the full single-factor rate from origin to destination without showing either that no preliminary packing of such household goods was performed prior to storage or, in the alternative, that the repacking of such household goods was directed by a transportation officer.

This issue is illustrated by shipment No. 1, which was picked up by the plaintiff at a warehouse in Columbus, Georgia, where it was in non-temporary storage. The shipment was to be transported by the plaintiff to Bamberg, Germany. The documentary evidence in the record indicates that 2 barrels and 13 cartons in the shipment were packed by the plaintiff prior to the transportation of the shipment from Georgia to Germany.

The plaintiff billed the defendant for, and was paid, $452.16 to cover the line-hanl move from the origin point in Georgia to Germany, based on the single-factor rate of $81.40 per hundredweight. The defendant subsequently issued a notice of overcharge demanding a refund of $21.60 from the plaintiff, on the ground that the single-factor rate should be reduced by $1.50 per hundredweight in accordance with Item 25A of MBT No. 1. The plaintiff refunded the $21.60 under protest, and seeks to recover that amount in the present action.

As previously indicated in this opinion, one of the services which the plaintiff was generally obligated to perform under its single-factor transportation rate was the packing of the serviceman’s household goods at his origin residence. In this connection, however, Item 25A of MBT No. 1 provided as follows:

Any shipment originated at a storage warehouse, and for which preliminary packing was performed prior to storage, will not be repacked unless directed by the transportation officer to insure safe transportation to destination. When packaging is not required, the applicable single factor rate named will be reduced by $1.50 per net cwt.

The problem here is to determine the proper rate for the line-haul transportation of shipment 1 from the origin point in Georgia to Germany. The plaintiff’s claim is based on the contention that the proper rate is the full single-factor rate of $31.40 per hundredweight, without any reduction. The defendant, on the other hand, contends that the proper rate is the single-factor rate less $1.50 per hundredweight under Item 25A of MBT No. 1.

With respect to this claim — as with respect to all other claims asserted in the petition — the plaintiff has the burden of proof.

Since the evidence showed that shipment 1 originated at a storage warehouse, the plaintiff had the burden of establishing that Item 25A of MBT No. 1 was inapplicable; and in order to do this, the plaintiff was required to prove either that no preliminary packing prior to storage was performed on the household goods which the plaintiff packed in 2 barrels and 13 cartons, or, in the alternative, that the plaintiff was directed by a transportation officer to repack such goods prior to transporting them to Germany. No evidence on either of these points was presented by the plaintiff. The documentary evidence which merely showed that the plaintiff packed 2 barrels and 13 cartons of shipment 1 prior to transporting the shipment from Georgia to Germany was not sufficient to establish the inapplicability of Item 25A of MBT No. 1.

Therefore, the plaintiff has not sustained its burden of proof; and its claim for the recovery of $21.60 in connection with shipment 1 must be denied.

The petition should be dismissed as to the plaintiff’s claim based on the full single-factor transportation rate, without reduction, in connection with the movement of shipment No. 1 from the origin point in Georgia to the destination point in Germany.

Loss of Containers

Another issue presented in the present case is whether a carrier is entitled to compensation on a quantum valebat basis for the loss of its containers when a shipment was being transported in carrier-owned containers and the defendant ordered that such shipment be delivered in the carrier-owned containers for non-temporary storage at a warehouse operated by a company other than the carrier or its agent, or the defendant ordered that the shipment be delivered to another carrier for further transportation in the first carrier’s containers, with the result that the first carrier lost possession of 'its containers and never recovered them.

This issue is illustrated by shipment No. 7, which originated in Okinawa and was consigned to the transportation officer at the Oakland Army Terminal in California. At the origin residence of the property owner in Okinawa, the household goods were packed in three containers belonging to the plaintiff: one 220-cubic-foot container, one 153-cubic-foot container, and one 21-cubic-foot container. The bill of lading directed that the shipment be held “for disposition.” Upon the arrival of the shipment at the port of debarkation, the defendant directed that it be placed in storage-in-transit, and this was accomplished at the warehouse of the plaintiff’s agent in Oakland, California. After the shipment had been in SIT for 31 days, the defendant instructed that the shipment, which was still in the plaintiff’s containers, be delivered to a warehouse in San Francisco for non-temporary storage, the San Francisco warehouse being operated by a company with which the plaintiff had no agency or other relationship. When this occurred, the plaintiff lost possession of its containers. The plaintiff did not thereafter recover the containers.

The plaintiff billed the defendant for the alleged value of the containers used in connection with shipment 7, i.e., $25 for the small container and $50 each for the two larger containers, or a total of $125. This charge was not paid by the defendant; and the plaintiff seeks in the present action to recover the sum of $125 for the loss of its containers.

When household goods are tendered to a carrier for transportation in accordance with the door-to-door container service under MBT No. 1, the household goods are packed by the carrier at the origin residence of the property owner and are loaded into specially designed containers belonging to the carrier. At the destination residence, the household goods are unpacked from the containers, and the containers, together with the necessary packing materials, are retained by the carrier. At the time involved in the present litigation, there was no provision in the defendant’s regulations which permitted a carrier to remove the household goods from the containers prior to delivery to the destination residence, unless such removal was expressly authorized by a military transportation officer.

There was an implied contractual obligation on the part of the defendant to permit a carrier to retain its containers ■upon the completion of the transportation service which the carrier was obliged to perform under the contract between the parties. The defendant failed to discharge its implied contractual obligation in this respect when the defendant directed the carrier to deliver a shipment, while still in the carrier’s containers, for non-temporary storage in a warehouse operated by a company with which the carrier had no agency or other relationship.

Non-temporaiy storage is permanent storage, and is to be contrasted with storage-in-transit, which is temporary storage performed during the course of the transportation of a shipment. Non-temporary storage was not performed under the terms of MBT No. 1, but under a separate contract between the defendant and the operator of the warehouse.

The defense interposed by the defendant in connection with the claim for the loss of the containers used for shipment 7, and other similar claims, is that the plaintiff at the trial did not introduce sufficient evidence regarding the value of the lost containers.

The evidence in the record shows that the acquisition cost of the type of container used by the plaintiff ranged between $80 and $40. With respect to the containers that were actually used in connection with shipment 7 and the other shipments that raise the issue now under consideration, there is no evidence in the record concerning the age of the containers, the extent to which they had been used prior to the particular shipments that are involved in the present litigation, or their condition at the time when the plaintiff lost possession of them due to the directives issued by the defendant.

On the other hand, it is certainly proper to infer from the evidence in the record that the plaintiff’s containers were capable of being used for the transportation of household goods and, accordingly, that they had some value at the time of their loss. This is sufficient for present purposes, since the initial trial of the case was held on the issue of liability only, with the amount of the plaintiff’s recovery (if any) being reserved for subsequent proceedings under Rule 131(c).

Judgment on the question of liability should be entered for the plaintiff on its claim for the loss of the containers used in connection with shipment No. 7.

Additional Transportation Performed on Mode 5 Shipments

Another issue presented in this case is whether, when an MSTS vessel carried a door-to-door Container-Government, or Mode 5, shipment before the fall of 1965 to a port of debarkation other than the MSTS port that was nearest to the destination point of the shipment, the carrier is entitled to compensation on a quantum meruit basis for the additional land transportation which it was required to perform as a result of the defendant’s failure to use the MSTS port nearest to the destination point.

This issue is illustrated by shipment No. 8, a Mode 5 shipment which originated in the Canal Zone and was consigned to the property owner in Benton, Pennsylvania. The shipment moved to the continental United States from the Canal Zone aboard an MSTS vessel which was bound for the Port of New York. The shipment was picked up by the plaintiff at a pier in Newark and was transported to Benton, a distance of 176 miles.

Philadelphia is an MSTS port of call, and it is located 131 miles from Benton.

The plaintiff billed the defendant, and was paid, $94.50 for the transportation of shipment 8, based on the plaintiff’s single-factor rate of $18.90 per hundredweight that was applicable to Mode 5 shipments moving from the Canal Zone to points in Pennsylvania. This payment is not in dispute.

In the present action, the plaintiff seeks to recover $6.75 for the additional land distance of 45 miles over which the plaintiff was required to transport shipment 8 because the defendant did not use Philadelphia as the port of debarkation. This amount is computed by utilizing as the measure of compensation the mileage rate prescribed in Item 150 of MBTNo. 1.

As of the time when shipment 8 moved from the Canal Zone to Benton, the evidence in the record does not reveal any contractual provision or any understanding pursuant to which the defendant, in connection with a Mode 5 shipment, agreed to utilize as the port of debarkation the MSTS port nearest to the destination point.

The evidence in the record indicates that the plaintiff held itself out to the defendant as ready, willing, and able to accept Mode 5 shipments moving from the Canal Zone to points in the continental United States through the MSTS ports of New York, Norfolk, and New Orleans. As shipment 8 moved through the Port of New York, the plaintiff did no more than what it had contracted to do when it transported the shipment from the port of debarkation to the destination point given in the bill of lading. Hence, there is no proper basis for an additional recovery on the theory of quantum meruit.

The petition should be dismissed as to the plaintiff’s claim based on a charge for additional land transportation in connection with shipment No. 8.

Additional Transportation Performed as Result of Maritime Strike

Another issue presented in this case is whether a carrier is entitled to extra compensation on a quantum meruit basis when the defendant, because of the existence of a maritime strike at the port of embarkation closest to the origin of the shipment, requested the carrier to transport the shipment to a more distant port for loading aboard a vessel there.

This issue is illustrated by shipment No. 34, which originated in Quitman, Georgia, and was consigned to the property owner in Bamberg, Germany. The nearest port of embarkation for shipments originating in Quitman, Georgia, and bound for Germany is Jacksonville, Florida, which is 136 miles from Quitman. The Port of J acksonville was strikebound at the time when shipment 34 was tendered to and accepted by the plaintiff. The plaintiff at first held the shipment at the origin point while awaiting the resolution of the maritime strike at J acksonville. However, the transportation officer at the origin point requested the plaintiff to expedite the shipment and to transport it to the Army Terminal at New Orleans, Louisiana, so that the Army Terminal could arrange for MSTS to perform the ocean transportation. New Orleans is 481 miles from Quitman, Georgia. The plaintiff complied with, the transportation officer’s request and sent shipment 34 to the plaintiff’s agent in New Orleans, thereby providing land transportation over a distance that was 345 miles greater than the distance between the origin point and the Port of Jacksonville. At New Orleans, shipment 34 was ultimately loaded aboard a commercial vessel, rather than an MSTS vessel, for the ocean transportation to Germany.

The plaintiff was paid $224.64 under the plaintiff’s single-factor rate for the line-haul transportation from Quitman, Georgia, to Germany. In the present action, the plaintiff seeks, inter alia, additional compensation on a quantum meruit basis in the amount of $82 for the 345 additional miles of land transportation necessitated by the defendant’s request that New Orleans be used as the port of embarkation. The plaintiff computes the charge of $82 by utilizing, as the measure of compensation, the mileage rate prescribed in Item 150 of MBT No. 1.

Under MBT No. 1, a carrier transporting a shipment in the door-to-door container mode was entitled to select the entire routing for the shipment, including the port of embarkation, and this was normally done on the basis which would achieve the lowest overall cost in handling the shipment. The plaintiff’s prerogative in this respect was violated by the defendant as to shipment 34 when the defendant requested the plaintiff to expedite the shipment by utilizing the distant Port of New Orleans as the port of embarkation.

The performance by the plaintiff at the defendant’s request of this additional land transportation created an implied obligation on the part of the defendant to reimburse the plaintiff for the reasonable value of the extra service. The mileage rate prescribed in Item 150 of MBT No. 1 would seem to be, as asserted by the plaintiff, a reasonable standard to use in evaluating the extra service.

The defendant refers to Army Regulations No. 55-33, which prescribed rather elaborate procedures for the handling of through-bill-of-lading shipments of household goods during periods of maritime strikes, and to a communication which the plaintiff addressed to all military transportation officers on January 18,1965, stating that the plaintiff “hereby agrees to handle all shipments tendered that normally flow through an East or Gulf Coast Port of the U.S. in accordance with the recently published AR 55-33 Regulations.” However, the defendant in its brief does not call attention to any specific provision of AR. 55-33 which purported to require that carriers perform extra services, without additional compensation, in complying with the emergency procedures designed to cope with conditions resulting from maritime strikes.

The defendant asserts, as an affirmative defense, that since the plaintiff billed the defendant, and was paid, a line-haul charge for the transportation of shipment 34 from origin to destination based on the plaintiff’s single-factor rate, the plaintiff is estopped from asserting in the present litigation a claim for a further charge based on the additional land transportation involved in complying with the defendant’s request that New Orleans be used as the port of embarkation. The evidence in the record shows that the submission by the plaintiff of supplemental billings in connection with shipments of household goods moving under MBT No. 1 was a common practice; that the defendant paid such supplemental billings when they were regarded as meritorious; and that the defendant never objected to the practice, although the defendant did request the plaintiff, when the volume of supplemental billings under MBT No. 1 became so great that the General Accounting Office could not cope with the paperwork, to “cease and desist” until the disputed issues concerning the interpretation of MBT No. 1 could be resolved. It does not appear that the doctrine of estoppel should prevent a recovery by the plaintiff on the claim now under consideration. Except for extra work, no detriment to the defendant arising from the plaintiff’s failure to include this item in its original billing relative to shipment 34 has been shown.

Judgment should be entered for the plaintiff on the issue of liability with respect to the claim for extra compensation based upon the additional land transportation involved in the movement of shipment No. 34 from the origin point to a more distant port of embarkation pursuant to the defendant’s request.

The same principle would permit recovery by the plaintiff of extra compensation on a quantum meruit basis in connection with the performance of additional land transportation from the port of debarkation to the destination point in a situation where the plaintiff’s normal routing procedure was frustrated by the defendant, with the result that the port of debarkation actually used was more distant from the destination point than the port ordinarily used in connection with shipments moving from the origin point to the destination point.

Transfer of Shipment Between Piers

Another issue presented in this case is whether a shipment was diverted, within the meaning of Item 150 of MBT No. 1, when the defendant directed that it be transferred from one pier in the port of embarkation to another pier in the same port for loading aboard a vessel.

This issue is illustrated by shipment No. 36, which was tendered to the plaintiff in Denver, Colorado, and was consigned to the property owner in Verdun, France. The plaintiff transported the shipment, consisting of two containers, to New Orleans, Louisiana, where the plaintiff was able to place one container on board a commercial vessel of the Waterman Steamship Corporation for the ocean transportation to France. Due to a maritime strike, the defendant directed the plaintiff to move the second container from the commercial pier of the Waterman Steamship Corporation in New Orleans to the MSTS pier in New Orleans, where the second container was placed on board an MSTS vessel for the ocean transportation to France.

The plaintiff billed the defendant, and was paid, for the line-haul transportation of shipment No. 36 from Denver, Colorado, to France. In the present litigation, the plaintiff seeks additional compensation for the transportation performed in moving the second container from the commercial pier in New Orleans to the MSTS pier at defendant’s direction. Plaintiff claims $69.92, the minimum mileage diversion charge under Item 150 of MBT No. 1, plus the flat $5 diversion charge also provided for in Item 150.

On shipment No. 36, plaintiff also seeks compensation in the amount of $205.43 for the 105 miles of additional land transportation which plaintiff performed in moving the second container from the MSTS port of discharge in St. Nazaire to Verdun. Plaintiff’s right to recover for such additional land transportation is covered by the preceding section of this opinion under the heading, “Additional Transportation Performed as Result of Maritime Strike.”

Plaintiff’s argument with respect to the transfer between piers is based on the provisions of Item 150 of MBT No. 1 and Paragraph XX of defendant’s Defense Supply Agency Begulation (DSAB) 4500.1.

Item 150 defines diversion as “any change from original delivery instructions, including consignment or reconsignment of a destination point after commencement of transportation service * * The regulations (finding 29), which were in effect at all times relevant to this case, supplemented the definition of diversion, and Paragraph XXA thereof states that the following actions constitute a diversion:

5. Any other instructions given to the carrier that are necessary to effect delivery and require a change in billing and/or an additional movement of the vehicle.

It seems clear to us that defendant’s 'instructions to plaintiff to move one of the containers from the commercial pier to the MSTS pier in New Orleans were instructions that were necessary in order to effect delivery of the container as a result of the Maritime strike and that these instructions also required an additional movement of plaintiff’s vehicle between the two piers. Therefore, under the terms of the regulation, the defendant’s instructions and the additional services performed ‘by plaintiff constituted a diversion for which plaintiff is entitled to compensation under the provisions of Item 150 of MBT No. 1. Judgment should be entered for plaintiff to that effect on the issue of defendant’s liability on this claim.

Warehouse Handling Performed in a Government Warehouse

Another issue presented in this case is whether a carrier is entitled to compensation, either under Item 140 of MBT No. 1 or on a quantum meruit basis, in a situation where the defendant ordered a shipment placed in storage-in-transit at a Government-owned warehouse and the carrier performed the necessary warehouse handling involved in the placement and subsequent removal of the shipment.

This issue is illustrated by shipment No. 38, which was picked up by the plaintiff at Ft. Leavenworth, Kansas, and was consigned to the property owner at Ft. Kobhe in the Canal Zone. Upon the arrival of the shipment in the Canal Zone, it was placed in storage-in-transit at 'a Government-owned storage facility pursuant to a directive from the defendant. After a 275-day period of storage, the shipment was delivered to the property owner’s destination residence at Ft. Kobbe. The necessary handling of the shipment into and out of the Government-owned warehouse was performed by the plaintiff’s agent.

The plaintiff billed the defendant, and was paid, $610.50 for the line-haul transportation of shipment 38 from Ft. Leavenworth, Kansas, to the Canal Zone, and $16.50 for the delivery of the shipment to the storage facility. There is no dispute between the parties regarding these charges.

In the present action, the plaintiff is seeking, inter alia, to recover a warehouse handling charge in connection with shipment 38.

Warehouse handling is the service of moving a shipment from the platform at the entrance of a storage warehouse to the position within the warehouse where the shipment will remain during storage-in-transit, the necessary record keeping, and the reverse movement out to the platform when the shipment is removed from storage-in-transit. Warehouse handling is always performed when a shipment is placed in storage-in-transit.

Item 140 of MBT No. 1 was entitled “Storage-in-Transit and Warehouse Handling Charges.” It prescribed in two parallel columns tbe rates that were to be used in. computing charges for the “storage” and for the “warehouse handling” of shipments which were placed in storage-in-transit.

The defendant argues that since Item 140 prescribed rates both for the storage and for the warehouse handling of shipments placed in storage-in-transit, it was intended to apply only in situations where shipments were placed in SIT at commercial facilities, since no storage charge would ever be involved with respect to a shipment placed in SIT at a Government-owned facility. From this premise, the defendant proceeds to the conclusion that a carrier was required to perform without charge the necessary warehouse handling in connection with any shipment placed in SIT at a Government-owned warehouse pursuant to the defendant’s directive.

The result contended for by the defendant does not commend itself for fairness. The same sort of warehouse handling by the carrier (or its agent) was required in connection with a shipment moving into and out of SIT at a Government-owned warehouse as was required in connection with a shipment moving into and out of SIT at a commercial warehouse. From the standpoint of fundamental fairness, it is difficult to understand why a carrier should be entitled to a warehouse handling charge under Item 140 for the performance of this necessary service in the second situation but should be denied such a charge in the first situation.

Furthermore, from the standpoint of the logical interpretation of Item 140, it does not follow that merely because a carrier could not collect a storage charge under Item 140 when a shipment was placed in SIT at a Government-owned facility (the carrier having furnished no storage service), the carrier must also be foreclosed from collecting the warehouse handling charge provided for in Item 140, even though the earner performed the warehouse handling service contemplated by Item 140.

It appears that Item 140 of MBT No. 1 should be construed as covering warehouse handling by a carrier at a Government-owned warehouse, as well as warehouse handling at a commercial warehouse.

Therefore, judgment should be entered for the plaintiff on the issue of liability with respect to the plaintiff’s claim for a warehouse handling charge in connection with shipment No. 38.

Transportation Performed After Lengthy SIT in Government Warehouse

Another issue presented in the present case is whether the extension of the SIT period in a Government-owned warehouse at destination beyond 180 days terminated the original transportation contract between the carrier and the defendant, so that the subsequent transportation of the shipment by the carrier from the SIT warehouse to the property owner’s destination residence was under a new implied contract.

This issue is illustrated by shipment No. 38, which was discussed in the immediately preceding part of this opinion. It has been previously mentioned that upon the arrival of this shipment in the Canal Zone, the defendant directed that it be placed in storage-in-transit at a Government-owned warehouse. The SIT continued for 275 days. At the end of the SIT period, the defendant directed that the shipment be delivered to the property owner at his destination residence within the military installation mentioned in the bill of lading as the consignment point; and this was done by the plaintiff’s agent.

The plaintiff has previously been paid a line-haul transportation charge on the basis of its single-factor rate, and has also been paid a charge for the delivery of the shipment to the Government warehouse for SIT.

In the present action, the plaintiff claims, inter alia, that it is entitled to compensation, on the basis of its commercial transportation rate applicable between overseas points, for the movement of shipment 38 from the SIT warehouse to the property owner at his destination address. It seems to be the plaintiff’s theory that the retention of shipment 38 in the SIT warehouse for 275 days automatically terminated the plaintiff’s obligation under the original transportation contract.

The plaintiff relies on Item 45 of MBT No. 1, which was entitled “Storage-in-Transit Period” and which provided that “Storage-in-transit service provided in this tender will be for a period of 180 days.” The plaintiff says in its brief that when shipment 38 remained in the SIT warehouse longer than the 180-day period provided for in Item 45, “the original transportation contract expired on termination of the 180-day storage period and the subsequent transportation from the warehouse and all services performed thereafter at defendant’s request was [sic] not performed under MBT No. 1, * * * but were performed at plaintiff’s commercial rates otherwise applicable.”

It is readily apparent from the language of Item 45 of MBT No. 1 that it related to — and only to — SIT service furnished by a carrier pursuant to the tender. In connection with shipment 38, the SIT service was not furnished by the plaintiff (or its agent), but by the defendant. Therefore, the 180-day limitation prescribed in Item 45 for carrier-furnished SIT was not applicable to the transaction now under consideration.

The matter of the delivery of SIT shipments from Government-owned facilities outside the continental United States was governed by Item 135 of MBT No. 1. That item provided (among other things) that when a shipment was placed in SIT at destination in a Government-owned facility, the “carrier will perform delivery and unpacking service within a 50 mile radius * * * of the point of storage without additional charge.” Item 135 did not place any limit on the length of time that a shipment might be held in SIT at a Government-owned facility.

Therefore, the retention of shipment 38 in the Government-owned warehouse at destination for a period longer than 180 days did not, as contended by the plaintiff, terminate the original transportation contract between the plaintiff and the defendant. Accordingly, the delivery of the shipment from the Government-owned warehouse to the property owner’s destination residence was governed by Item 135 of MBT No. 1.

The petition should be dismissed as to the plaintiff’s claim, based upon its commercial transportation rate applicable between overseas points, for tbe movement of shipment 38 from the Government-owned warehouse to the property owner’s destination residence.

¡Shipments Diverted Out of SIT

One of the issues also presented in this case is whether, when diversion instructions are received while a shipment is in storage-in-transit, the charges for delivery to destination from the storage point will be as provided in Item 145 of MBT No. 1 or as specified in Item 150.

The shipments (involved in this issue are the following :

Shipment No. 6 dated December 6, 1963, diverted from New York to Columbus, Georgia;

Shipment No. 12 dated November 20,1963, diverted from New York to Picher, Oklahoma;

Shipment No. 13 dated February 24, 1964, diverted from Oakland, California, to Montebello, California;

Shipment No. 15 dated June 12, 1964, diverted from New York to Tinker Air Force Base, Oklahoma;

Shipment No. 18 dated October 3, 1963, diverted from Fort Biley, Kansas, to Fort Sheridan, Illinois;

Shipment No. 31 dated June 21,1963, diverted from Oakland, California, to Blytheville, Arkansas.

Shipment No. 6 is typical of the shipments which present this question. It originated in Germany and was consigned to “SFC, Charles E. McCormick * * * Port Trans. Officer, Army Terminal Command, Brooklyn, New York * * After arrival of the shipment in Brooklyn, the defendant ordered the goods placed in SIT. Plaintiff accordingly placed the shipment in its agent’s warehouse in Kearny, New Jersey. Subsequently, defendant directed plaintiff to deliver the shipment to the property owner’s new residence at 4413 Sims Street, Columbus, Georgia, instead of to the original destination in the Brooklyn area.

Plaintiff billed and was paid $632.40 for the line-haul transportation charge from Germany to New York, plus diversion charges under Item 150 of $266.24 as diversion mileage from New York to Columibus, plus the $5 flat diversion fee. For the same shipment, plaintiff billed and was paid $52.70 under Item 145 for the movement into SIT at Kearny. Plaintiff also submitted a bill for but was not paid $537.54 under Item 145 for tbe movement from SIT to Columbus, Georgia.

Plaintiff’s position is that it is entitled to compensation for the movement from Brooklyn to the SIT site, either under Item 145, or under Item 150 as a diversion. Plaintiff also maintains that since Item 150 does not cover shipments diverted to a new destination after storage-in-transit, all such movements are compensable under Item 145.

Defendant’s position is that neither the movement into SIT, nor the delivery out of SIT, once there is diversion, can be compensable under Item 145. Defendant asserts that the payment of $52.70 for the movement into SIT was in error; that the movement out of SIT was a diversion, was paid for as such under Item 150, and that the total diversion charges should be no greater than the $271.24 already paid.

Plaintiff’s claim that it should be compensated for the movement into SIT under Item 150 has already been disposed of in this opinion under the heading, “The Claims Based on 'Diversion’ to and from SIT." The alternative claim for payment of the movement into SIT, pursuant to Item 145, is governed by our decision in Routed Thru-Pac, Inc. v. United States, supra, and is also dealt with in this opinion under the heading, “Movements of Shipments into and out of SIT." Therefore, the movement of goods from destination in Brooklyn to SIT at Kearny, New Jersey, was not a com-pensable movement under either Item 145 or Item 150 of MBT No. 1.

A more difficult question is whether the delivery to a new destination after storage-in-transit should be paid for pursuant to Item 145 rather than Item 150. The difficulty arises from the lack of clarity in MBT No. 1, at least until it was amended on December 7, 1964, after the dates of the shipments in issue. As shown in finding 27, Item 150 of MBT No. 1 broadly defines “Diversion” and then provides the rates for several categories of diversions which are described in specific and detailed language, but none of the categories expressly covers shipments diverted to a new destination point after storage-in-transit.

On the other hand, Item 145 of MBT No. 1, which is set ont in finding 26, is entitled “Pick-Up or Delivery Tran-portation Rates To Apply on Storage-in-Transit Shipments,” and therefore purports to cover any delivery after storage-in-transit.

There is no provision in MBT No. 1 which states which of the two items is to prevail when a shipment is diverted after it has been stored in transit. However, a careful examination of both items leads us to the conclusion that Item 145 is applicable to the shipments in issue. We say this because the diverted shipments do not fit into any of the categories that are detailed in Item 150, whereas Item 145 covers any delivery made from a storage-in-transit shipment. In reaching this conclusion, we rely on the rule that in a case where there is a doubt as to the applicability of two tariffs to the same shipment, the more specific tariff will apply. United States v. Gulf Ref. Co., 268 U.S. 542, 546 (1925); Boone v. United States, 109 F. 2d 560, 562 (6th Cir. 1940).

Our holding on the issue is, we think, also supported by Supplement No. 8 to MBT No. 1, which became effective December 7, 1964, and amended Item 150 by adding the following note:

NOTE: When diversion or reconsignment instructions are received while shipment is in storage-in-transit, charges for delivery from storage-in-transit will be those provided in Item 145 herein.

In addition, Supplement 8 added the following new provision to Item 145:

When points are not within the same municipality or not within a distance of 50 miles or less (EXCEPT for ALASKA see Schedule E), the rates named in this item will not apply. Apply the rates as provided in SCHEDULE A of Item 150 of this tender.

Effective as of June 1, 1965, Supplement 9 to MBT No. 1 again amended Item 150 by deleting the note quoted above, but there was left in Item 145 the provision that the rates set out in Item 150 were to be applied to movements in excess of 50 miles.

Since all shipments involved in this issue were made before the effective date of Supplement 8, we are interested in that and subsequent supplements only to the extent that they reveal which item was intended to be controlling in cases of diversions from SIT. For that purpose, we believe that these supplements indicate that, at least previous to June 1, 1965, Item 145 controlled in such situations.

Defendant urges that plaintiff’s position respecting the applicability of Item 145 is a newly espoused theory, which was not advanced until after this court’s decision in Routed Thru-Pac, Inc. v. United States, supra. Defendant also 'argues that there was always a clear understanding between the parties that compensation for a diversion made while goods were stored in transit was to be compensated under Item 150 and not under Item 145. We do not find that the evidence supports defendant’s position. If there was such a “clear understanding,” we do not think it was reflected in plaintiff’s billing-practices, including the supplemental bills submitted by plaintiff. Moreover, bills for these shipments were submitted well in advance of our decision in Routed Thru-Pac, Inc. v. United States, supra.

Plaintiff has already been compensated for the shipments discussed under this heading pursuant to Item 150. Therefore, the amounts previously received should be deducted from the compensation that will be due plaintiff under Item 145 in accordance with this decision.

Defendant's Counterclaim for Afflianoe Servicing Charges

The defendant is asserting in the present action a counterclaim for the recovery of amounts (ranging between $10 and $20) which the plaintiff collected in the form of appliance servicing charges with respect to shipments Nos. 6, 7, 11,18, 19,22,25,27, and 36. These appliance servicing charges were collected by the plaintiff from the defendant on the basis of claims that it had performed such services in accordance with Item 115 of MBT No. 1. That item was entitled “Household Appliances Or Other Articles Bequiring Special Servicing for Safe Transportation.”

In support of its counterclaim, the defendant shows that the claims upon the basis of which the defendant paid the particular charges were not adequately supported at the time by tbe documentary proof required under the defendant’s then-current regulations. However, this is not sufficient to justify a judgment for the defendant on its counterclaim.

In the present posture of the case with regard to the appliance servicing charges, the defendant is not resisting the collection of such charges on the ground that they are inadequately supported by documentation. Rather, the defendant is seeking to recover sums of money which it has previously paid to the plaintiff on the basis of the documentation presented at the time by the plaintiff. Therefore, the defendant has the burden of proving that such sums were not due and owing to the plaintiff when they were paid. In order to sustain this burden, the defendant must show that the plaintiff did not perform the appliance servicing for which it billed the defendant and collected the several sums that are now in dispute. This is not accomplished by showing that the claims for the several charges, when presented to the defendant’s disbursing officers, were not supported by certain' documentary material which the defendant’s regulations required and which the defendant’s disbursing officers would have been justified in demanding before paying the charges.

As the defendant has not sustained its burden of proof, the defendant’s counterclaim for the recovery of amounts previously paid to the plaintiff in the form of appliance servicing charges with respect to shipments Nos. 6, 7,11,13,19, 22,25, 27, and 36 should be dismissed.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Mastín G. White, and the briefs and argument of counsel, makes findings of fact as follows:

General

1. Plaintiff is a corporation organized and existing under the laws of the State of California, with its principal place of business at 3625 Industry Avenue, Lakewood, California.

2. Plaintiff held itself out to the Department of Defense to transport household goods for compensation between points in the continental United States and points overseas, by means of two modes of servicer (1) door-to-door container service, and (2) door-to-door Container-Government (MSTS) service, otherwise known as Mode 5. Plaintiff assumed complete responsibility for such shipments from point of origin to point of destination.

3. (a) Door-to-door container service involves the pre-packing and loading of each shipment into specially designed, carrier-owned containers at the origin residence, transportation of the loaded containers to the port of departure, arranging for movement via vessel 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.

(b) Door-to-door Container-Government (MSTS) service, or Mode 5, is identical with door-to-door container service except that the ocean transportation between military ocean terminals is provided by vessels owned by, or under charter to, the Military Sea Transportation Service (“MSTS”).

4. By a letter of approval dated June 30,1961, plaintiff was authorized by the Department of Defense to provide door-to-door container service and door-to-door Container-Government service between numerous points in the United States and points overseas.

5. Prior to March 1, 1963, plaintiff performed the transportation service contemplated by the June 30, 1961 letter of approval pursuant to various tenders submitted by plaintiff to, and accepted by, 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 non-profit association, incorporated under the laws of the District of Columbia. It represents exempt household goods forwarders, such as plaintiff (its active membership consisting of 44 such forwarders), in 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.

The Issumee of MBT No. 1

7. In 1962, it became apparent that the then-existing system of individual rate tender filings by household carriers precluded efficient processing of the rate .tenders by the Defense Traffic Management Service (hereinafter sometimes referred to as “DTMS”) of the Department of Defense. Transmission of rate information from DTMS to installation transportation offices was unduly delayed by manual processing of the thousands of individual tenders.

8. The household goods transportation industry was advised of the pending EAM system of 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 8, 1962. In attendance at this meeting were Calvin W. Stein, the Executive Director of the Household Goods Forwarders Association of America, Inc., and F. L. Wyche, Executive Secretary of the Household Goods Carriers’ Bureau.

9. On November 28, 1962, Colonel Darrell H. Burnett, Chief of the Freight Negotiations Division of DTMS, wrote to Calvin W. Stein, Executive Director of the Forwarders Association, a letter which stated in part as follows:

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.
All carriers who wish to participate in through Government Bill of Lading Department of Defense traffic must have the provisions as stated herein in their basic tender. Additional provisions may, be added when the need exists. However, these additional provisions must be submitted to Headquarters, Defense Traffic Management Service (HQ, DTMS) for consideration before they will be accepted. Carriers will be required to strictly conform to the standards as set forth in this tender * * *.
The inclosed basic tender may be forwarded to members of bureaus to allow individual carriers to submit these provisions if they so desire. It is most advantageous for the carrier industry and the Department of Defense to have these provisions submitted by a bureau, agency or association for its participating carriers. This is not intended to require carriers to become members of bureaus, agencies or associations, but merely point out that the bureaus, agencies, etc., are excellent focal points to insure reducing the administrative burden.
Since this tender provides rules and regulations governing the through Government Bill of Lading rates in all modes submitted on the EAM Card Tender Format, it must be published prior to the effective date of such rates. It is necessary that all carriers, bureau, agencies or associations filing the basic tender under the provisions outlined herein, submit same to HQ, DTMS not later than 22 January 1963.
On 1 February 1963 all basic tenders presently on file at HQ, DTMS for through Government Bill of Lading Household Goods Carriers will be cancelled.
This basic tender does not relieve the necessity to file single factor rates on the EAM Card Tender Format.

10. The basic tender mentioned in finding 9, designated as Military Basic Tender No. 1 (hereinafter sometimes referred to as “MBT No. 1”), was duly filed on plaintiff’s behalf by the Forwarders Association; it became effective March 1, 1963; and, together with supplements and reissues thereof, it covered the military household goods shipments involved in this litigation.

11. 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 MBT No. 1 itself covered the charges to be assessed for the performance of additional or accessorial services, and provided for allowances from the single-factor rates which were applicable in certain circumstances, e.y., Items 20 and 25 provided allowances to the Government when Government-owned or cones containers were utilized and when shipments originated from a storage warehouse and the preliminary packing had already been performed.

12. 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.

13. Military Basic Tender No. 1 was drafted by the Defense Traffic Management Service of the Department of Defense.

14. 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 the terms of MBT No. 1. Plaintiff, by a limited power of attorney, delegated to Mr. Stein, of the Forwarders Association, authority to file MBT No. 1 on plaintiff’s behalf. This power of attorney was limited to the filing of the tender, and expressly provided that the level of rates for charges for the subject transportation was “reserved for * * * [plaintiff’s] individual determination.”

15. Neither plaintiff nor any other carrier participating in the subject traffic could make any change in Military Basic Tender No. 1 without first obtaining the concurrence of DTMS.

16. Plaintiff was compelled to accept the terms and conditions set forth in Military Basic Tender No. 1 as a condition precedent to its continued participation in Department of Defense household goods traffic, i.e., plaintiff had the choice of either submitting MBT No. 1 in the form transmitted by DTMS or discontinuing its participation in the subject traffic.

Pertinent Provisions of MBT No. 1 and DSAR ^500.1

17. Item 10 of MBT No. 1 covered tibe application of tibe tender and provided in pertinent part as follows:

This tender applies on the transportation of HOUSEHOLD GOODS (as defined in Item 85 herein) BETWEEN POINTS WITHIN THE CONTINENTAL UNITED STATES (other than Alaska and Hawaii) AND OVEBSEAS POINTS (including Alaska and Hawaii). The term “Continental United States” as used herein, includes all points within the 48 states and the District of Columbia, but does not include Alaska and Hawaii.

18. Item 15 of MBT No. 1 was entitled “Application of Single Factor Transportation Bates” and provided in part as follows:

The single factor transportation rates filed with DTMS on EAM tender format apply on personal effects and property as defined in part (1), Item 85, from the origin installation and a radius of fifty (50) miles (EXCEPT within ALASKA a radius of 14 miles) to the specified destination area.
Single factor transportation rates INCLUDE THE FOLLOWING SERVICES:
a. Packing, unpacking and the use of packing material. (Shipping containers and packing material furnished by the carrier will remain the property of the carrier).
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-m-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.

19. (a) Item No. 25 of MBT No. 1 was entitled “Shipments from Storage” and stated as follows:

Any shipment moved from a storage warehouse, and for which preliminary packing was performed prior to storage, will not be repacked. In such cases the applicable single factor rate named will be reduced by $1.50 per net cwt.

(b) Item 25A in Supplement No. 1 to MBT No. 1 provided as follows:

Any shipment originated at a storage warehouse, and for which preliminary packing was performed prior to storage, will not be repacked unless directed by the transportation officer to insure safe transportation to destination. When packaging is not required, the applicable single factor rate named will be reduced by $1.50 per net cwt.

20. Item 45 of MBT No. 1 was entitled “Storage-in-Transit Period” and provided that “Storage-in-transit service provided in this tender will be for a period of 180 days.”

21. Section II of MBT No. 1 was entitled “Additional Services” and provided that “Rates and charges for additional services shown in this Section, are in addition to the SINGLE FACTOR TRANSPORTATION RATES filed with the Defense Traffic Management Service on EAM tender format, making reference to this publication as a basic tender.”

22. Item 115 of MBT No. 1 was entitled “Household Appliances Or Other Articles Requiring Special Servicing for Safe Transportation” and provided as follows:

The transportation rates in this tender include the servicing ana unservicing of articles which have free moving parts, mechanisms, attachments or accessories, which if not properly serviced, would be damaged or rendered inoperative during transit, (EXCEPT transportation rates DO NOT include servicing articles listed below and those of unusual nature or high value) subject to the following provisions:
The following articles will be serviced and unserviced at the rates indicated; (the charge includes both servicing and unservicing):
WASHERS requiring servicing other than tightening down bolts and securing permanent installed braces:
DRYERS;
HI-FI, STEREO, HI-FI STEREO or PHONOGRAPH SETS requiring servicing other than securing the needle or player arm and turntable.

23. Item 130 of MBT No. 1 was entitled “Extra Pick-Up or Delivery” and provided as follows:

Portions of a shipment will be picked-up or delivered at one or more places within a 50 mile radius (EXCEPT within ALASKA a 14 mile radius) of the origin or destination point at an additional charge of $10.00 per stop or call (within ALASKA — $16.50 per stop or call), plus the single factor transportation rate based on the weight of the entire shipment.
If extra pick-up or delivery is beyond a 50 mile radius (EXCEPT within ALASKA beyond a 14 mile radius) of origin or destination point, an additional charge of $10.00 per stop or call (within ALASKA — $16.50 per stop or call) will 'apply, plus a land transportation rate of 50 cents per net cwt. for each 20 miles or fraction thereof beyond the 50 mile radius (EXCEPT within ALASKA a land transportation rate of 75 cents per net cwt. for each 20 miles or fraction thereof beyond the 14 mile radius), based on the weight of the additional pick-up or delivery, and will be in addition to the single factor transportation rate based on the weight of the entire shipment from origin to destination.

24. Item No. 135 of MBT No. 1 was entitled “Storage in Government Facilities (Outside of Continental U.S. only) ” and provided as follows:

At the option of the destination transportation or shipping officer, when storage-in-transit shipments are delivered to storage in government facilities at destination, carrier will perform delivery and unpacking service within a 50 mile radius (EXCEPT within ALASKA a 14 mile radius) of the point of storage without additional charge.
If delivery point is beyond a 50 mile radius (EXCEPT, within ALASKA beyond a 14 mile radius) of the point of storage, a land transportation rate or 50 cents per net cwt. for each 20 miles or fraction thereof beyond the 50 mile radius (EXCEPT within ALASKA a land transportation rate of 75 cents per net cwt. for each 20 miles or fraction thereof beyond the 14 mile radius) will apply, based on the weight of the entire shipment, and will be in addition to the single factor transportation rate from origin to destination.
The above is subject to a charge of one dollar ($1.00) per cwt. for delivery to storage in government facilities, which charge is in addition to the land transportation rate when delivery is beyond a 50 mile radius (EXCEPT within ALASKA beyond a 14 mile radius) of the point of storage.
Carrier will not assume liability for property while in government facilities.

25. (a) Item 140 of MET No. 1 was entitled “Storage-in-Transit and Warehouse Handling Charges” and provided in pertinent part as follows

APPLICATION
Kates are in cents per 100 pounds and apply in territory or at points shown below based on location of warehouse where storage-in-transit service is provided. (Charges based on actual weight subject to 500 pound minimum).
*****
NOTE 1: Storage charges apply for each 30 days or fraction thereof each time storage-in-transit service is rendered. Warehouse handling charge applies once each time shipment is placed in storage-in-transit.

(b) Two parallel columns, one headed “STORAGE FOK EACH 30 DAYS OK FKACTION THEREOF” and the other headed “WAREHOUSE HANDLING CHARGE,” each quoted a rate of 80 cents for any point in Alaska, a rate of 60 cents for points in 29 named States, the District of Columbia, and Puerto Rico, and a rate of 50 cents for any other point.

26. (a) Item 145 of MBT No. 1 was entitled “Pick-Up or Delivery Transportation Rates To Apply on Storage-in-Transit Shipments” and provided in pertinent part as follows:

APPLICATION
Rates are in dollars and. cents per hundred pounds based on actual weight subject to 500 pound minirrmnn and apply on shipments when released to a value not exceeding 30 cents per pound per article.
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).
For rates to apply when points are not within the same municipality or not within a distance of 50 miles or less (EXCEPT for ALASKA see Schedule E), add to the rates shown below, 50‡ per cwt. for each 20 miles or fraction thereof in excess of 50 miles.
Break Point indicates weight at which a lower charge develops by use of lowest weight and applicable rate m next higher weight bracket. [There followed five schedules or rates applicable to different geographical areas.]

27. (a) Item 150 of MBT No. 1 provided in pertinent part as follows:

RATES TO APPLV WHEN SHIPMENTS ARE DIVERTED OR DESTINATION POINT IS CONSIGNED OR RECONSIGNED AETEK COMMENCEMENT OE TRANSPORTATION SERVICE
The term “diversion” as used herein means any change from original delivery instructions, including consignment or reconsignment of a destination point after commencement of transportation service, when authorized by appropriate government transportation officer or tran-portation agent.
When an order for diversion is received by carrier changing the destination, the route or instructions necessary to effect delivery or requiring an addition to or change in billing or an additional movement of the shipment or both, diligent effort will be made by carrier to locate the shipment and effect the change desired. The carrier will not be responsible for failure to effect the change ordered, unless such failure is due to error or negligence of the carrier or its employee.
Upon receipt of diversion instructions and such is accomplished, a $5.00 Diversion Charge will apply in addition to the following provisions, rates and charges:
SHIPMENTS DIVERTED BEFORE DEPARTURE OF VESSEL FROM THE PORT OF EMBARKATION
$ * $ ‡ ¡u
DIVERTED AFTER DEPARTURE OF SHIPMENT FROM POINT OF PICK-UP:
U.S. ORIGIN: If shipment is diverted to another overseas point that would ordinarily be serviced through the same Port of Embarkation to which shipment is en-route, apply the single factor transportation rate applicable to the new destination point.
If shipment is diverted to another overseas point that would not ordinarily be serviced through the same Port of Embarkation to which shipment is enroute, the point of diversion will be considered the destination point and the diversion rate * * * will apply.
If the shipment is diverted to another point within the Continental United States the diversion rate is * * * [rate set forth].
# ifc $ * ❖
SHIPMENTS DIVERTED AFTER ARRIVAL AT PORT OF DEBARKATION
DIVERTED PRIOR TO SHIPMENT LEAVING PORT OF DEBARKATION:
U.S. DESTINATION: If shipment is diverted to another point within the Continental United States that would ordinarily be serviced through the same Port of Debarkation, apply the single factor transportation rate applicable to the new destination point.
If shipment is diverted to another point within the Continental United States that would not ordinarily be serviced through the same Port of Debarkation, the Port of Debarkation will be considered ’the destination point and the single factor transportation rate to such point will be applicable. Further transportation to the new destination point within the Continental United States will be at the diversion rate of 50 cents net cwt. per 20 highway miles, or fraction thereof. * * *
‡ ‡ $
DIVERTED AFTER SHIPMENT HAS LEFT THE PORT OF DEBARKATION:
U.S. DESTINATION: If shipment is diverted to another point within the Continental United States, the point of diversion will be considered the destination point, and the single factor transportation rate to the point of diversion will apply. Further transportation will be considered a new shipment and the diversion rate of 50 cents net cwt. per 20 highway miles, or fraction thereof, will be assessed. This rate applies also to Reconsignments. * * *
OVERSEAS DESTINATION: If shipment is diverted to another point within the same destination country, the point of diversion will be considered the destination point, and the single factor transportation rate to the point of diversion will apply. Further transportation will be subject to carrier’s applicable rate.

(b) Item 150D of MBT No. 1 was amended in Supplement No. 8, effective December 7, 1964, by inserting tbe following note at tbe end of that item:

NOTE: When diversion of reconsignment instructions are received while shipment is in storage-in-transit, charges for delivery from storage-in-transit will be those provided in Item 145 herein.

This amendment was also marked by the triangular symbol which signified that the change involved wording only, not charges.

(c) Item 150D of MBT No. 1 was again amended in Supplement No. 9, effective June 1,1965, by cancelling the above-quoted note hi Supplement No. 8, without explanation. The new cancellation was marked by the triangular symbol which signified a change in wording only, not charges.

28. Item 155 of MBT No. 1 was entitled “Pick-Up Outside 50 Mile Badius of Origin Installation” and provided in part as follows:

The single factor transportation rate filed with Defense Traffic Management Service, in accordance with Part V of Procedures for the Submission and Processing of Household Goods Bate Tenders, from an origin installation will be applicable for pick-up within a radius of 50 miles of that installation. * * *
* ta * # *
If the mileage from the actual point of pick-up to the Port of Embarkation (as described under No. 2) is LESS than the mileage from the installation to the Port of Embarkation (as described under No. 1), the single factor transportation rate ONLY will apply.
If the mileage from the actual point of pick-up to the Port of Embarkation * * * is GBEATEB than the mileage from the installation to the Port of Embarkation * * *,_then the excess mileage will be the basis for determination of the arbitrary rate, and applies in addition to the single factor transportation rate from the installation to point of destination.

29. Defense Supply Agency Begulation (DSAB) 4500.1 was in effect during all times relevant to this case, and provided in part as follows:

4. Door-to-Door Container. All commercial services utilizing containers; i.e., wooden boxes, plywood, steel, or other suitable containers affording adequate protection from origin residence to destination residence; placing and loading of containers at residence (for shipments to and from other areas: transportation of loaded container to port of departure; arranging for ocean movement on commercial vessels and/or aircraft; and transportation of loaded containers beyond port of discharge to residence at destination); and unloading containers and placing household goods into residence. (Household goods may be moved from a DGD commercial contract storage warehouse to a carrier’s local facility for containerization whenever the origin transportation officer determines that the best interest of the Government and the owner can be served.)
XVI. USE OF STORAGE-IN-TRANSIT
A. Application. Storage-in-transit as defined in carrier’s tariff shall be used when commercial temporary storage is required (including shipments arriving at the destination prior to a preferred arrival date) incident to transportation in connection with a permanent change of station. The name of the storage warehouse will not be specified by the transportation officer. The use of contract storage shall be used only when it is clearly evident that the best interests of the Government can be served thereby (after considering such factors as overall cost and liability of the carrier as a common carrier versus that of a warehouseman).
*****
XX. DIVERSION OR RECONSIGNMENT.
A, Actions Constituting Diversion or Reconsignment. Any of the following actions affecting a shipment after it has been tendered to the carrier for transportation and before it has been released from the custody of the carrier will constitute a diversion or reconsignment.
1. Change in the name of consignor.
2. Change in the name of consignee.
3. Change in the destination.
4. Change in the route when requested by a transportation officer.
5. Any other instructions given to the carrier that are necessary to effect delivery and require a change in billing and/or an additional movement of the vehicle.

C. Responsibility of Transportation Officer Requesting the Diversion or Reconsignment.

1. Request to Oarrier. — Requests for diversion or reconsignment of shipments will be placed directly with the initial line-haul carrier having responsibility for the through movement. Oral requests will be confirmed in writing.
2. Information to Be Furnished, Carrier.
(a) Date of shipment.
(b) Consignor.
(c) Point of origin,
d) Consignee,
el Point of destination,
f) Government bill of lading number,
g) New information such as new consignee, new destination, or other instructions.
3.Documentation. — Authentication of the recon-signment of diversion action will be prepared as follows:

Issue No. 1 — The “Normal Port” Diversion Claims

30. (a) Shipment No. 30 (Arthur H. Moore) originated in Germany. Government bill of lading B-3219861 covers a shipment belonging to Sergeant Arthur H. Moore, which was picked up by plaintiff on March 25,1963 in Worms, Germany, for transportation to Brooklyn, New York. The bill of lading shows the consignee to be “Carrier’s Port Facility T/O Brooklyn Army Terminal, Brooklyn 50, N.Y.,” with a notation, “Hold for Military Instructions.” The destination shown on the bill of lading is Brooklyn, New York.

(b) The shipment moved to the Port of Bremen, Germany, where plaintiff’s agent placed it on board the SS AMERICAN ANGLER of the United States Lines Company, consigned to Trans Ocean Yan Service, Long Beach, California, with instructions to address the arrival notice to Major Yan Lines, Inc., 601 Ocean Avenue, Jersey 'City, New Jersey. On April 1,1963, plaintiff transmitted to Major Yan Lines, Inc., 601 Ocean Avenue, Jersey City, New Jersey, the original supporting documents covering this shipment. On April 3,1963, Major Yan Lines, Inc., sent an advance notice of arrival of this shipment to Headquarters, Brooklyn Army Terminal, Freight Traffic Division, First Avenue and 58th Street, Brooklyn 50, New York.

(c) On April 15, 1963, the BrooHyn Army Terminal issued its diversion order diverting the shipment to 132 West Jefferson, Areola, Illinois. On April 16, 1963, plaintiff’s agent, Major Yan Lines, Inc., instructed Chicago Express to pick up this shipment at Pier 74, North Liver, New York, and consign it to Hamman Bros. Transfer and Storage Warehouse, 601 East Williams Street, Decatur, Illinois. The Chicago Express, Inc., performed the requested transportation, and the shipment was delivered to and stored in transit at the warehouse of plaintiff’s agent in Decatur, Illinois, for a period of 88 days, from April 25, 1963 to July 22, 1963, when the shipment was delivered to the owner’s residence in Areola, Illinois.

31. At the time when the shipment mentioned in finding 30 moved, plaintiff had in effect its tender of service of uncrated household goods. Appendix 6 to plaintiff’s nondomestic military household goods service tender named the following stateside ports for shipments originating in Germany: Boston, Massachusetts; New York, New York; Philadelphia, Pennsylvania; Baltimore, Maryland; Norfolk (Hampton Loads), Virginia; Charleston, South Carolina; New Orleans, Louisiana; and Houston, Texas. Of the ports named in plaintiff’s nondomestic military household goods service tender in effect at the time, Baltimore, Maryland, is the closest port to Areola, Illinois, on shipments destined to Areola from Germany. This distance, by reference to the Household Goods Carriers Bureau Mileage Guide No. 7, shows that Baltimore is 146 miles closer to Areola, Illinois, than New York City.

32. On shipment 30, plaintiff billed and was paid in accordance with administrative practice the line-haul transportation charge from Germany to New York of $191.77 and the diversion mileage charge from New York to Areola in the amount of $136.53, plus the flat $5 diversion charge under Item No. 150. This payment took place on August 29,1963. On November 9,1964, defendant, through its General Accounting Office, issued an overcharge notice against the plaintiff in the amount of $115.58. The amount of the claimed overcharge was computed by applying the single-factor rate from Germany to Illinois, rather than to New York, resulting in a line-haul charge of $212.13, and by allowing only the flat $5 diversion charge under Item 150. On November 23, 1964, plaintiff protested the notice of overcharge on the ground that a shipment going from Germany to Areola, Illinois, would have been routed through the Port of Baltimore, since Baltimore is 146 miles closer to Areola, Illinois, than the Port of New York. The claimed overcharge in the amount of $115.58 was refunded by the plaintiff on April 11,1966, and was deposited to the account of the United States on May 4,1966.

33. The routing of shipments moving under MBT No. 1 to the destinations designated on the Government bills of lading was, under defendant’s regulations and as a matter of practice, left up to the carrier. Plaintiff pre-planned the routing of shipments tendered to it and sought to achieve operating economies by consolidating shipments in carload lots.

34. In determining what port would ordinarily service an inland destination, the carrier, in addition to considering the closeness of the port to the final destination, must consider other matters. These other considerations involve frequency of sailings, transit time, the cost of handling through each port, and the practicability of consolidating with other shipments for land transportation. The prime consideration to the carrier is what is the lowest overall cost in handling a shipment. Shipments are routed from origin to destination in a manner that produces for the carrier the lowest overall cost. As a result, there are certain ports that are habitually used for certain traffic patterns.

35. (a) Shipment No. 20 involves Government bill of lading B-3393346, which covers a shipment belonging to Sergeant Joseph B. Cosmano that was picked up by the plaintiff on December 5,1963 in Germany for transportation to Brooklyn, New York. The bill of lading shows the consignee to be “T. O. BAHT, Brooklyn, New York,” and carries the notation, “Hold for military instruction.” There is also a reference in the “consignee” block to “MSGT Joseph B. Cosmano.” The destination was given 'as “Brooklyn, New York.” The bill of lading stated that SIT was authorized at carrier’s port facility for a period not to exceed 90 days and that plaintiff was to contact owner at 12 Woodrow Street, Rochester 6, New York.

(b) The shipment moved to the Port of Bremen, Germany, where plaintiff’s agent placed it on board the SS AMERICAN PILOT of United States Lines Company, consigned to plaintiff with notation that arrival notice was to be sent to plaintiff’s agent, Major Van Lines, Jersey City, New Jersey.

(c) A notice of diversion, dated January 2,1964, was issued by the transportation officer, Brooklyn, New York, instructing plaintiff’s agent, Major Van Lines, to make delivery to 12 Woodrow Street, Rochester, New York. Plaintiff’s agent at Jersey City routed the shipment via the Central New York Freightways and consigned it to plaintiff’s agent at Rochester, New York. That agent delivered the shipment to the address contained in the 'bill of lading and the diversion notice.

36. On March 27,1964, plaintiff submitted its voucher for shipment 20, and billed the through rate to New York, plus the diversion fee of $5. The voucher was paid on May 6,1964. No audit or notice of overcharge action was issued against the plaintiff on this shipment by the General Accounting Office. On August 5, 1965, some 15 months later, plaintiff submitted a supplemental bill to the General Accounting Office for $64.63. Plaintiff is claiming at this point $55.51 on this shipment as the mileage diversion charge.

37. (a) Plaintiff claims respecting shipment 20 the normal port for a shipment arriving from Germany destined to Rochester, New York, is Philadelphia, Pennsylvania. Philadelphia is 7 miles closer to Rochester, New York, than New York City.

(:b) At the time when shipment No. 20 moved (December 1963), both Philadelphia and New York City were named in plaintiff’s service tender as stateside ports for shipments originating in Germany.

38. The General Accounting Office consistently took the position on shipments moving prior to March 1,1963 that, in the absence of a definition in the plaintiff’s nondomestic service tender of the normal port of entry, tbe port nearest to the destination would be considered the normal port; and the GAO so advised plaintiff in hundreds of letters.

39. On September 15,1906, the Household Goods Forwarders Association of America, Inc., acting for plaintiff and other carriers, published Military Basic Tender No. 1-A, which cancelled MBT No. 1. It was a negotiated tender which was accepted by the Department of Defense and became effective on October 1, 1966. In MBT 1-A, Item 150 was rewritten to provide that the normal port of entry was to be determined by reference to Appendix 1, copy of which accompanies this opinion. The appendix contains a list of foreign countries arranged in ten separate groups. Opposite each group there are listed ports in the United States that are ordinarily used to service shipments moving between the United States and each of the countries named in that group. For determination of diversion charges, Appendix 1 provides that the normal port utilized on a shipment to the continental United 'States will be determined by selecting from the ports listed for each country of origin the port which is closest to the final destination to which the shipment is diverted. Appendix 1 represented the parties’ mutual construction of what was intended by the provisions of Item 150 of MBT No. 1 regarding the ports ordinarily used during the period in issue in this case.

40. The Port of New York was the normal port of entry for shipment No. 20, which was diverted to Bochester, New York. Plaintiff’s charges for that shipment should be computed on the basis of the single-factor rate applicable from point of origin to destination, plus the diversion fee of $5.

41. Baltimore, Maryland, rather than the Port of New York, was the normal port of entry for shipments destined from Areola, Illinois, to Germany. On shipment No. 30, plaintiff is entitled to the line-haul charges from Germany to New York at the single-factor rate and the mileage diversion charges from New York to Areola, Illinois, plus a flat $5 'diversion charge.

Issue No. H — The “Port” Diversion Claims

42. (a) Shipment No. 31 (Government bill of lading B-9350340) was a shipment belonging to Staff Sergeant Howard J. Payne, which was picked up in the Philippine Islands by plaintiff on June 21, 1963 for transportation to Oakland, California. The bill of lading shows the consignee to be “U.S. Army Trans. Term. Comd. (Pac)” and the destination as “Oakland, California.” The bill of lading stated that “SIT not to exceed 90 days is auth at carrier’s port facility,” and that plaintiff was to “hold for disposition instructions.”

(b) The shipment moved to the Port of Manila, where plaintiff’s agent placed it aboard the SS PRESIDENT TAFT, consigned to the plaintiff’s agent at Richmond, California. Upon the arrival of the shipment at the port of debarkation, it was taken from the pier by the plaintiff’s agent and was placed in the agent’s warehouse at Oakland, which serviced the port, for a period of 20 days from August 6, 1963 to August 26,1963, pending the receipt of delivery instructions from the defendant.

(c) The shipment was diverted to Transportation Officer, Blytheville Air Force Base, Arkansas, on August 26, 1963, by the Oakland Army Terminal Command. Plaintiff’s agent at Oakland consigned the shipment to plaintiff’s agent at Blytheville, Arkansas, and placed it in a consolidated rail car on September 11, 1963, with shipments of other carriers. Plaintiff’s agent at Blytheville delivered the shipment to the owner’s residence at 417 E. Ash in Blytheville on September 24,1963, without further storage.

(d) On August 8,1963, plaintiff submitted its first bill on shipment 31 for $242.48 for the line-haul charges based on the single-factor rate from the Philippine Islands to California. The bill was paid without audit on September 10, 1963. On September 11, 1963, plaintiff submitted its supplemental billing for the diversion mileage charge from Oakland, California, to Blytheville, Arkansas, of $437.25, plus the $5 diversion fee (in addition to storage and warehousing charges of $9.54, which are not in dispute), plus $35.38 for “delivery into storage.” This bill was paid without audit on October 15,1963.

(e) On January 14,1965, the defendant, through the General Accounting Office, issued a notice of overcharge on shipment 31 in the amount of $413.01. The notice of overcharge allowed plaintiff the single-factor rate from the Philippine Islands to Arkansas of $302.10, plus the $5 diversion charge and the applicable storage and warehouse handling charges. On January 20, 1965, plaintiff protested the notice of overcharge on the ground that the diversion took place after the shipment had left the port of debarkation, as evidenced by the fact that it was stored in transit at Oakland, California. Plaintiff also stated that the charge of $35.38 was for delivery of the shipment from the storage-in-transit warehouse at Oakland to the freight terminal at ftichmond, California, for transportation to the diverted destination. The amount of the overcharge ($413.01) was collected from the plaintiff by the GAO on April 25,1966.

(f) Plaintiff’s claim for diversion compensation under Item 150 from the warehouse in Oakland to the residence in Blytheville is an alternative claim in the event the court finds that the delivery from the warehouse is not compensable under Item 145.

(g) Plaintiff’s claim with respect to the diversion of shipment 31 from Oakland to Blytheville is predicated on the allegation that the shipment had left the port of debarkation at the time when the diversion order was issued.

43. Plaintiff’s nondomestic military household goods service tender in effect November 7, 1963 listed both San Francisco, California, and New Orleans, Louisiana, as stateside ports for shipments originating in the Philippines. Of the two ports listed, New Orleans is substantially closer to Blytheville, Arkansas, than San Francisco, California.

44. (a) Shipment No. 7 (Government bill of lading B-4732385) was a shipment belonging to Major Eaymond A. Williams, which was picked up by the plaintiff on July 29, 1963, at Kadena Air Base, Okinawa, for transportation to Oakland, California. The bill of lading shows the consignee to be “Transportation Officer, Oakland Army Terminal” and the destination to be “Oakland 14, California.” The bill of lading states that SIT was authorized for a period of 90 days and that plaintiff was to “notify consignee prior to SIT.” The bill of lading also carried a notation “Hold for Disposition.”

(b) The shipment moved to the Port of Naha, Okinawa, where plaintiff’s agent placed it on board the SS LONG VIEW VICTORY of the States Marine-Isthmian Agency, Inc., consigned to plaintiff’s agent at Richmond, California. The shipment was placed in the warehouse of plaintiff’s agent at Oakland, California, where it was stored for a period of 31 days from August 23, 1963 to September 25,1963. The shipment was then picked up by Bus-Van & Storage of San Francisco for non-temporary storage.

(c) In the earlier stages of this litigation, plaintiff was claiming on shipment I a diversion mileage charge of $16.30, plus $5, from the Oakland Army Terminal to the storage-in-transit warehouse at Oakland, plus a diversion mileage charge from the storage-in-transit warehouse to the non-temporary storage warehouse of $16.30, plus $5, under Item 150 of MBTNo. 1.

(d) Plaintiff performed no service in moving shipment I from the SIT warehouse at Oakland to the non-temporary storage warehouse. The plaintiff has stated that it is withdrawing its claim for the diversion mileage charge in the amount of $16.30 for the movement from SIT, and is claiming only the minimum flat $5 diversion charge in connection with this alleged diversion.

(e) On shipment Y, plaintiff billed and was paid on October 4, 1963, without audit, the amount of $912.52 based on the single-factor through rate from Okinawa to California. This charge is not in dispute. On November 22,1963, plaintiff billed and was paid, without audit, the applicable storage and warehouse handling charges, plus $81.48 for delivery to storage. On February 1, 1965, plaintiff submitted and was paid, without audit, the $15 for the appliance servicing. Defendant claims that plaintiff has been overpaid $96.48 on this shipment, but the overcharge relates to issue No. 9 and the appliance servicing charge.

45. The term “port of debarkation,” as used in Item No. 150, is not defined in MBT No. 1. In October 1966, MBT No. 1-A became effective; and it defines tbe term “port of embarkation and/or debarkation” as: “The entire port area, including terminal facilities and storage warehouses used for discharge or beyond movement, or storage-in-transit pending beyond movement.”

46. (a) Shipment No. 14 (David B. Timm) originated in Hawaii and was consigned to the property owner at San Francisco (no San Francisco street address being furnished). Plaintiff placed the shipment on the Pacific Hawaiian Line vessel, ELLEN FOSS, consigned to its agent in Eichmond, California. On discharge from the vessel at Eichmond and after the shipment was removed from the pier and in the hands of the plaintiff’s agent, defendant ordered the shipment placed in storage-in-transit. Plaintiff accordingly placed the shipment in its agent’s warehouse at 2990-7th Street, Berkeley, California. At the end of 89 days’ storage-in-transit in Berkeley, defendant directed plaintiff to deliver the shipment to 263 Euclid Avenue, Apt. 203, Oakland, California.

(b) On shipment 14, plaintiff billed and was paid the line-haul transportation charge from Hawaii to California in the amount of $241.80. Plaintiff here seeks payment of (1) the diversion mileage charge from the contract destination point, viz., San Francisco, to the storage-in-transit warehouse in Berkeley, in the amount of $18.60, plus the flat $5 diversion charge, under Item 150, and (2) the diversion mileage charge from the warehouse in Berkeley to the actual delivery point in Oakland, in the amount of $18.60, plus the flat $5 diversion charge, also under Item 150, making a total claim of $47.20.

Plaintiff’s claim for diversion compensation under Item 150 from the warehouse in Berkeley to the residence in Oakland is an alternative claim in the event the court finds that the delivery from the warehouse is not compensable under Item 145.

47. (a) Shipment No. 6 (Charles E. McCormick) originated in Germany and was consigned to “SFC. CHAELES E. MoCOEMTCK * * * POET TEANS OFFICES AEMY TEEMXNAL COMMAND, BEOOKLYN, N.Y. * * The date of the shipment from Germany was December 6, 1963. After the arrival of the shipment in New York, it was offered to the Transportation Officer at Brooklyn Army Terminal for delivery. Instead of taking delivery at Brooklyn, defendant ordered the shipment placed in storage-in-transit. Plaintiff accordingly placed the shipment in its agent’s warehouse in Kearny, New Jersey, on January 20, 1964. Some four months later defendant directed plaintiff to deliver the shipment to the property owner at 4413 Sims Street, Columbus, Georgia, instead of to the contract destination in Brooklyn.

(b) On shipment 6, plaintiff billed and was paid the line-haul transportation charges from Germany to New York in the amount of $632.40 and for a diversion mileage charge from New York to Columbus, Georgia, in the amount of $266.24, plus the flat $5 diversion charge, under Item 150. Plaintiff also billed and was paid $52.70 under Item 145 for the movement into SIT at Kearny, and plaintiff billed, but was not paid under Item 145 for the movement out of SIT to Columbus, Georgia. See finding No. 54.

(c) Under Item 150, plaintiff claims it is entitled to (1) a diversion mileage charge from Brooklyn Army Terminal to the Kearny, New Jersey, warehouse, in the amount of $31.62, plus the flat $5 diversion charge, and (2) the diversion mileage charge from the Kearny, New Jersey, warehouse to the actual delivery point in Columbus, Georgia, in the amount of $265.61, plus the flat $5 diversion charge, a total of $307.23. Plaintiff has been paid $271.24 ($266.24 plus $5) for the diversion transportation performed on this shipment; and plaintiff here seeks under Item 150 the balance of the diversion charges claimed as due in the amount of $35.99 ($307.23 total diversion charges less $271.24 paid). *

(d) Plaintiff’s claim for diversion compensation under Item 150 for the movement from the warehouse in Kearny is an alternative claim in the event the court finds that the delivery from the warehouse in Kearny is not compensable under Item 145.

48. When a shipment arrives at a port of debarkation, plaintiff’s port agent clears the shipment through customs and turns the shipment over to plaintiff’s destination agent. The destination agent generally moves the shipment to its facilities located away from the pier before offering the shipment to defendant’s local transportation officer for delivery instructions or advice as to whether the shipment should be placed in storage-in-transit. In some places, such as New York, the functions of port agent and destination agent are performed by the same person.

Issues Nos. 3 and 6 — “Diversions” to and from SIT

49. 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. This is well understood by members of the household goods transportation industry. In such a situation, it is customary to consign the household goods to the owner at the military installation where he is expected to serve, to authorize storage-in-transit, and to instruct the carrier that, upon the arrival of the shipment at the railhead or port servicing the destination military post, the carrier shall notify the post transportation officer before delivering the goods or placing them in storage-in-transit. If the uncertainty concerning the property owner’s new residence and time of arrival has not been resolved when the shipment reaches the railhead or port servicing the destination military post, the shipment is placed in storage at the destination point, and the carrier then awaits further delivery instructions from the post transportation officer or the owner of the household goods. This procedure is known as placing the shipment in “storage-in-transit.”

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

51. (a) Shipment No. 18 (Mack D. Arntz) originated in Germany and was consigned to “Mack D. Arntz” (the property owner) and was destined to “1st AG Co. Admin., Ft. Riley, Kansas.” The date of shipment was October 3,1963. The bill of lading authorized SIT at destination for not to exceed 90 days, but directed the plaintiff to notify the transportation officer at Ft. Riley upon the arrival of the goods and prior to delivery or placing in storage. The transportation officer at Ft. Riley ordered the shipment placed in storage-in-transit; and plaintiff’s agent accordingly placed the shipment in SIT in the agent’s warehouse at Junction 'City, Kansas, on November 26, 1963. After two months, on January 23, 1964, the transportation officer at Ft. Riley ordered the shipment diverted to Fort Sheridan, Illinois. Subsequently, the transportation officer at Fort Sheridan instructed the plaintiff’s agent to place the shipment into SIT, which was done in the agent’s warehouse at Des Plaines, Illinois. After 117 days’ storage at Des Plaines, the transportation officer at Fort Sheridan ordered the shipment delivered to the owner at 528 Plawley Street, Mundelein, Illinois.

(b) On shipment 18, defendant paid plaintiff line-haul charges from Germany to the State of Kansas, and diversion mileage charges in the amount of $176.90, plus the flat $5 diversion charge, under Item 150 for a single diversion referred to as “From Junction City, Kansas to Mundelein, Illinois,” i.e., total diversion charges of $181.90.

(,c) Under Item 150, plaintiff claims it is entitled to: (1) a diversion mileage charge for the alleged diversion from the contracted consignment point shown on the GBL, viz.. Ft. Riley, to the SIT warehouse in Junction City, Kansas, in the amount of $28.38, plus the flat $5 diversion charge, under Item 150; (2) a diversion mileage charge for the alleged diversion from the warehouse in Junction 'City, Kansas, to Fort Sheridan, Illinois, in the amount of $178.79, plus the flat $5 diversion charge; (3) a diversion mileage charge for the alleged diversion from Fort Sheridan to the SIT warehouse at Des Plaines, Illinois, in the amount of $28.38, plus the flat $5 diversion charge; and (4) a diversion mileage charge for the alleged diversion from the warehouse in Des Plaines to the residence in Mundelein, Illinois, in the amount of $28.38, plus the flat $5 diversion charge. Thus, plaintiff claims total diversion charges of $283.93 under Item 150, and thereunder seeks the balance of the diversion charges claimed as due it for this additional transportation sendee in the amount of $102.03 ($283.93 total diversion charges less $181.90 paid).

(d) Plaintiff’s claims for diversion compensation under Item 150 for the movements from the warehouse in Junction City, Kansas, and in Des Plaines, Illinois, are alternative claims in the event the court finds that the deliveries from those SIT locations are not compensable under Item 145.

52. (a) Shipment No. 27 (Ernest Bookman) originated in Germany and was consigned to “1302 Washington St., Lawton, Oklahoma,” with the contract destination on the GBL being given as “Lawton, Oklahoma.” The bill of lading authorized 90 days’ SIT at destination. When the shipment arrived at Lawton, the plaintiff’s agent was directed by a transportation officer to place the shipment in SIT, and this was accomplished in the agent’s warehouse at Lawton. Defendant subsequently ordered the shipment delivered to the owner’s new residence at 1710 Garfield Street, Lawton, Oklahoma.

(b) On shipment 27, defendant allows plaintiff line-haul transportation charges from Germany to Lawton, Oklahoma; and allows with respect to the SIT at Lawton, Oklahoma, $8.29 for “storage,” $8.29 for “handling,” and $24.86 for the movement “from warehouse.”

(c) Plaintiff seeks payment of: (1) the diversion mileage charge for the alleged diversion from the contract consignment point shown on the GBL, ms., 1302 Washington Street in Lawton, to the storage warehouse at 1107 Summit Street in Lawton, in the amount of $8.29, plus the flat $5 diversion charge, under Item 150; and (2) the diversion mileage charge for the second alleged diversion ordered by defendant from the storage warehouse to the residence at 1710 Garfield Street in Lawton, in the amount of $8.29, plus the flat $5 diversion charge, under Item 150, or alternatively, in the amount of $32.42 as a delivery from SIT under Item 145.

53. (a) Shipment No. 4 (Eobert F. McKenny) originated in Ehode Island and was consigned to “Transportation Officer, Bldg. Jager” at the destination given on the GBL as “Aschaffenburg, Germany.” The bill of lading authorized SIT for not to exceed 90 days at destination, and instructed the plaintiff to “notify T. 0. Bldg. #4 Jager, Aschaffenburg, Ger arr of goods prior to placing in storage.” Upon the arrival of the shipment at the railhead servicing the Aschaf-fenburg military post, the plaintiff’s agent notified the post transportation officer and was directed to place the shipment in SIT pending the receipt of delivery instructions. The storage-in-transit was accomplished by the plaintiff’s agent in the agent’s warehouse located in Darmstadt, Germany. Subsequently, the plaintiff’s agent was directed to deliver the household goods to the owner’s new residence in Aschaffen-burg, and this was done.

(b) On shipment 4, the plaintiff billed the defendant for, and was paid without prior audit, the sum of $242.17, which included the line-haul transportation charge from the origin point in Ehode Island to Germany and, inter alia, a charge of $10.48 for delivery into storage.

(c) In the present action, the plaintiff is endeavoring to recover: (1) the $5 diversion charge and a diversion mileage charge under Item 150 for the alleged diversion of the shipment from the bill-of-lading consignment point in Aschaffenburg to the SIT warehouse in Darmstadt; and (2) alternatively, the $5 diversion charge and a diversion mileage charge under Item 150, or the delivery-out-of-SIT charge under Item 145, for the movement of the shipment from the SIT warehouse to the property owner’s new residence.

54. With respect to shipment No. 6 (see finding 47), plaintiff is claiming, in addition to the diversion mileage charge from the SIT warehouse to 'Columbus, Georgia, a diversion mileage charge from Brooklyn to the SIT warehouse of $31.62, plus the flat $5 diversion charge (Issue No. 3). This is the same movement for which it alternatively claims $52.70 under Item 145 (Issue No. 9). For the movement from the SIT warehouse in New Jersey to the residence, plaintiff alternatively claims a balance due of $266:30 ($537.54 for charges under Item 145, less $271.24 already paid).

55. On shipment No. 7 (see finding 44), plaintiff is claiming $102.78 for a movement from the pier to the SIT warehouse at Oakland; $21.30 under Item 150; and $81.48 under Item 145. Plaintiff is also claiming $102.78 for the movement from the SIT warehouse at Oakland to a non-temporary storage, computed at $21.30 under Item 150; and $81.48 under Item 145. The latter claim (movement from SIT to non-temporary storage) was performed by another carrier, Bus-Van & Storage of San Francisco, which has no relationship to plaintiff, either agency or otherwise. Therefore, plaintiff is claiming $102.98 for services not performed.

Issue No. 7 — 8IT Extensions

56. (a) Shipment No. 6 (see finding 47) originated in Germany and was consigned to the property owner at Brooklyn Army Terminal. The “consignee” block of the Government bill of lading carried the notation “HOLD FOB MILI-TABY INSTB.” The “Marks” block of the Government bill of lading specified that “SIT NOT TO EXCEED 90 DAYS IS AUTH AT DEST.” The shipment was placed in storage-in-transit in Kearny, New Jersey, on January 20, 1964. At the end of the 90-day storage period authorized by the Government bill of lading, plaintiff had not received delivery instructions from defendant; and plaintiff, through its agent in New Jersey, advised the Brooklyn Army Terminal that the authorized 90-day SIT period for the shipment had expired, and requested instructions for disposition of the shipment. The Transportation Officer at Brooklyn Army Terminal issued a Certificate of Necessity extending the SIT period to May 26,1964; and, at the end of 128 days’ storage on May 26, 1964, defendant ordered the shipment diverted to Columbus, Georgia. The shipment moved out of SIT on May 26,1964.

(b) Although plaintiff billed for the additional time in storage in June 1964 and was paid, plaintiff did not claim the $5 for SIT extension under April 23,1965, which bill was not paid.

(c) On shipment 6, plaintiff here seeks payment of the $5 diversion charge under item 150 in connection with the extension of the SIT in Kearny, New Jersey.

57. On shipment No. 18 (see finding 51), the bill of lading authorized 90 days SIT at destination. After 63 days in storage at Junction City, Kansas, the shipment was diverted to Ft. Sheridan, Illinois, and was placed in storage at the warehouse of plaintiff’s agent in Des Plaines, Illinois. On June 30, 1964, the owner of the goods requested the transportation officer at Ft. Sheridan, Illinois, to extend the SIT time for this shipment by 90 days, but not to exceed 180 days, due to the unavailability of quarters. The extension was authorized by the transportation officer at Ft. Sheridan, and plaintiff’s agent was furnished a copy of the authorization. The shipment remained in storage 117 days at Des Plaines, Illinois, until June 1,1964. Plaintiff was paid the applicable storage charges under Item 140 of MBT No. 1, and there is no dispute on these charges. Plaintiff did not bill for the $5 extension charge in its November 1964 billing for the storage charges. Plaintiff did not submit a supplemental billing for the $5 charge claimed now.

58. (a) Government bill of lading C-2090595 covering shipment No. 17 authorized SIT not to exceed 90 days at destination. The shipment was placed in storage at Kearny, New Jeresy, on May 8,1964. While it was in storage, plaintiff’s agent requested advice in writing from the transportation officer, Brooklyn Army Terminal, as to whether storage extension was being issued, since the original 90-day SIT had expired. A certificate of necessity was issued by the transportation officer, Brooklyn Army Terminal, extending SIT time until November 3, 1964. The shipment moved out of storage on November 3, 1964.

(b) Plaintiff submitted a bill for the SIT time, but the bill was not paid. Plaintiff did not bill for the $5 fee for extension of storage.

(c) Defendant has not paid plaintiff for the storage charge, and defendant admits that such charge is due.

Issue No. 9 — Picle-Up and Delivery of SIT Shipments

59. (a) Shipment No. 27 (Ernest Bookman; see finding 52) originated in Germany and was consigned to “1302 Washington Street, Lawton, Oklahoma.” The bill of lading authorized 90 days’ SIT at destination. When the shipment arrived at Lawton, the plaintiff’s agent was directed by the transportation officer at Fort Sill to place the shipment in SIT, and this was accomplished in the agent’s warehouse at Lawton. The transportation officer subsequently ordered the shipment removed from SIT and delivered to 1710 Garfield Street, Lawton, Oklahoma.

(b) On Shipment 27, plaintiff billed and was paid $24.86 under Item 145 for the movement into SIT and $24.86 under Item 145 for the movement out of SIT. The General Accounting Office subsequently issued a notice of overcharge requesting refund of the compensation paid for the movement into SIT; and plaintiff complied with that request and refunded the charge of $24.86 to defendant. (The charge of $24.86 for the movement out of SIT was not involved in the notice of overcharge.) Plaintiff here seeks to recover the amount of the refund, m, $24.86.

60. 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.” Effective December 7,1964, Item 145 was amended to limit compensation under Item 145 to payment for movement into a SIT warehouse at origin and for delivery from a SIT warehouse at destination.

Issue No. I — The 11 Diversion Without SIT” Claims

61. (a) Shipment No. 33 (Pablo Adamos) originated in Guam and was consigned to the property owner at the destination given as “Beeville, Tesas (NAAS) [Naval Air Auxiliary Station].” SIT for not to exceed 180 days was authorized. The “Marks” block on the Government bill of lading provided, in pertinent part, as follows:

* * • CARRIER NOTIFY TO, NAS, CORPUS CHRISTI, TEXAS (PHONE: TE 5-8211 EX 571-2503) UPON ARRIVAL.

On arrival in Beeville, Shipment 33 was, on defendant’s instructions, delivered by the plaintiff’s agent to the property owner at 173 Ann Burke Apartments in Beeville.

(b) On Shipment 33, plaintiff has been paid line-haul transportation charges from Guam to Texas. Plaintiff seeks payment of the mileage diversion charge for the movement from the alleged GBL destination, the Naval Air Auxiliary Station, to the owner’s residence at 173 Ann Burke Apartments, in the amount of $6.56, plus the flat $5 diversion charge, under Item 150, or total diversion charges of $11.56.

62. (a) Shipment No. 2 (George C. Barnes) originated in Texas and was consigned to the property owner with the destination specified on the Government bill of lading as “Hickam Air Force Base, Hawaii.” The “Marks” block of the Government bill of lading provided, in pertinent part, as follows:

* * * CARRIER WILL NOTIFY T. O. AT HICK-AM AFB, HAWAII, UPON ARRIVAL OF GOODS PRIOR TO PLACING INTO STORAGE OR DELIVERING TO RESIDENCE.

Plaintiff was given no delivery address other than “Hickam Air Force Base, Hawaii” when shipment 2 was tendered to it. This shipment was not delivered at any point in Hickam Air Force Base, but, on tendering the shipment to the transportation officer at Hickam Air Force Base, plaintiff was instructed to deliver the shipment to 1514 Kaleilani Place, Pearl City, Hawaii, which is outside the confines of Hickam Air Force Base.

(b) On shipment 2, plaintiff has been paid line-haul transportation charges from Texas to Hawaii. Plaintiff seeks payment of the mileage diversion charge for the movement from the GBL destination to the owner’s residence in Pearl City in the amount of $335.28, plus the flat $5 diversion charge, under Item 150, or total diversion charges of $340.28. The diversion mileage charges claimed are based on plaintiff’s transportation rates applicable between overseas points as provided in Item 150. The evidence in the record does not show that any diversion order was issued by the defendant in connection with this shipment.

63. (a) Shipment No. 19 (CBL B-6881733) was consigned to the owner (Zibulsky) destined for Trans Ocean Yan Service, Brooklyn, New York, with the notation “Hold for Military Instructions,” and carrier to notify T. O., Brooklyn, N.Y., upon arrival of goods. The shipment was embarked from Bremen, Germany, on July 15, 1964, and disembarked at New York in late July 1964.

(b) Prior to the arrival of shipment 19 at New York, plaintiff’s agent sent an advance notice to the Transportation Officer, Brooklyn, New York. On July 22, 1964 (which was several days before the shipment disembarked), the Brooklyn Army Terminal issued a diversion order directing that the shipment be delivered to 230 Jay Street, Brooklyn, New York. This diversion notice was then mailed to plaintiff’s agent, Major Van Lines, in Jersey City on the same day it was issued, July 22,1964. It would have been received by plaintiff’s agent no later than July 25,1964. On August 13, 1964, plaintiff’s agent arranged to have the shipment delivered to the owner’s residence.

(c) On November 5, 1964, plaintiff was paid, as it billed, for the through rate from Germany to New York, plus the $5 flat diversion fee. Plaintiff now claims a diversion mileage charge.

Issue No. 13 — Shipments Paelced at Non-Temporary Storage Origins

64. (a) Shipment No. 1 (Boy C. Alexander) was picked up by plaintiff at the Homer Jones Storage & Transfer Company warehouse in Columbus, Georgia, where it was in non-temporary storage, and was tendered to plaintiff for delivery in Bamberg, Germany. The Statement of Accessorial Services Performed (Form DD 619) at origin shows that two barrels, nine regular cartons, and four mattress cartons were packed by plaintiff. The Household Goods Descriptive Inventory, which was prepared when plaintiff picked up the shipment at origin, shows that this shipment included, inter alia, two barrels (Item Nos. 262 and 263 of the Inventory) and a total of thirteen cartons (Item Nos. 257, 264-275) annotated with the symbol “PBC,” meaning “Packed by Carrier,” i.e.: packed by plaintiff.

(b) On shipment 1, plaintiff billed and was paid $452.16 for the line-haul move from Georgia to Germany, based on the single-factor rate of $31.40 per hundredweight. Defendant subsequently issued a Notice of Overcharge demanding a refund of $21.60 from plaintiff based on the reduction of $1.50 per hundredweight in the single-factor rate provided in Item 25A of MBT No. 1 on shipments originating at storage warehouses for which the preliminary packing had already been performed. Plaintiff paid the demanded refund under protest.

(c) On shipment 1, plaintiff seeks payment of the amount refunded under protest, i.e., $21.60.

65. The “preliminary packing” referred to in Items 25 and 25A of MBT No. 1 is the service of preparing individual items of household goods for shipment by wrapping them in protective packing materials and placing them into cartons or barrels prior to placing the shipment into the large through containers for the movement from origin to destination.

66. The symbols “PBC,” meaning “Packed by Carrier,” and “PBA,” meaning “Packed by Agent” of the carrier, when noted in connection with boxes, barrels, or cartons listed on the Household Goods Descriptive Inventory prepared at the origin of a shipment, show that these boxes, barrels, or cartons were packed by plaintiff or plaintiff’s agent.

Issue No. 14 — Loss of Containers

67. (a) Shipment No. 7 (Raymond A. Williams) originated in Okinawa and was consigned to the Transportation Officer at the Oakland (California) Army Terminal. At origin, in Okinawa, the shipment was packed into three containers belonging to plaintiff: one 220-cubic-foot container, one 153-cubic-foot container, and one 21-cubic-foot container. The “Marks” block of the Government bill of lading contained the direction “HOLD FOE DISPOSITION”; and, on arrival, the shipment was not delivered to the Oakland Army Terminal but, on instructions from defendant, was placed1 into storage-in-transit in the warehouse of plaintiff’s agent, King Way Container Service, at 1401 Middle Harbour Eoad, Oakland, California.

(b) After 31 days in SIT, and on instructions from the Presidio at San Francisco, the shipment, still in plaintiff’s containers, was delivered to Bus-Van & Storage in San Francisco, with which plaintiff had no agency or other relationship, for non-temporary storage. When this occurred, plaintiff lost possession and control of its containers, and did not thereafter recover them.

(c) Plaintiff billed defendant for the alleged value of the containers used' on shipment 7 in the amount of $125, i.e., $25 for the small container and $50 each for the two larger containers. This billing was not paid.

(d) Plaintiff here seeks to recover the amount billed, $125, for the loss of its containers.

68. (a) Shipment No. 29 (Sheila A. McMillan) originated in Okinawa and was consigned to the property owner in Ankara, Turkey. At origin in Okinawa, the shipment was packed into one 66-cubic-foot container belonging to plaintiff. On arrival in Ankara and at defendant’s request, the shipment was placed in storage-in-transit.

(b) After 54 days in SIT, and on defendant’s instructions, the shipment, still in plaintiff’s container, was delivered to defendant’s Transportation Officer in Ankara. When this occurred, plaintiff lost control of its container, which has never been returned to plaintiff, nor has plaintiff been paid for it.

(c) Plaintiff billed defendant $25 for the alleged value of the container used on shipment 29. This billing was returned unpaid to plaintiff.

(d) Plaintiff here seeks recovery of the alleged value of the container in the amount billed, $25.

69. (a) Shipment No. 35 (Louis Price) originated in Seaside, California, and was consigned to the property owner in Bamberg, Germany. At origin in California, the shipment was packed into a 960-cubic-foot container belonging to plaintiff. Because of a maritime strike, tbe shipment, at defendant’s request, was turned over to tbe defendant’s Military Sea Transportation Service (MSTS), which performed the ocean transportation from New Orleans to Bremerhaven. At Brem-erhaven, MSTS did not return the shipment to plaintiff for delivery by plaintiff to the property owner in Bamberg. Instead, MSTS turned the shipment over to the Military Transportation Officer in Bremerhaven, who moved the shipment to Bamberg on a military Freight Warrant. When this occurred, plaintiff lost control of its container, which has never been returned to plaintiff, nor has plaintiff been paid for it.

(b) Plaintiff’s claim on shipment 35 is for the recovery of the alleged value of its container, in the amount of $40.

70. (a) In door-to-door container service under MBT No. 1, when shipments of household goods are tendered to carriers for transportation, the household goods are packed and loaded at the origin point into specially designed containers belonging to the carriers. At the destination residence, the household goods are unpacked from the containers; and the containers, with the necessary packing materials, are retained by the carrier.

(b) There was no provision in defendant’s regulations which permitted a carrier to remove the household goods from the containers prior to delivery to the destination residence. Bemoval prior to delivery to residence could be accomplished only on express authority from a military transportation officer.

71. Non-temporary storage is permanent storage which occurs prior to or after the transportation of a shipment; and is in contrast to storage-in-transit, which is temporary storage performed during the course of the transportation. Non-temporary storage is not performed under the terms of MBT No. 1, but under a separate contract. Plaintiff has never had a contract with defendant for the performance of non-temporary storage. The storage performed by plaintiff for defendant was storage-in-transit under the terms of MBT No. 1.

72. In some instances, when defendant ordered plaintiff to turn a shipment oyer to another carrier or to place it into non-temporary storage, defendant issued specific instructions to plaintiff authorizing plaintiff to remoye the shipments from its containers.

73. Plaintiff discussed with 'Colonel Havens, Chief, Household Goods Traffic Division, Defense Traffic Management Service, Department of Defense, the problem which plaintiff encountered in losing control of its containers when defendant instructed plaintiff to turn shipments over to another carrier or to place them into non-temporary storage. Colonel Havens advised plaintiff that under defendant’s regulations, DSAE 4-500.1, the containers used in handling the containerized shipments of military household goods remained the property of the carrier.

74. The General Accounting Office recognized that, in some instances, the transportation of shipments of household goods was terminated prior to their delivery to the destination residence, and that, in those cases, the shipments were not removed from the carrier’s containers, but remained in the originating carriers’ containers. The GAO recommended that the Department of Defense negotiate with the carriers for continued use of their containers by defendant.

75. The original acquisition cost of the type of containers used by plaintiff ranged from $30 to $40. There is no proof in the record regarding the actual value of the containers at the time of the several shipments, except that the inference is warranted that they had some value.

Issue No. 15 — Additional Transportation Performed on Mode 5 Shipments

76. (a) Shipment No. 8 (GBL B-6745271) was a shipment belonging to LaBue M. Hess which originated in door-to-door Container-Government mode on February 4, 1964 from the Canal Zone and was consigned to the property owner in Benton, Pennsylvania. The shipment moved from Balboa, Canal Zone, via the SS SANTA MAEIA, MSTS, which was bound for the Port of New York. The shipment was picked up from the SS SANTA MAEIA at Grace Line Shed 138, Newark, New Jersey. The shipment was delivered to Benton, Pennsylvania, on March 19,1964. Plaintiff claimed and was paid on the basis oí the single-factor rate from the Canal Zone to Pennsylvania under the door-to-door Container-Government mode.

(b) The nearest port serving Benton, Pennsylvania, on shipments originating in the Panama Canal Zone is Philadelphia, an MSTS port of call, which is 131 miles from Benton. The MSTS vessel carried the shipment to Newark, New Jersey, which is 176 miles from Benton.

(c) On shipment 8, plaintiff billed defendant and was paid $94.50 based on plaintiff’s rate of $18.90 per hundredweight applicable to Mode 5 shipments moving from the Canal Zone to points in Pennsylvania. This payment is not in dispute.

(d) Plaintiff here seeks additional compensation in the amount of $6.75 for transporting this shipment the additional 45 miles from the MSTS port of debarkation in Newark to Benton, Pennsylvania. This amount is computed by utilizing, as the measure of compensation, the mileage rates in Item 150 of MBT No. 1.

(e) Defendant denies plaintiff’s right to this additional compensation.

77. (a) Shipment No. 13 (David E. Fogle) originated in the Canal Zone on February 18, 1964 and was consigned to the Oakland (California) Army Terminal. Defendant designated in the “Traffic Control” block of the GBL that this shipment was to move in the “DOOB. TO DOOB CON-TAINEB GOVT.” mode; and defendant also noted in the “Description of Articles” block of the GBL that this shipment was moving “VIA DOOB TO DOOB CONTAINEB GOVT. (MSTS).”

(b) The nearest port of call to the GBL consignment point of Oakland Army Terminal on shipments moving from the Canal Zone is Oakland, California, an MSTS port of call, which was 10 miles from the Oakland Army Terminal. The MSTS vessel transported the shipment to New Orleans, which is 2,252 miles from the GBL destination in Oakland. The plaintiff picked up the shipment in New Orleans and transported it to the Oakland Army Terminal.

(c) On shipment 13, plaintiff billed defendant and was paid $1,064.24 based on plaintiff’s rate of $21.20 applicable to Mode 5 shipments moving from the Canal Zone to points in California. This payment is not in dispute.

(d) Plaintiff here seeks additional compensation in the amount of $1,276.08 for transporting this shipment the additional 2,242 miles from the MSTS port of debarkation in New Orleans to the Oakland Army Terminal. As with shipment 8 (see finding 74), this amount is computed by utilizing, as the measure of compensation, the mileage rate in Item 150 of MBTNo. 1.

(e) Defendant denies plaintiff’s right to this additional compensation.

78. (a) After the Forwarders Association in September and October of 1965 had called the attention of DTMS to problems that were being encountered by carriers on account of the defendant’s failure, in connection with Mode 5 shipments, to transport such shipments to the MSTS ports of debarkation nearest to the destination points, DTMS on November 3,1965 wrote a letter to the Forwarders Association, stating in part as follows:

c. * * * In the case of shipments to the continental United States, the carrier may designate one of the terminals in Inclosure 1 as the cost favorable port of discharge (POD). Oversea terminals are expected to book shipments accordingly. When direct service is not available, or cannot be arranged in a reasonable time, considering the shipment’s preferred arrival date (PAD), the terminal will book with MSTS for transshipment to the designated cost favorable port.
d. In the event of short-shipment or over-carriage, the ocean carrier is generally responsible for delivery to the designated POD. When a Mode 2 or 5 shipment is delivered to other than the designated discharge port, the TGBL carrier concerned should notify the military terminal at the POD which, in turn, will refer the matter to the Military Sea Transportation Service for necessary action with the ocean carrier.
It is requested the contents of this letter be disseminated to your membership for their information and guidance.

(b) The letter of November 3,1965 was written by DTMS after the transportation of shipments 8 (see finding 75) and 13 (see finding 77) had taken place.

79. Plaintiff participated in the door-to-door Container-Government mode of transportation through MBT No. 1 and its single-factor rates on file with DTMS. In performing this service, plaintiff submitted a service tender which stated in part as follows:

s. We understand that submission of this tender of service to the Executive Director, MTMA, is a prerequisite to our consideration for transportation of household goods; that it does not obligate the Government in the distribution of traffic; and that such submission indicates that we consider ourself to be qualified., willing, and able to accept shipments from military activities and seek such shipments under the terms hereof.

80. Eevised page No. 11, effective November 4, 1963, of plaintiff’s Non-Domestic Military Household Goods Service Tender covered the area of Panama. Plaintiff held itself out to use the following stateside ports for MSTS shipments from Panama: New York, New York; Norfolk, Virginia; and New Orleans, Louisiana. Philadelphia and Oakland were not listed as stateside ports on MSTS shipments.

Issues Nos. 17 and IS — Additional Transportation Performed as a Result of Maritime Strikes

81. (a) Shipment No. 34 ('Calvin D. Perkins) originated in Quitman, Georgia, and was consigned to the property owner in Bamberg, Germany. The nearest port of embarkation for shipments originating in Quitman, Georgia, and destined for Germany is Jacksonville, Florida, a distance of 136 miles. Jacksonville was strike-bound at the time; and plaintiff at first held the shipment at origin awaiting resolution of the strike. However, the transportation officer at origin requested plaintiff to expedite the shipment and to transport it to the Army Terminal at New Orleans, a distance of 481 miles from Quitman, Georgia, where the Army Terminal would make arrangements for MSTS to perform tlie ocean move. Plaintiff complied ■with tbe request of tbe transportation officer, and transported tbe shipment the 345 additional miles from Quitman, Georgia, to New Orleans.

(b) Shipment 34 was routed to plaintiff’s port agent in New Orleans on February 5, 1965 for export. In New Orleans, tbe shipment was moved to tbe commercial pier utilized by Lykes Brothers Steamship Company, where the shipment was placed on board the SS DOLLY TUBMAN in February 1965 for the ocean leg of the transportation. The shipment was ultimately delivered to the property owner in Bam-berg, Germany.

(c) On shipment 34, plaintiff billed the defendant, and was paid, $224.64 under plaintiff’s single-factor rate for the line-haul transportation from Georgia to Germany. Plaintiff now seeks additional compensation in the amount of $82 for transporting the shipment the 345 miles of additional transportation which plaintiff performed from origin in Quit-man, Georgia, to New Orleans, in excess of that which plaintiff would have performed had the shipment moved from Quitman to the Port of Jacksonville, Florida. This amount is computed by utilizing, as the measure of compensation, the mileage rate in Item 150 of MBT No. 1.

(d) On shipment 34, plaintiff also seeks compensation for the further transportation allegedly performed from the Army Terminal in New Orleans to the Lykes Brothers pier in New Orleans in the amount of $35.50, the minimum mileage diversion charge under Item 150 of MBT No. 1, plus the flat $5 diversion charge also provided for in Item 150.

82. (a) Shipment No. 36 (Emanuel M. Sharpe) was tendered to plaintiff in Denver, Colorado, in December 1964 and was consigned to the property owner in Verdun, France. Plaintiff transported the shipment, consisting of two containers, to New Orleans, where plaintiff was able to place one container on board a commercial vessel, the ARIZPA of the Waterman Steamship Corporation, for the ocean move to France. Due to a maritime strike, defendant directed plaintiff to move the second container from the Waterman commercial pier in New Orleans to the New Orleans MSTS pier, where the second container was placed on board the MSTS vessel, the MAEGABET BEOWN, for the ocean move to France.

(b) The container in shipment 36 moving via the commercial Waterman vessel, the AEIZPA, was discharged at Le Havre, France, a distance of 285 miles from Verdun, where the container was delivered by plaintiff to the property owner. The second container moving via the MSTS vessel, the MAEGAEET BEOWN, was discharged by MSTS at St. Nazaire, a distance of 390 miles from Verdun. As a result, plaintiff was required to pick the second container up at St. Nazaire, which was 105 miles farther from the destination of the shipment in Verdun than Le Havre, and to incur the additional expense of transporting this container for the additional distance.

(c) Plaintiff billed defendant, and was paid, under plaintiff’s single-factor rate for the line-haul transportation of shipment 36 from Colorado to France. Plaintiff now seeks additional compensation for the transportation performed in moving the second container from the Waterman commercial pier in New Orleans to the MSTS pier at defendant’s direction in the amount of $69.92, the minimum mileage diversion charge under Item 150 of MBT No. 1, plus the flat $5 diversion charge also provided for in Item 150.

(d) On shipment 36, plaintiff also seeks compensation in the amount of $205.43 for the 105 miles of additional land transportation which plaintiff performed in moving the second container from the MSTS port of discharge in St. Nazaire to Verdun, in excess of that which plaintiff would have performed if this container, like the first, had been discharged at Le Havre. This charge is computed by using, as the measure of compensation, plaintiff’s commercial rates applicable to overseas land transportation. MBT No. 1 does not contain rates for overseas land transportation. However, Item 150 of MBT No. 1, which contains mileage rates applicable to diversion mileages performed within the continental United States, provides that diversion mileages performed overseas “will be subject to carrier’s applicable rate.”

83. On January 18, 1965, plaintiff wrote the following ' letter to all military transportation officers in the continental United States and overseas:

Present Port Btrilie, East & Gulf Coast Ports of Ü.S.

This is to advise that TEANS OCEAN YAN SEEV-ICE hereby agrees to handle all shipments tendered that normally flow through an East or Gulf Coast Port of the U.S. in accordance with the recently published AE55-33 Kegulations.
This publication entitled “PEOCEDUEES FOE HANDLING THEOUGH - BILL - OF - LADING PIOUSEHOLD GOODS SHIPMENTS DUEING PEEIODS OF LONGSHOEEMEN AND/OE MAEI-TIME STEIKES” outlines all costs and instructions that TEANS OCEAN VAN SEEVICE agrees to.
Your consideration of our company during this period is appreciated, and our cooperation with your office is assured at all times.

84. Joint message form issue January 11, 1965, implementing Army Eegulations 55-33, designated (among other ports) New Orleans, Louisiana, as a CONUS terminal for receipt of household goods shipments, and St. Nazaire, France, as an overseas port for household goods shipments moving during the strike period.

Issue No. 19 — Warehouse Handling Performed in a Government Warehouse

85. Warehouse handling is the service of moving a shipment from the platform at the entrance of a storage warehouse to the position within the warehouse where the shipment will remain during storage-in-transit, the necessary record keeping, and the reverse movement out to the platform when the shipment is removed from storage-in-transit. Warehouse handling is always performed when a shipment is placed in storage-in-transit. Although warehouse handling occurs both when a shipment goes into the warehouse and when it moves out, the warehouse handling charge in Item 140 of MBT No. 1 applies only once each time a shipment is placed in storage-in-transit.

86. (a) Shipment No. 38 (GBL B-7205794) was a shipment belonging to Ferdinand Ferrer, which was picked up by plaintiff at Fort Leavenworth, Kansas, and was consigned to the property owner at Fort Kobbe, Canal Zone. The shipment was placed aboard the YAQUE at New Orleans by plaintiff’s agent and was consigned to plaintiff’s agent in the Canal Zone. The shipment was placed in a Government-owned storage facility at Curundu in the Canal Zone pursuant to a directive from the defendant, where it was stored for a period of 275 days. After storage, it was delivered at the defendant’s direction to the owner at Quarters 316-B, Fort Kobbe, Canal Zone. The necessary handling of the shipment into and out of the Government-owned warehouse was performed by the plaintiff’s agent.

(b) On shipment 88, plaintiff billed and was paid $610.50 on December 19, 1963, based on the single-factor rate from Kansas to the Canal Zone. On August 21,1964, plaintiff was paid $16.50 for delivery into Government storage. There is no dispute as to these charges.

(c) With respect to Issue No. 19, plaintiff is claiming on shipment 38 $8.25 as the warehouse handling charge under Item 140 of MBT No. 1.

Issue No. 21 — Transportation Performed On Shipments Left in SIT Beyond 180 Days

87. (a) On shipment No. 38 (see finding 86), plaintiff claims, inter alia, that it is entitled to compensation for transporting the shipment at defendant’s request from the Government storage facility to the property owner’s quarters at Ft. Kobbe, in the amount of $272.25. The charge for the transportation from SIT to the property owner’s quarters is based on plaintiff’s commercial transportation rates applicable between overseas points.

(b) Plaintiff billed for the line-haul charge after the shipment went into storage, and billed the charge for delivery into storage on July 24, 1964, after the shipment had moved out of storage into the owner’s residence. Plaintiff never billed for the $272.25 charge it now claims for the movement from storage to residence.

88. Item 135 of MBT No. 1 provided for a charge of $1 per cwt. for delivery to storage in Government facilities, which was in addition to the land transportation charge for delivery out of a Government storage facility when the point of delivery was beyond a 50-mile radius, for which an extra charge was assessed. Item 135 provided that when storage was in a Government facility, the destination carrier would perform delivery and unpacking service within a 50-mile radius of the point of storage, without additional charge.

89. Item 45 of MBT No. 1 was entitled “Storage-In-Transit Period” and stated that the storage-in-transit service provided in this tender would be for a period of 180 days. Storage-in-transit rates were treated in Item 140 of MBT No. 1. Pick-up and delivery of storage-in-transit shipments were treated in Item 145 of MBT No. 1. The provision (Item 135) dealing with storage in Government facilities was not entitled “Storage-in-Transit.”

Issue No. 22 — Defendants Counterclaim for Appliance Servicing

90. Item 15 of MBT No. 1 stated that the single-factor rate included servicing and unservicing of appliances, with certain exceptions. A carrier was entitled to charge an additional amount for servicing a washer if the service included more than tightening down bolts and securing permanent installed braces. A carrier was entitled to an additional charge for servicing of hi-fi, stereo, or phonograph sets which required servicing, other than securing the needle or player arm or turntable.

91. DSAR 4500.1 required that each appliance serviced be labeled to indicate that it should be serviced at destination, prior to its use, reversing the process performed at origin. Where these special services were performed, a carrier was required to execute a DD Form 619 at origin, itemizing the accessorial service performed, and, when separately charged, the carrier was required to prepare and sign the form, together with the owner of the shipment.

92. Under DSAR Regulation 4500.1, the carrier agreed to furnish the origin transportation officer, not later than 3 working days after pick-up, a copy of DD Form 619 itemizing the accessorial services performed at origin. In order to qualify for payment of appliance servicing charges, as stated in Item 115 of MBT No. 1, a carrier had to show that the servicing was performed at both origin and destination.

93. On shipment No. 6, plaintiff was paid $10 for appliance servicing. Plaintiff’s claim for appliance service was supported by a DD Form 619 executed by the plaintiff after the shipment was moved into SIT. The inventory executed at origin showed that the owner had a record player (Item 163), but there was no showing in the inventory that the service required under Item 115 was performed.

94. On shipment No. 7, plaintiff was paid $15 for appliance servicing, and its claim was supported by a properly executed DD 619 Form at origin. However, the shipment was delivered to non-temporary storage by another carrier, Bus-Van & Storage Company.

95. On shipment No. 11, plaintiff was paid $20 as an appliance servicing charge. The plaintiff’s claim for such charge was not supported by a DD 619 Form executed either at origin or at destination.

96. On shipment No. 13, plaintiff was paid $15 for appliance servicing. The statement of accessorial services performed and executed on June 16, 1964 both by plaintiff’s agent and the owner of the goods did not show any servicing of appliances. The plaintiff’s claim was supported by an accessorial certificate which showed that the data concerning the appliance servicing were typed in at a different time, and with a different typewriter, from the other items on the certificate.

97. (a) On shipment No. 19, plaintiff was paid $10 for appliance servicing. Its claim was not supported by any document showing that such service was performed, either at origin or destination.

(b) Plaintiff was paid $10 for appliance servicing on shipment No. 22, although its claim was not supported by a DD 619 Form executed at origin.

(c) Plaintiff was paid $10 for appliance servicing on shipment No. 25, although its claim was not supported by a DD 619 Form executed at origin. Form executed at destination showed the accessorial services typed in by a different typewriter.

(d) Plaintiff was paid $10 for appliance servicing on shipment No. 27, although the DO Form 619 executed by plaintiff’s agent at origin did not show any appliance servicing charges.

(e) Plaintiff was paid $15 for appliance servicing on shipment No. 36. The invoice of plaintiff’s agent for service performed at destination did not show any appliance servicing performed. The DD 619 Form executed by plaintiff’s agent at destination did not show any appliance servicing performed.

(f) The evidence does not indicate that the appliance servicing charges referred to in the preceding paragraphs of this finding were the subject of exceptions by the defendant on the audit of the respective accounts.

Issue No 23 — Defendant's Third Affirmative Defense of Estoppel

98. Plaintiff’s claims herein involved only 38 different shipments. Plaintiff has filed other suits with the court seeking recovery of alleged undercharges for approximately 11,000 shipments. These shipments covered 157 different payment stations — 69 domestic, 10 in Alaska, 8 in Hawaii, and 70 foreign. At the time of the trial, plaintiff and other household goods carriers had filed 138 petitions involving approximately 262,000 shipments.

99. Of the 38 shipments in suit, accounting adjustments were made by the General Accounting Office on only five shipments. Three of these adjustments were effected by means of deductions and two by requiring refunds. In two companion cases, Von Der Ahe Van Lines, Inc. v. United States, Ct. Cl. Nos. 250-65 and 354-65, the claimant selected 700 sample shipments; and of that number, accounting adjustments were made on less than 4 percent.

100. Where no accounting adjustment has been made by the GAO on a bill of lading and voucher, the records are sent to the closed files, and the documents are assembled for storage according to the month and year in which the charges are paid, and then numerically by the disbursing officer’s voucher number assigned to the document at the time of payment. In cases where the GAO has not made an accounting adjustment, the only way these documents can be located is through the disbursing officer’s number, which must be obtained from the payment office. However, the largest payment office has stated that, because of its workload, it is unable to furnish this information.

101. These payment records are located in 157 different places. The payment records of the domestic stations and those in Alaska and Hawaii are. transmitted to the GAO for post-audit, and the records of the foreign payments stations, with the exception of those at Tokyo, Heidelberg, Paris, London, and Madrid, are sent to the GAO for audit. Although all of these records have been requested by the GAO, very few have been obtained. The Army Finance Center which handles the bulk of the payment records has stated that, because of its workload, it is unable to comply with the request by the GAO for these records.

102. If the plaintiff and the other companies similarly situated are allowed to present all of the hundreds of thousands of claims to the court at this late stage, then the GAO will be required to do extensive and burdensome work in obtaining these records from the closed files. This would include manually processing each bill of lading, obtaining the correct voucher, preparing Xerox copies of the documents, requesting payment data from the administrative agency involved, and physically locating the documents at GSA storage centers. In order to process the records for the 262,000 bills of lading in court at the time of the trial, it would require the GAO fiscal management staff to work full-time on that project for 2 or 3 years.

103. As a result of receiving a large number of overcharge notices, plaintiff instituted an internal audit of its billings, and payments received, for services performed for defendant under MBT No. 1, and made a thorough study of the applicability of the provisions in the tender.

104. Following the audit mentioned in finding 103, plaintiff prepared and submitted to defendant supplemental billings covering alleged undercharges which had occurred under plaintiff’s interpretation of the provisions of MBT No. 1. Some of the supplemental billings were paid by the defendant and others were rejected.

105. Plaintiff continued to submit these supplemental billings to defendant in accordance with plaintiff’s interpretation of the provisions of MBT No. 1 until requested to stop doing so by the Transportation Division of the GAO. The reason for this request was that the volume of billings and protests was imposing on the Division a heavy load of paperwork which could not be processed until the validity of the charges was resolved. The GAO also requested plaintiff not to combine on one billing charges contested by the GAO with uncontested charges, since this would delay payment of charges on which there was no controversy.

106. By ceasing to file further supplemental billings on each shipment and by not repeating its protests on the same issues, plaintiff was complying with GAO’s request to avoid the resulting workload.

107. Toward the end of 1964, plaintiff had several meetings with the Military Traffic Management and Terminal Services (“MTMTS”), the successor to DTMS, regarding the disputes which had arisen over the applicability of the provisions of MBT No. 1. At one meeting with Colonel Branni-gan, Chief, Household Goods Traffic Division, MTMTS, and with Major Lloyd, Chief, Rate Negotiations Branch, Household Goods Traffic Division, plaintiff investigated the possibility of filing an exception on behalf of Trans Ocean Van Service to the provisions in MBT No. 1, as published by the Forwarders Association, which would give effect to plaintiff’s interpretation of MBT No. 1 and eliminate similar controversies on. future shipments, but was advised that all terms and conditions of MBT No. 1 had to be accepted without variation by plaintiff, or plaintiff could not participate in Department of Defense traffic.

108. Plaintiff also explored the possibility of cancelling its participation in MBT No. 1, as published by the Forwarders Association, and filing a separate tender solely for its own account, which would give effect to plaintiff’s interpretation of MBT No. 1 and eliminate future controversies. Plaintiff was advised that it could file a separate tender, but that the terms and conditions in such a tender would have to be identical with those in MBT No. 1, as published by the Forwarders Association.

Issue No. 16 — The Limitation Period

109. Shipment 32 (Carl Almquist) was delivered to the property owner at 12 Cottage Lane, Lee Hall, Fort Eustis, Virginia, on July 13, 1963. Plaintiff submitted a billing for the single-factor line-haul charge on this shipment by public voucher dated July 24,1963, and payment thereon was made by defendant on August 23, 1963. Plaintiff’s claim for additional compensation under Item 150 of MBT No. 1 for the diversion mileage from the destination specified on the Government bill of lading to the residence at 12 Cottage Lane in the amount of $25.65, and for the flat $5 diversion charge, was asserted in the first amendment to the petition herein filed February 16,1967.

110. Shipment 33 (Pablo Adamos; see finding 61) was delivered to the property owner at 173 Ann Burke Apartments, Beeville, Texas on August 17, 1963. Plaintiff submitted a billing for the single-factor line-haul charges on this shipment by public voucher dated August 30, 1963, and payment thereon was made by defendant on October 25,1963. Plaintiff’s claim for additional compensation under Item 150 of MBT No. 1 for diversion mileage from the Naval Air Auxiliary Station to the residence in Beeville in the amount of $6.56, and for the flat $5 diversion charge, was asserted in the first amendment to the petition herein filed February 16, 1967.

SHIPMENTS DIVERTED OUT’ OE SIT

111. With respect to shipment No. 6, see findings No. 47 and 54.

112. Shipment No. 12 (Phil A. Dye) originated in Kings Lynn, Norfolk, England, and was shipped to the destination designated on its bill of lading, Brooklyn Army Terminal, New York, on November 20,1963. Upon arrival in New York, the transportation officer directed that the shipment be placed in SIT. On December 20, 1963, the shipment was placed in SIT at Jersey City, New Jersey, and while in storage, the transportation officer ordered the shipment diverted to 715 South Francis Street, Picher, Oklahoma. On February 5, 1964, the shipment left SIT and was delivered a distance of 1,254 miles to its diversion destination in Oklahoma. Defendant was subsequently billed for that distance under both Item 445 and Item 150 of MBT No. 1, and was allowed compensation under Item 150.

113. Shipment No. 13 (David E. Fogle) originated at Fort Gulick, in the Canal Zone, and was shipped on February 24, 1964, to Oakland Army Terminal, California. Upon arrival in Oakland, the transportation officer directed that the shipment be placed in SIT. On May 5, 1964, the shipment was placed in SIT at Berkeley, California, and while in storage, the transportation officer ordered 'the shipment diverted to 304 North Kubidioux Street, Montebello, California. On June 12, 1964, the shipment left SIT in Berkeley and was transported to the owner’s residence in Montebello, a distance of 409 miles. Defendant was subsequently billed feu that distance under beth Item 445 and ítem 450 ef MBT Nm 4? and waas compensated under Itm 150.*

114. Shipment No. 15 (Kenneth L. Foster) originated in Brassioux Deols, Indre, France, and was shipped on June 10, 1964, to Brooklyn Army Terminal, New York. Upon arrival in New York, the transportation officer directed that the shipment be placed in SIT. On July 6,1964, the shipment was placed in SIT at Jersey City, New Jersey, and while in storage, the transportation officer ordered the shipment diverted to Tinker Air Force Base, Oklahoma, a distance of 1,451 miles. On July 10, 1964, the shipment left‘SIT and was transported to Tinker Air Force Base, and from there to the owner’s residence at 613 East Bouse, Midwest City, Oklahoma. Plaintiff subsequently billed defendant for the movement from SIT in Jersey City to Tinker Air Force Base under feeth Item 145 and Item 150 of MBT No. 1, and was allowed compensation under Item 150.

115. With respect to shipment No. 18, see finding No. 51.

116. With respect to shipment No. 31, see finding No. 42.

CONCLUSIONS OF LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover on the following claims (and other similar claims asserted in the petition), and judgment is entered to that effect; the claim for extra compensation based on the diversion of shipment No. 30 to a point within the continental United States that would not ordinarily 'be serviced through the same port of debarkation at which the shipment arrived, which claim and similar claims are to be determined by the application of the provisions of Appendix 1 of MBT 1-A; the claim for the loss of the containers used in connection with shipment No. 7; the claim for extra compensation based upon the additional land transportation involved in the movement of shipment No. 34 from the origin point to a more distant port of embarkation pursuant to the defendant’s request; the claim for transfer of shipment No. 36 between piers in New Orleans and for the additional mileage involved in moving the shipment from St. Nazaire to Verdun ; the claim for a warehouse handling charge in connection with shipment No. 38, >and the claim that plaintiff is entitled to be paid at the rates specified in Item 145 of MBT No. 1 (less amounts already paid plaintiff pursuant to Item 150 of MBT No. 1) for the deliveries of shipments Nos. 6, 12, 13, 15, 18 and 31 pursuant to diversions ordered by the defendant after such shipments had been stored in transit. The amount of the recovery will be determined in accordance with Rule 131 (e).

The court further concludes as a matter of law that the plaintiff is not entitled to recover on the following claims (or other similar claims asserted in the petition), and the petition is dismissed as to such claims: the claim for a diversion mileage charge in connection with the movement of shipment No. 20 from the Port of New York to Rochester, New York; the claim for additional compensation on shipment No. 31 to the extent that plaintiff claims anything on the ground that the shipment was diverted after it left the port of debarkation; the claim for a $5 diversion charge and a diversion mileage charge in connection with the placement of shipment No. 4 in the warehouse of the plaintiff’s agent for storage-in-transit; the claim for a $5 diversion charge and a diversion mileage charge in connection with the delivery of shipment No. 4 from the storage-in-transit warehouse to the property owner’s destination residence; the claim for a $5 diversion charge in connection with the extension of the storage-in-transit period authorized in the bill of lading covering shipment No. 18; the claim under Item 145 of Military Basic Tender No. 1 in connection with the movement of shipment No. 27 into storage-in-transit; the claim for a $5 diversion charge and a diversion mileage charge in connection with the delivery of shipment No. 33 to the property owner’s destination residence without storage-in-transit; the claim based upon the full single-factor transportation rate, without reduction, in connection with the movement of shipment No. 1 from the origin point in Georgia to the destination point in Germany; the claim based on a charge for additional land transportation in connection with shipment No. 8; and the claim based upon the plaintiff’s commercial transportation rate for the movement of shipment No. 38 from the Government-owned warehouse to the property owner’s destination residence.

The court further concludes as a matter of law that the defendant is not entitled to recover on its counterclaim for the recovery of amounts previously paid to the plaintiff in the form of appliance servicing charges with respect to shipments Nos. 6,7,11,13,19,22,25,27, and 36, and such counterclaim is dismissed.

The court also concludes that defendant’s third affirmative defense of estoppel, which has apparently been abandoned by defendant, does not bar plaintiff’s right to recover. 
      
      The court acknowledges the assistance it has received from the report of Trial Commissioner Mastín G. White. We have adopted his opinion and findings of fact on most of the issues presented in this case.
     
      
       There was Implicit in the GAO’s action a determination that the port of debarkation in California was the “normal port” for the servicing of the Blytheville Air Force Base, Arkansas, in connection with shipments moving to that point from the origin point in the Philippines of the diverted shipment. For a determination of this issue, see the discussion in this opinion under the heading, “The ‘Normal Port’ Diversion Claims.”
     
      
       Contrary to a statement In the plaintiff’s brief, this is not a situation where the defendant is asserting an offset against the plaintiff’s transportation claim and, therefore, has the burden of proof with respect to the offset. The controversy revolves around the determination of the proper transportation rate, as to which the plaintiff has the burden of proof.
     
      
       The record contains evidence concerning instances where shipments in carrier-owned containers were delivered to warehouses operated by agents of the plaintiff for non-temporary storage. Since no findings of fact concerning losses of containers in such instances were requested by the plaintiff, claims for any losses of containers in those situations are regarded as waived by the plaintiff.
     
      
       See finding 78 relative to an understanding that was reached in the fall of IS 65.
     
      
      
         Payment for the extra service is neither authorized nor precluded by Item 150 of MBT No. 1. Therefore, plaintiff’s claim is on a quantum, meruit basis,
     
      
       The plaintiff did not reguest any findings of fact on some of the issues previously said to be involved in the case. Hence, claims under the omitted Issues are regarded as waived.
     
      
       In Its reply brief, the plaintiff waived the objection which it made at the trial regarding the competency of evidence relative to suits filed by other companies similarly engaged in the business of transporting for the Defense Department household goods in containers between points in the continental United States and points overseas.
     
      
       Findings of fact on this issue are included, although the plaintiff would not be entitled to recover in any event on the claims referred to in findings 109 and 110.
     
      
       Deleted pursuant to order of the court dated October 26,1970.
     
      
      Deleted pursuant to order of the court dated October 26, 1970.
     