
    MOTOR CARGO, INC., v. THE UNITED STATES
    [No. 49626.
    Decided October 5, 1954.]
    
      
      Mr. James L. Given for plaintiff. Messrs. Turney <& Twney were on the briefs.
    
      Mr. Edward L. Metsler, with whom was Mr. Assistant Attorney, General Warren E. Burger, for defendant.
   Whitaker, Judge,

delivered the opinion of the court:

Plaintiff sues the United States for the difference in what has been paid it for the carriage of some 237 shipments of gun controls or power drives from the plant of Webster Electric Company at Eacine, Wisconsin, to the Navy at York, Pennsylvania, and Martins Ferry, Ohio, and the amount to which it claims it is entitled. The question presented in each instance is the proper classification of the articles carried.

Defendant contends that they should be classified as machinery or machines N. O. I., sometimes written noibn, or gun mount parts, for the carriage of which plaintiff would be entitled to either $46,479.99, or $47,292.53, depending upon whether they are properly classifiable as machinery or machines N. O. I., or as gun mount parts.

On the other hand, plaintiff contends that they should be classified as anti-aircraft directors, for which the tariff provides a rate of $96,456.78; or, if they are not properly classifiable as such, then it is at least entitled to the sum of $81,243.53, because this is the rate applicable to machine gun parts, and the parties had an agreement that they would be so classified and bills of lading issued accordingly.

The parties are not in serious dispute about the law of the case. They agree that a carrier is obliged to file with the Interstate Commerce Commission tariffs covering articles to be transported, and that the freight collectible is governed by these tariffs. They also agree under section 22 of the Interstate Commerce Act (24 Stat. 387, as amended), a carrier is not prohibited from carrying articles for the United States at a rate less than that provided for in its tariffs. Our problems, therefore, are, first, to determine the proper classification for these power drives or gun controls, by whichever name they are called; and, second, to determine whether there was an agreement between the parties to carry them at a lesser rate. Neither contends that the United States and the carrier could lawfully enter into a contract to carry them at a rate greater than that applicable to that classification into which they fall.

Frequently the tariffs filed with the Interstate Commerce Commission do not specifically describe the article carried, but the rule is that the classification which comes nearest to a description of the article carried determines the rate to be collected, if it can fairly be said that the article comes within that classification. Union Pacific Railroad Co. v. United States, 117 C. Cls. 757, 764; United States v. Gulf Refining Co., 268 U. S. 542, 546. Gun controls or power drives are not specifically named in any tariff filed by the carrier with the Interstate Commerce Commission.

Plaintiff’s first position is that the articles carried were anti-aircraft directors, or that they were at least in the nature of anti-aircraft directors, and should be classified as such, and that it is entitled to collect the rate applicable thereto.

An anti-aircraft director is a complicated piece of electronic equipment. It is designed to locate an airplane, to determine its speed, its distance from the ship, its direction of flight, and, in short, to ascertain and to evaluate the various factors to insure that a projectile fired from an antiaircraft gun will hit the target, that is, to insure that the projectile and the target will arrive at the same place at the same time. These factors are many. Among others, in addition to those mentioned above, they concern wind velocity, temperature of the air, ballistics of the gun, the speed and the pitch and roll of the ship, etc.

Prior to the invention of the gun control or power drive, all of this data, when determined and assimilated, was transmitted to the gun crew, which manually operated the gun in an effort to obey the directions of the anti-aircraft director. Since an aircraft moves very fast and its course is constantly changing, it has been found to be almost impossible, from the very inception of anti-aircraft fire, for a gun crew to receive and apply the data furnished by the anti-aircraft director quickly enough for the projectile to arrive at the desired place at the right time. The gun control or power drive was invented in an effort to supply instantaneous compliance with the data furnished by the antiaircraft director. Without such a device, the data ascertained and supplied by the anti-aircraft director was of but little value, however accurate that data might be.

The Navy employed the Sperry Gyroscope Company to perfect a gun control which would react instantly to the data furnished by the anti-aircraft director. What the Sperry Gyroscope Company invented has been described in the testimony by experts in this field. Their explanation is of a highly scientific nature and difficult for a layman to understand. Nor do we think it is necessary to describe it in detail; all that needs to be said for the purposes of this case is that this gun control or power drive consists of an electronic receiver for the reception of signals from the anti-aircraft director which, through a series of other electronic devices, pistons, and gears, causes the gun to move immediately to the point where the director has determined it is necessary for it to be moved in order for the projectile to arrive at the same place and at the same time the target arrives there.

When an airplane is spotted, the gun may be at a direction and elevation quite different from that necessary for the projectile to strike the target. The director determines the necessary direction and elevation. In response to the electrical signal received from the director, the gun control, or power drive, points the gun at the direction and elevation indicated by the director. After this has been done, it may still be undesirable to fire the gun. It is frequently preferable to follow the target with the gun for a more appropriate time for firing. The anti-aircraft director continues to transmit to the gun control or power drive the necessary data for the movement of the gun to coincide with the movement of the target, and the gun control continues to move it accordingly.

In this day .of tremendously high speed of airplanes, of their ability to constantly change direction and elevation, it is obviously impossible for any gun crew to follow such a target in response to the directions of the anti-aircraft director. This can only be done through the medium of an electronically controlled power drive, which acts in perfect consonance with the signals received from the director.

All of this leads us to conclude that the gun controls or power drives in question in this case were a necessary complement of the anti-aircraft director, if not a component part of it. It was not physically a component part of it, because the director was almost always located at a different part of the ship from the gun control or power drive, which was always located on the gun. The director customarily directed not only one gun, but two or more guns, in addition to searchlights. But while the gun control or power drive was not a physical part of the director, it certainly was a'necessary complement of it; that is to say, it was something necessary to have in order for the director to accomplish its purpose. Looked at in this way, we think it is fair to say that the director and gun control or power drive were each parts of the whole mechanism necessary for the direction of the anti-aircraft gun.

It can fairly be said, therefore, that a gun control or power drive comes close to the tariff classification of an anti-aircraft director. It is not a complete anti-aircraft director, but it is not inaccurate to say that it is a part of it, a necessary part, without which the data collected and assimilated by the other part is of no avail.

But the defendant says that it is properly classifiable as machinery or machines N. O. I., or gun mount parts.

It seems quite obvious to us that it is not a gun mount part. The gun mount is the thing upon which the gun rests. The gun control or power drive had nothing to do with the support of the gun. It directed the gun, but did not support it. There are many varieties of gun mounts which function entirely without an attached gun control or power drive of ■the type here involved.

Machinery or machines N. O. I., as a tariff classification, embraces a multitude of things. It would embrace a concrete mixer; it would embrace a harvester for the harvesting of wheat; it would embrace a motor; it would embrace all sorts of things that were not specifically named in the tariff. It is a catch-all expression. Of course the gun control or power drive was a piece of machinery, but this is like saying that a man is an animal. One is hardly more descriptive than the other.

Of the alternative classifications, the one contended for by the plaintiff, and the two contended for by the defendant, certainly the article in question comes much closer to the classification contended for by the plaintiff. It does not come exactly within that classification unless within it there is included anti-aircraft directors or parts thereof. It was not a complete anti-aircraft director, but it was a necessary part of one, or a necessary adjunct to it. It unquestionably directed the gun, but only in the way in which it had been told by the other part of the mechanism. In our opinion the classification that comes nearest to describing the gun control or power drive is “anti-aircraft director.”

The gun control or power drive was a new device. It was developed by the Sperry Gyroscope Company in 1942, at the request of the defendant. When defendant approached plaintiff to inquire if it was in position to handle shipments of these articles, it gave plaintiff some idea of their nature, but did not disclose to it its exact nature. The Navy was undertaking to keep secret this invention. Employees from another section of the Webster Electric Company were not permitted in the section where these gun controls were being manufactured. When they were assembled and ready for shipment, they were crated in boxes and placed in the trucks without the plaintiff’s truck driver knowing what they were.

Whatever the defendant may have told plaintiff as to the nature of them, however, led it to believe that they were electric anti-aircraft directors, because after defendant had requested it to carry these articles, it applied to the Interstate Commerce Commission for authorization to establish a freight rate on “electric directors anti-aircraft.” This application was refused because the Interstate Commerce Commission said there was already a classification of anti-aircraft directors, and, therefore, there was no necessity for a separate classification of “electric directors anti-aircraft.” It is apparent, however, that plaintiff was under the impression that these articles were just what it said they were in its application to the Interstate Commerce Commission, to wit, “electric directors anti-aircraft.”

The freight for the carriage of such articles was at the first class rate, which would have entitled plaintiff in this case to the sum above statéd, of $96,456.78. The Navy apparently was uncertain about their proper classification and wanted them carried at a lower rate; naturally they wanted them carried at the lowest agreeable rate. Since there was doubt as to their proper classification, the parties had a conference, attended by representatives of the Webster Electric Company, the carrier, the Navy, and the York Safe & Lock Company. The man representing the plaintiff at this conference was Allen Barr, its traffic manager. He died before his testimony could be taken, and plaintiff has not been able to prove by any competent testimony just what arrangement was agreed upon at this conference. Plaintiff’s Vice President, Arthur D. Shaw, testified as to what his company’s representative at the conference told him happened at it. This is probably inadmissible; but, at any rate, from what the parlies did thereafter, it seems fairly clear that an agreement must have been arrived at that the articles should be carried as “machine gun parts.” So classified, plaintiff would be entitled to collect for the shipments $81,243.58, instead of the first class rate of $96,456.78, which would be applicable if the devices were properly classifiable as anti-aircraft directors.

We say this is fairly evident because of the fact that the Navy representatives made out bills of lading on Government forms, in which they themselves classified the articles to be transported as machine gun parts, and the carrier signed the bills of lading so describing the articles, and it presented vouchers for freight based upon this classification, and these vouchers were paid by the Navy Department. It was not until after the vouchers had been audited by the General Accounting Office that they were questioned and amounts were deducted from the payments made in order to reduce the freight collectible to that applicable to machinery or machines N. O. I. Of course the General Accounting Office was not a party to this conference, and what they did gives no indication of what agreement was made at the conference.

Now it is clear that these articles could not properly be described as machine gun parts. A machine gun is a small caliber gun. The guns operated by these gun controls or power drives were 40 mm. guns. This is not a large cannon; in fact, it is nearly the smallest cannon, but it is much more in the nature of a cannon than it is in the nature of a machine gun. It lies between the machine gun and the well known 75 mm. gun. To describe these gun controls or power drives as machine gun parts was by no means accurate. It seems fairly apparent that it was a classification arrived at by an agreement for the purpose of fixing the freight charges, an agreement necessitated by the Navy’s desire to keep secret the nature of the device and by the uncertainty of the Navy as to whether or not it was properly classifiable as an antiaircraft director, and also by the desire on the part of the Navy to secure the carriage of them at the lowest agreeable rate.

When later the defendant insisted upon the carriage of these articles at the rate applicable to machinery or machines, and the plaintiff refused, it filed with the Interstate Commerce Commission a new commodity rate on “Power drive units (electrically controlled),” at second class rates, identical to those applicable to the classification “machine gun parts.” This is additional evidence of the fact that plaintiff understood the parties to have agreed at the earlier conference that the articles, whatever their classification, were to be carried at this rate.

As we said above, the fact that the Navy made out bills of lading for the carriage of the articles at this rate, and the fact that the Navy paid vouchers submitted on the basis of this rate, leaves but little doubt in our minds that this was the agreement reached.

We are of the opinion that this case falls under the provisions of section 22 of 49 U. S. C. supra, which permits a carrier to carry property for the Government free, or at rates lower than the tariff rate. We think that in the absence of this agreement, the carrier would have been justified in insisting on the rate applicable to anti-aircraft directors.

Now, it should be said, although we regard this as of secondary significance, that the American Trucking Associations’ National Classification Board, which represented trucking companies in the fixing of rates for the carriage of various commodities, inquired of the Commerce Section of the Transportation Division of the Navy Bureau of Supplies and Accounts as to the proper classification of these gun controls or power drives, and that branch of the Navy Department finally concluded on March 17, 1945, that they should be classified as machinery or machines N. O. I. It is also true that about two months later, to wit, on May 23, 1945, the American Trucking Associations’ National Classification Board advised plaintiff and the Navy that they were of the opinion that the articles should be classified as directors, anti-aircraft. It also should be said that the Consolidated Classification Committee, which recommended classifications by participating rail, water, and motor carriers, ruled that these gun controls or power drives were properly classifiable as machinery or machines N. O. I. This Committee, however, had no jurisdiction over the carriage of freight by a motor carrier only. For it to have jurisdiction, there must have been either a rail carrier or a water carrier also involved.

When this dispute arose and the Navy insisted upon the carriage of these machines at the rate applicable to machinery or machines N. O. I., plaintiff refused to accept further shipments.

The question is by no means free of difficulty, but we have arrived at the conclusion that there was justification for the claim that these articles were properly classifiable as antiaircraft directors and, since this is true, it was competent under the Interstate Commerce Act for the parties to enter into an agreement for the carriage of them at a rate lower than that applicable to such a classification, and this is what we think they did.

Looking at the situation as a whole, we think that plaintiff is equitably and legally entitled to the rate applicable to machine gun parts.

Plaintiff has been paid the sum of $81,243.53, of which, up to the time of the hearing, $34,020.36 had been recaptured by the General Accounting Office through withholdings against plaintiff’s current accounts. It is entitled to recover the amounts withheld. Judgment will be entered for the sum of $34,020.36.

Laramore, Judge; Madden, Judge; Littleton, Judge; and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner C. Murray Bernhardt, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff, an Ohio corporation, is a duly certificated common carrier by motor vehicle.

2. In 1942 the Sperry Gyroscope Company developed a device known as a “40 mm. Train and Elevation Power Drive” (hereinafter power drive), used in connection with the operation of a ship-based 40 mm. antiaircraft gun, a more detailed description of which appears in Findings 20, 21, and 22. It was manufactured by the Webster Electric Company of Racine, Wisconsin, under a subcontract with Sperry until December 1943, at which time Webster became a prime contractor with the Navy Department for its manufacture.

3. Prior to the series of shipments of power drives by plaintiff from the place of manufacture at Racine, Wisconsin, to York, Pennsylvania, and Martins Ferry, Ohio, which gave rise to this cause of action, they had been shipped by rail, which proved to be too slow to satisfy the Navy. In August 1943 plaintiff was invited to haul approximately four loads of power drives weekly from and to the same points theretofore traveled by rail. Plaintiff was the only motor carrier then available having the facilities and necessary operating authority to perform the required services.

4. There arose a question as to the proper classification for rating purposes of the power drives, which were not described by name in the freight classification. The evidence of the various steps taken by the parties in solving the classification problem prior to the first shipment by plaintiff is fragmentary. It does, however, establish that:

a. On August 26, 1943, plaintiff applied to the Interstate Commerce Commission (hereafter ICC) for special authorization to establish a motor freight rate on “electric directors, anti-aircraft,” on the ground that the then existing classification of “directors, anti-aircraft” did not specifically cover an electrically driven power drive such as in this case; and that therefore there was no rate in effect on the trafile. The application was promptly rejected by the ICC.

b. In December 1943 the parties held a conference, attended by representatives of the Webster Electric Company, the carrier, the Navy, and the York Safe & Lock Company, concerning the proper classification of the power drive, and at the conference an understanding was reached that plaintiff would carry the power drives under the classification of “machine gun parts,” although this classification was an erroneous description. The reasons for the erroneous classification are not established by the evidence.

5. The Webster plant was operated under wartime security regulations. People were not permitted to enter the plant except employees or Navy personnel, and employees from other sections of the plant were not authorized to enter the section where the power drives were being assembled. Blueprints for the power drive bore the security classification of “restricted,” which permitted disclosure of information for official purposes only. The equipment was completely concealed in packing cases before plaintiff’s truckmen were given access to it for purposes of loading. While plaintiff was not familiar with the precise nature of the power drive, the evidence does not establish that plaintiff demanded the right to inspect under the following quoted part of Rule 2, Section 2, of the National Motor Freight Classification Rules and Regulations, which applied to the shipments:

When carrier’s agent believes it necessary that the contents of packages be inspected, he will make or cause such inspection to be made, or require other sufficient evidence to determine actual character of the property. When found to be incorrectly described, freight charges must be collected according to proper description.

6. Commencing with some unestablished date no later and probably earlier than July 1944, after the December 1943 conference of the parties (Finding 4 5) and continuing partly through June 1945, plaintiff transported for the Navy Department by truck 237 shipments of power drives over the routes specified in Finding 3. Each shipment was made on a government bill of lading prepared by defendant on which the articles were described as “machine gun parts.”

7. The Navy Bureau of Supplies and Accounts, Transportation Division, was charged with the responsibility for arranging and supervising the transportation of the power drives and routing and classifying them, the latter function being assigned to the Commerce Section. The government bills of lading were actually prepared in the field by the resident inspectors of navy materiel at Racine. The bills of lading were also accompanied by vouchers which were to be forwarded to the Navy Regional Accounting Office at Washington for payment. The bills of lading provided:

ADMINISTRATIVE DIRECTIONS
* * * * *
3. When shipments are made under contract or special rates, notation of such fact should appear on the face of bills of lading.
•i» »{»
6. Bills of lading should designate the articles shipped by the carriers’ classification or tariff description, if possible, otherwise use a clear non-technical description and add departmental nomenclature if desired. State separately such weights, dimensions, and manner of packing as may be necessary to ascertain classifications and rates and to enable recovery in case of loss or damage.

There is no evidence that the bills of lading contained any notations that the shipments were made under contract or special rates. It does not appear that the problem of proper classification came to the attention of the Commerce Section of the Bureau of Supplies and Accounts until November 1944 as hereinafter appears.

8. a. The American Trucking Associations, Inc. (hereafter ATA) is an organization composed of various trucking associations. At all times material to this action it had a National Classification Board composed of three members, which Board acted on behalf of the participating motor carriers and issued non-compulsory rulings on classification.

b. In response to a request on November 16, 1944, by a member of the ATA National Classification Board, the Commerce Section of the Transportation Division, Navy Bureau of Supplies and Accounts, made an investigation (without, apparently, a visual examination of the device) and a tentative determination that the power drives should be classified as “machinery or machines, N. O. I.” (The initials “N. O. I.,” sometimes written “noibn,” which appear following many items classified in the National Motor Freight Classification No. 7, mean “Not otherwise indexed by name.”) The resident inspectors of naval materiel at Racine, Wisconsin, and York. Pennsylvania, were notified of this tentative determination on November 20, 1944.

9. Thereafter, until March 1945, the Commerce Section made further investigations as to proper classification of the power drives and, on March 17, 1945, advised the General Accounting Office, the Chief of the Bureau of Ordnance, and the resident inspectors of naval materiel that the proper classification was “machinery or machines, N. O. I.”

10. Plaintiff refused to accept shipments classified as “machinery or machines, N. O. I.”

11. An inspection of the power drives was made by plaintiff’s representative and members of the ATA National Classification Board on April 16, 1945.

Thereafter, by letter dated May 28,1945, the ATA advised plaintiff and the Navy that the power drives were classifiable as “directors, anti-aircraft”:

It will be noted that there is no qualification in the description cited as to whether it shall constitute a “remote control director” or whether it is an “electrically operated director” or “manually operated director.” Neither is there any qualification which would prevent the application of this item to such manual directors as are attached to the gun or gun mount.
It is understood that the item referred to also appears in the contemporary rail classification where it was established at the request of the War Department to cover a similar device or devices used by the Army. The directors used by the Army are portable and the requirement is made in the item for the crating of the “base and porter bars” when such parts accompany the shipment.
Further, it appears to be established that the articles inspected at York constitute an “anti-aircraft director” since it directs the gun fire either in conjunction with the remote control assembly or entirely independent thereof.
Mr. Fred Lockhart, Member, National Classification Board authorizes his concurrence in the foregoing while Mr. C. F. Jackson, Chairman, stated that he had “no objection” in the views expressed.

While the Army directors referred to in the second paragraph of the foregoing letter performed the same functions as the gun directors used by the Navy, they were structurally dissimilar. The former were of a portable type. The latter were designed for fixed installations on ships and contained features to accommodate and compensate for the roll and pitch of ships. The Army anti-aircraft directors were not comparable to the power drives for the 40 mm. gun mounts.

The opinion of the ATA was arrived at without hearings and on the basis of visual inspection and discussion with one representative of the Bureau of Supplies and Accounts.

12. After its refusal to accept shipments of the power drives billed as “machinery or machines, N. O. I.”, plaintiff, on June 12,1945, filed its Motor Freight Tariff No. 24 with the ICC establishing a new local commodity rate on “power drive units (electrically controlled)” from Racine, Wisconsin, to Martins Ferry, Ohio, and York, Pennsylvania, at second-class rates identical with those applicable to the classification “machine gun parts.” No shipments ever moved under that tariff.

13. a. The Consolidated Classification Committee established ratings, rules and regulations applicable to participating rail, water and motor carriers and freight forwarders in what were known as the Official, Southern, Western and Illinois territories. It published Consolidated Freight Classification which contained such ratings, rules and regulations as it had established. Consolidated Freight Classification No. 16 was the issue of the publication in force at times material to this action. The Consolidated Classification Committee was composed of the classification committees representing each of the four classification territories. While predominantly devoted to rail carriers, it also had as participating carriers certain intrastate motor carriers and other motor carriers that were subsidiaries of rail carriers. The Official Classification Committee had jurisdiction over the eastern geographical area where the shipments in this action occurred. R. C. Fyfe, the chairman of the Consolidated Classification Committee, was at the same time chairman of the Western Classification Committee and Agent for all lines in the latter.

b. On June 11,1945, the Commerce Section of the Transportation Division of the Navy Bureau of Supplies and Accounts requested Fyfe for a ruling on the proper classification of power drives. Fyfe informally ruled as chairman of the Western Classification Committee that the power drives were properly classified as “machinery or machines, NOIbn, Item 31890 of Consoldiated Freight Classification 16”, and advised the Navy that all territories agreed.

14. Because of plaintiff’s refusal to transport the power drives under the classification “machinery or machines, N. O. I.”, the Navy expressed eleven carloads by rail express at higher rates in order to keep up with Webster’s production.

15. Under the classification “machine gun parts” the total freight charges paid by defendant were $81,243.53. Under the description “machinery or machines, N. O. I.” the total freight charges would have been $46,479.99. Applying the latter description, the General Accounting Office reaudited the bills covering these shipments and recaptured $34,020.36 of the freight charges originally paid by making deductions from current accounts of plaintiff. At the time of the hearing an outstanding balance of $743.18 was yet to be deducted.

16. On March 1, 1950, plaintiff filed a petition requesting ' the ICG to investigate the applicability and reasonableness of the charges collected on the shipments of power drives by plaintiff, and on March 14,1950, the ICC rejected the request.

17. Plaintiff was one of the motor carriers participating in and bound by the tariff schedule known as National Motor Freight Classification No. 7 (hereafter NMFC 7), which governed either generally or specifically the classifications and rates of all articles moving in commerce by motor carriers at all times material to this action and provided rules and regulations governing the same. NMFC 7 was published by an agent for account of numerous carriers and responsibility for its publication during the years 1944 and 1945 was vested in the ATA National Classification Board. In addition to consideration of proposals to publish new or changed provisions in the classification it also was the duty of the National Classification Board to issue rulings for the guidance of carriers and shippers in applying or interpreting the classification. Rules 14 and 15 of NMFC 7 provided:

Rule 14
Seo. 1. The rating for any article not provided for, either by its specific name or embraced in an N. O. I. item, shall be the rating provided in this classification or supplements thereto for an article which, in the carrier’s judgment, is the most closely analogous. In such cases, facts must be reported to proper officer in order that the rating applied may be verified and establishment of specific provisions considered. This rule will not apply in connection with ratings or rates published in exceptions to this classification or in commodity tariffs.
$ $ $ ‡ $
Rule 15
When not specifically classified, articles which have been combined or attached to each other will be charged for at the rating for the highest classed article of the combination.

18. NMFC 7 is patterned closely after the Consolidated Freight Classification (Finding 13 a).

19. a. The object of freight classification is to accord the same rating to all articles having the same sum total of transportation characteristics, without regard for the fact that the articles embraced within any given category may be totally dissimilar in appearance or in their intended use. Broadly speaking, this is accomplished by grouping articles first in accordance with their basic transportation characteristics such as weight, value, fragility, etc., and then by sub-grouping them according to their function.

For example, although several articles might have substantially the same transportation characteristics and all might be of a mechanical nature, one might be grouped with “machinery or machines,” another with “automobile parts,” and another with “agricultural implements” in order to reflect their essential nature. The technical or commercial designation of an article does not necessarily establish its identity for purposes of freight classification. Value and weight are the two most important transportation characteristics for classification purposes.

b. The general rules of construction that all parts of a written instrument should be construed to subsist in harmony with each other and that a specific provision takes precedence over a general one also apply in interpreting a freight classification. In applying these rules the function and value of an article may be taken into consideration as an aid to identifying the article for purposes of classification.

g. It is also a rule of tariff preparation and application that if an article is embraced in more than one description, the more specific description applies, but where the descriptions are equally applicable, then the description carrying the lowest freight rate applies. In case of conflict in the tariff terms the dispute is generally resolved in favor of the shipper.

20. The power drive referred to herein is an article of Navy ordnance equipment designed for installation and use on the Navy’s 40 mm. anti-aircraft gun and, when set at the position known as “automatic control,” to operate in conjunction with a “gun director,” more popularly known as an “anti-aircraft director.” Its function when set at “automatic control” is to receive an electrical signal from the gun director and automatically to point the gun to the position called for by the director. Its function when set at “local control” is to respond to the manual direction of the operator of the gun in pointing the gun in a given direction, in which case it operates independently of the gun director. In both “local” and “automatic” positions the elevation drive elevates or depresses the gun in a vertical plane 90 degrees to the deck, while the range drive moves the gun in a horizontal plane parallel with the deck.

21. The gun director assimilates a wide variety of data which is pertinent to getting a projectile to its ultimate target. This data is calculated within the computing element of the director and a value is arrived at which is transmitted electrically to the power drive by connecting electric cables. The power drive obeys the signal from the director implicitly as to the position, speed, etc., of the target, and adjusts the position of the gun, which it controls, to comply with the position called for by the director. In the older fire control systems the gun director caused a dial on the gun mount to indicate the desired position of the gun and a man reading the dial turned the gun manually to the desired position. The power drive is a substitute for the man who read the dial and pointed the gun. The power drives in suit do not in any way direct the antiaircraft fire or track the targets independently of the director, or move the director. The power drive could be used with various types of directors, but none of its parts is interchangeable with parts of the director.

22. There are two elements of the power drive. The first is electrical, and the second, mechanical.

a. The electrical element of the power drive consists of two synchro control transformers, an amplifier, and a planetary gear system. The synchro control transformers are electrically balanced with and receive signals from a pair of corresponding synchro transmitters in the gun director. The electric impulses received from the gun director dictating the required position of the gun are affected and modified by the actual position of the gun as mechanically expressed by a rotor in the synchro control transformer. The rotor causes a reduction or augmentation of the electric impulse, and the resultant electric current so modified is then fed into the amplifier which builds it up to usable strength. The electrical equipment with which this process is accomplished includes vacuum tubes, condensers and transformers, superficially resembling the working parts of a radio or television set. The' synchro control transformer element of the power drive performs in the manner just described a somewhat elementary function of computation, one simpler than that performed by the computing elements of the gun director. In effect, it measures the difference between the desired position of the gun and its actual position, and adjusts that difference electrically.

b. In the mechanical part of the power drive the electrical output from the electronic amplifier is converted to mechanical energy which is employed to guide and direct the flow of hydraulic fluid. The mechanical components at this stage of the power drive are relatively delicate and consist of a torque motor which receives signals from the amplifier, a follow valve and booster connected to the torque motor by a gear chain (also called a pilot piston and sleeve), and a dither rod.

g. There is then employed a large electric motor and a hydraulic transmission, comprised of a hydraulic piston pump driven by the electric motor, a hydraulic motor, a replenishing gear pump, and high pressure relief and check valves. The hydraulic motor drives the gun through a gear chain which moves it to any required position.

d. In weight and volume the heavy-duty machinery of the power drive exceeds the combined weight and volume of the electrical and mechanical-instrumental stages.

23. The critical mechanical parts of the power drive were manufactured with the greatest precision then possible. This included hand finishing of many parts and hand matching of completed parts to allow for microscopic variations between supposedly matching pieces. While the power drive is an intricate mechanism, it is designed and encased so as to withstand recoil and vibration from the gun mount, and the shock of 16" guns and “near misses”. (“Near misses” is military jargon for a shell or other form of explosive which misses its target by a narrow margin but which causes a degree of concussion.)

24. The Navy is one of the principal users and developers of power drives. In addition to the electric-hydraulic type of power drive here involved, there are all electric, all hydraulic, and electro-mechanical types of power drives. The all electric power drive was the most common type.

25. a. The term “anti-aircraft director” as used in the freight classification has no precisely defined meaning. It does not appear in the official terminology of the Navy Department Bureau of Ordnance. The primary function of the antiaircraft director is to supply the predicted position of the target, using optical instruments such as range finders. The director takes the target under sight and determines its height, range, bearing, line of flight, and speed with regard for the speed, pitch, roll, and yaw of the vessel, as well as wind velocity and trajectory of the projectile.

&. Some of the smaller antiaircraft directors make their computation by moving a gyroscope and have no separate devices known as computers. These directors, however, contain synchro transmitters to transmit the predicted target position. The larger directors operate with devices known as computers, which digest the data from the director, add thereto the ballistics of the gun, and calculate and transmit the advance position of the target to the gun. The synchro transmitter in the director or computer transmits the data electrically through small electric cables to the synchro control transformers of the power drives (Finding 21).

o. The antiaircraft directors are not stationed at the same location on vessels as is the gun, and do not operate with single guns. The directors transmit their data to various places on the ship such as fire control stations, gun mounts, and searchlights. The director’s signals can automatically fire the guns as it tracks the target.

d. Although a power drive differs in appearance from a gun director and each performs a separate but correlative function in pointing an antiaircraft gun, from a freight classification standpoint there are some points of similarity. Both are encased in heavy metal housing and have a high density as packed for shipment. Both are high valued. Both contain a large number of delicate mechanical parts. Both contain matching (but not interchangeable) electronic components to a limited extent. Both are articles of ordnance equipment and both participate jointly in bringing the antiaircraft gun to bear on its intended target, although in doing so the director operates in a dominant role and the power drive in a subservient role.

e. If the power drive were properly ratable as an antiaircraft director, the applicable freight charges would total $96,456.78.

26. a. Scientific instruments, as they are listed in the tariff, are devices used inter alia for purposes of precise measurement, such, as surveyors’ transits and optical or electrical microscopes. The tariff lists as scientific instruments such items as altimeters, barometers, thermostats, gauges, micrometers, and meters.

b. If the power drive were properly ratable as a scientific instrument, the applicable freight charge would be the same as that for antiaircraft directors, or $96,456.78.

27. a. The general classification “machinery or machines, or parts named” in NMFC 7 at times material to this action included, among many other items, business or office machines such as accounting card machines, adding or computing machines, addressing, imprinting or mailing machines, bookkeeping machines, check-protecting machines and duplicating machines. It also included automatic milling machines and internal combustion engines, the latter including airplane and jet engines. The classification “machinery or machines, N. O. I.”, a catch-all subclassification in the general classification, included machines ranging in construction from delicate to crude. The evidence fails to establish the relative complexity of power drives compared to other items in the general classification carrying ratings similar to that attributed by defendant to the power drive.

b. If the power drive were properly ratable as “machinery or machines, N. O. I.”, the applicable freight charge would be $46,479.99 (Finding 15).

28. a. A gun mount is the structure that supports the gun. It is designed so as to permit variations in the direction and elevation of the gun, and to absorb the recoil of the gun when the projectile is fired. The power drive was not a part, of the gun mount.

b. The applicable freight charge for gun mount parts for the shipments made by plaintiff in this action was $47,292.53.

CONCLUSION OK LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is entitled to recover, and it is, therefore, adjudged and ordered that it recover of and from the United States the sum of thirty-four thousand twenty dollars and thirty-six cents ($34,020.36). 
      
       A common abbreviation employed in tariffs meaning “Not otherwise indexed by name.”
     
      
       Sec. 22, 49 U. S. C. provides: “Nothing in this chapter shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States.”
     
      
       The evidence does not establish plaintiff’s contention that shipment by rail often caused the power drives to be out of adjustment on arrival.
     
      
       As packed for shipment, the value of the power drives was about three times greater than the average value of plaintiff’s other freight. Because of that, plaintiff sharply Increased its normal insurance coverage per shipment to cover the values shown on the bills of lading.
     