
    READING COMPANY v. THE UNITED STATES
    [No. 98-52.
    Decided November 30, 1954]
    
      
      Mr. 'William, P. McGlure for plaintiff. Messrs. John E. McGlure, W. I. Woodcock, Jr., and A. W. Hesse, Jr. were on the briefs.
    
      Mr. John, B. Franklin, with whom was Mr. Assistant Attorney General Warren E. Bwrger, for defendant.
   Littleton, Judge,

delivered the opinion of the court:

Plaintiff brings this suit to recover $7,865.89 deducted by the defendant from bills due plaintiff. The General Accounting Office made these deductions as the result of its ruling that plaintiff, as a railway carrier, had applied incorrect tariff rates on certain shipments of Government gasoline in drums and cans from points in Texas to Marcus Hook, Pennsylvania, in 1943. Defendant has filed two counterclaims in the total amount of $1,905.40, representing further alleged overpayments of freight charges on the shipments in question.

In 1943, the original bills for payment for these shipments were rendered to defendant based on a rate of $.82 per cwt., as published in the Southwestern Lines’ Freight Tariff 133-F, Agent J. R. Peel’s I. C. C. No. 3457 (hereinafter referred to as Tariff 133-F), reduced to a rate of $.66 per cwt. by application of Petroleum Reduction Tariff P-1, Agent J. R. Peel’s I. C. C. No. 3437 (hereinafter discussed and referred to as the Tariff of Reduced Rates). No land-grant reductions were applied on freight bills rendered and these bills were paid by defendant.

Thereafter, in 1947, plaintiff, believing that it had incorrectly used the Tariff P-1 rate on shipments of gasoline in drums and cans, rendered supplemental bills in the amount of $3,059.70 covering these same shipments. This sum represents the difference between the rate of $.66 per cwt., as originally paid, and the $.82 rate provided by Tariff 133-F reduced by only the land-grant reduction, plaintiff contending that it was in error in 1943, in applying the P-1 Tariff of Reduced Rates. The General Accounting Office refused payment of all but one of these supplemental bills and made claims on plaintiff for a refund of alleged overpayments of $7,865.89 on the ground the land-grant reduction should have been applied to the $.66 per cwt. figure contained in the original 1943 bills. Upon plaintiff’s refusal to refund this sum, it was subsequently deducted and withheld from current bills due plaintiff.

The parties have stipulated that $7,865.89 is the amount due plaintiff if its position that the proper tariff rate was $.82 reduced to $.68 for land-grant reductions, is sustained. This figure of $7,865.89 so agreed to represents the difference between the $.66 received by plaintiff on the bills in question and $.55 (approximate) which is the Tariff of Reduced Rates figure ($.66) minus the land-grant reduction which defendant alleges should have been applied in the 1943 bills.

Plaintiff, while conceding that a land-grant reduction is applicable, takes the position that the proper rate for the shipments of gasoline in drums and cans is $.82 as provided in Tariff 133-F reduced to $.68385 by the land-grant reduction rate. Thus, plaintiff alleges the General Accounting Office acted incorrectly and underpaid it when, in 1947, it applied the land-grant reduction to the erroneous $.66 rate. The plaintiff agrees to limit its recovery to $7,865.89 in addition to the amount finally paid to it by defendant.

Defendant’s position is that the lower figure of $.66 reduced by the land-grant reduction is the correct tariff rate for the shipments in question.

The basic tariff in effect at the time the Tariff of Deduced Eates No. P-1 was issued was Southwestern Lines’ Tariff No. 133-E. Tariff 133-F, issued November 25, 1941, canceled Tariff 133-E, became effective January 4, 1942, and was in effect at the time of these shipments. Tariff 133-F is the base tariff for our purpose here. It, like 133-E, provided for a basic freight rate of $.82 per cwt. on the shipments of gasoline in either tank cars or drums over the routes involved (finding 17). Item 5 of this tariff, under the heading “Application of Tariff of Deduced Eates No. P-1,” reads as follows:

Except as otherwise provided under Exception shown below, rates published in this Tariff, as amended, on Petroleum Products, as described in Tariff of Deduced Eates referred to in this item, are hereby reduced as provided in Tariff of Deduced Eates No. P-1, Agents J. E. Peel’s I. C. C. No. 3437, L. E. Kipp’s I. C. (1 No. A-3352. (Fourth Section Order 14373 of September 9, 1941).
exception — Eule 4 of Tariff of Deduced Eates No. P-1, J. R. Peel’s I. C. C. No. 3437, L. E. Kipp’s I. C. C. No. A-3352, will not apply in connection with rates to Brunswick, Me., on traffic destined to points in the States of Maine, nor to Charlestown, N. H., on traffic destined to Springfield, Vt., nor to Barre, Vt., on traffic destined to points on the Barre and Chelsea EECo.

The Tariff of Eeduced Eates was issued in the fall of 1941, effective September 15,1941, as part of a program on the part of the Government to relieve a serious shortage of petroleum products in the Eastern States, which shortage existed because a number of tankers engaged in transporting petroleum from the Texas Gulf Ports to the North Atlantic Ports had been transferred by the President to the British Government to replace British tankers lost by enemy action. The oil companies were requested by the Petroleum Coordinator for National Defense to utilize all available railway tank cars for the purpose of transporting petroleum into the Eastern States. At the same time H. A. Gilbert, Chief of Transportation in the Office of the Petroleum Coordinator, informed representatives of the railroads that it would be necessary for them to transport substantial quantities of petroleum products into the shortage areas, and through Gilbert the railroads were requested to provide reduced rates for these shipments. Early in September of that year the railroads filed with the Interstate Commerce Commission applications for authority to establish reduced rates for shipments in the shortage areas, and on September 9, 1941, the Interstate Commerce Commission issued orders granting this authority. These were followed on September 11, by the issuance of the Tariff of Reduced Bates. This tariff was designated as follows:

TARIFF OF REDUCED RATES
NO. P-1
ON
PETROLEUM PRODUCTS, CARLOADS
IN TANK CARS
The application section of the tariff read as follows:
APPLICATION
(See Note 1)
Class and Commodity Bates on petroleum products, viz : Benzine;
Fuel Oil, residual or distillate, not suitable for illuminating purposes;
Gas Oil;
Gasoline, Casinghead;
Gasoline, Natural;
Gasoline, not otherwise indexed by name in the governing Classification;
Gasolines, Blended, consisting of motor fuels containing 50 percent or more of gasoline;
Kerosene;
Naphtha;
Naphtha Distillate;
Refined Oil, illuminating or burning;
Carloads, in tank cars; * * * (Italics supplied).

Thereafter various supplements to this tariff were issued, but their content insofar as they are pertinent here remained the same through the first six supplements. Supplement 7, however, while containing the above designation on its title page, “Petroleum Products, Carloads in Tank Cars,” added after the phrase “in Tank Cars,” the following:

(Except as otherwise provided in Rules 6 and 7 herein.) Rules 6 and 7 provided that rates in the tariff which were to apply to certain specified petroleum products when transported in tank cars were likewise to apply when those same products were shipped in drums (Rule 6), or in containers in or on container cars (Rule 7). The products designated in these two rules were ones that appeared in the application section of the tariff. Gasoline toas not included in the products listed in Rules 6 and 7.

It is plaintiff’s contention that in determining the applicability of the Tariff of Reduced Rates, it is the language of that tariff which must be applied, and that when this is done it is clear that the tariff and reduced rate were intended to apply to shipments of gasoline only when transported in tank cars. Plaintiff further asserts that the events surrounding the issuance of the tariff together with the Interstate Commerce Commission orders and the subsequent amendment of the tariff (Supplement 7) resolve any ambiguity that might exist in favor of this construction. On the record we agree with plaintiff’s position.

Defendant’s principal contention is that in determining to which shipments the rate in the Tariff of Reduced Rates No. P-1 applies one must look first to Item No. 5 of Tariff 183-F. In support of this contention defendant asserts that if it had been the intention of the carriers publishing Tariff 133-F to restrict the application of the reduced rates provided in the Tariff of Reduced Rates No. P-1 so as not to apply to gasoline “in packages,” such, intention could easily have been accomplished by the use of appropriate language in Item No. 5. Defendant also urges that the use of the phrase “in tank cars” as it appears in the Tariff of Eeduced Rates is not part of the commodity description but is a designation of a shipping form, and that the reference to the Tariff of Reduced Rates is solely for the purpose of commodity description, with the packaging requirements to be governed by the base tariff, Tariff 133-F, which covered gasoline whether shipped in tank cars or other containers.

Defendant also contends that at the very least the omission of any such restriction from Item No. 5 creates an ambiguity in the application of the reduced rates which ambiguity should be resolved against the plaintiff, as the carrier, and in favor of the defendant, as the shipper.

Finally, defendant resists recovery by plaintiff on the premise that plaintiff is now estopped from seeking the higher rate, having originally billed and accepted payment at the lower rate.

The issue presented is whether or not the Tariff of Reduced Rates applies to the shipment of gasoline in containers other than tank cars. We believe that it does not. Item No. 5 of Tariff 133-F provided for the application of a reduced rate “on Petroleum Products, as described in Tariff of Reduced Rates.” Gasoline in drums or cans was not so described and we hold that the defendant is not entitled to the lower rate on the shipments in question.

The events surrounding the issuance of the tariff (finding 12), which we find to be material here since those events were instigated by and participated in by the defendant, show quite clearly that the problem at hand was one of transporting petroleum products in large quantities, i. e. in tank cars, to the shortage areas. There is nothing present in either the negotiations which preceded the issuance of the Tariff of Reduced Rates, the Interstate Commerce Commission orders (finding 13), or the tariff itself, which supports the belief that gasoline other than in tank cars was to be covered. Both the title page of the tariff as originally issued in 1941 and the supplements to it contain throughout the phrase “in tank cars.” Such a limiting phrase appears as well in the application section of the tariff. This construction is supported by the issuance of Supplement 7 and the Interstate Commerce Commission order which preceded it when it was specifically amended to include certain petrol&mn •products, other them gasoline, when transported in drums or other containers (finding 16). If defendant’s position is correct then this amendment was a useless act since the products mentioned in the amendment were already listed in the application section of the tariff as issued in 1941 and in the supplements which followed (findings 15 and 16). The need for such an amendment is likewise contrary to defendant’s assertion that the phrase “in tank cars,” as it appears in the tariff, is not part of the commodity description or that Tariff 133-F must be referred to in determining the packaging requirements.

In support of these latter assertions defendant relies on several decisions by the Interstate Commerce Commission. Those decisions, however, appear to rule that resort is made to the base tariff only where the exception, such as the Tariff of Reduced Rates, is incomplete in its description. We have not found this to be the case here.

Nor is plaintiff barred on the theory of estoppel. Because of the public interest involved this doctrine does not ordinarily apply as against a carrier’s right to collect the lawful rate. Hughes Transportation, Inc. v. United States, 128 C. Cls. 221, 258-259, and cases there cited.

On the facts of this case the scales are not so evenly balanced that defendant’s position can be sustained by applying the general rule that any ambiguity in a tariff is to be resolved against the carrier and in favor of the shipper. Nor does the situation here call for the application of that rule even if this were so. Here, unlike the cases which have applied that rule, the shipper (defendant) was much more than a party to the negotiations which led to the issuance of the Tariff of Reduced Rates. That tariff was instituted at its request as a result of its decision that some arrangement should be made to relieve a petroleum shortage in the Eastern States.

Judgment is entered for plaintiff in the sum of $7,865.89, and defendant’s counterclaims are dismissed.

It is so ordered.

LaRamoee, Judge; Madden, Judge; WhitakeR, Judge; and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court having considered the evidence, the briefs and argument of counsel, and the report of Commissioner Wilson Cowen, makes the following findings of fact:

1. Plaintiff is a corporation duly organized and existing under the laws of the State of Pennsylvania with principal offices at Eeading Terminal, Philadelphia 1, Pennsylvania. Plaintiff is engaged as a common carrier by railroad in the transportation of persons and property for hire in interstate commerce over its lines in participation with other common carriers.

2. During 1943, plaintiff, in conjunction with other common carriers and at the request of proper officials of the United States Government, transported under Government bills of lading gasoline in 55-gallon drums and in 5-gallon blitz cans from points in Texas to Marcus Hook, Pennsylvania.

3. On various dates during 1943, the original bills for payment of these shipments were rendered to the defendant by the plaintiff. These bills were based on a rate of $.82 per Cwt., as published in Southwestern Lines’ Freight Tariff 133-F, Agent J. E. Peel’s I. C. C. No. 3457, reduced to a rate of $.66 per cwt. by application of Petroleum Reduction Tariff P-1, Agent J. E. Peel’s I. C. C. No. 3437, except bill No. 40116, which was based on the rate of $.82 per cwt. as to six shipments and the rate of $.66 per cwt. as to two shipments. With respect to some of the bills, the rate was further reduced to the land-grant rate of $.61211 per cwt., as indicated in Exhibit A of the Petition. These bills aggregating $60,-691.56 were paid by the defendant. Subsequently an additional amount of $36.25 was paid by the defendant on plaintiff’s bill No. 40116-A, thus making the total payment by the defendant $60,727.81.

4. Thereafter, on or about April 3, 1947, plaintiff duly rendered supplemental bills to the defendant for additional charges of $3,059.70 representing the difference between the rates as originally paid and the $.82 per cwt. rate, reduced to the land-grant rate, under the terms of Southwestern Lines’ Freight Tariff 133-F, Agent J. R. Peel’s I. C. C. No. 3457.

5. The General Accounting Office, except as to supplemental bill No. 40116-A for $36.25, which was certified for allowance by General Accounting Office Certificate of Settlement No. 483186, dated November 13,1950, refused to approve the payment of the supplemental bills and made claims on the plaintiff for a refund of alleged overpayments of $7,-865.89 by reason of a reduction to the land-grant rate of $.55141 per cwt. on all bills except No. 40116 where there was a reduction from the $.82 rate there charged and paid to a land-grant rate of $.67863 per cwt.

6. Upon receipt of the defendant’s request for refund, plaintiff denied that the $.66 per cwt. rate was applicable but claimed that the $.82 per cwt. rate should be reduced by reason of the land grant to a net rate of $.68385 per cwt.

7. Thereafter, the General Accounting Office deducted a total of $7,865.89 from current bills which represented the difference between the rate the defendant had previously paid plaintiff and the $.55141 per cwt. rate, except as to bill No. 38937, in connection with which no deduction was made, and bill No. 40116 where the difference was between the rate of $.82 per cwt., and the $.67863 per cwt. rate.

8. The plaintiff duly filed supplemental claims covering the amounts totaling $7,865.89, which had been deducted by the General Accounting Office.

9. The plaintiff’s claim in this case is based upon the theory that the proper rate to be used is the $.82 per cwt. rate as set forth in Southwestern Lines’ Freight Tariff 133-F, Agent J. K. Peel’s I. O. C. No. 3457, reduced to the proper land-grant rate of $.68385. The defendant, however, contends that the shipments were subject to Petroleum Reduction Tariff P-1, Agent J. E. Peel’s I. C. C. No. 3437, and therefore the proper rate is the $.66 per cwt. rate set forth therein, reduced to the proper land-grant rate of $.54859 per cwt.

10. The parties have agreed that if the court should find that the shipments were not subject to the application of Petroleum Eeduction Tariff P-1, Agent J. E. Peel’s I. C. C. No. 3437, then the action of the General Accounting Office was improper in making the deductions in question and the plaintiff is entitled to recover $7,865.89, the total amount of the deduction so made. In the event of such a finding, the defendant’s counterclaim shall fail in its entirety.

11. The parties have also agreed that if the shipments herein involved were subject to the rates as reduced by Petroleum Reduction Tariff P-1, Agent J. R. Peel’s I. C. C. No. 3487, then the action of the General Accounting Office was proper and the deductions in question were properly made. Furthermore, it is agreed by the parties hereto that if such a finding is made, plaintiff will be indebted to the defendant in the amount of $1,905.40, which by agreement of the parties is the amount of defendant’s counterclaim.

12. During the late Summer of 1941, there was a serious shortage of petroleum products in the Atlantic Coast States from Florida to Maine, because a number of tankers, which had been used to transport petroleum products (principally gasoline from Texas Gulf Ports to North Atlantic Ports), had been transferred by the President to the British Government to take the place of British tankers that had been lost by enemy action. To meet this emergency, the Petroleum Coordinator for National Defense called in representatives of the principal East Coast oil companies and received from them a pledge to utilize all available railway tank cars for the purpose of transporting petroleum into the areas where the shortage existed. In addition, H. A. Gilbert, Chief of Transportation in the Office of the Petroleum Coordinator, met with representatives of railroads and informed them that it would be necessary for the railroads to transport substantial quantities of petroleum products, both crude and refined, into the states affected by the transfer of the tankers. Mr. Gilbert requested the rail carriers to provide reduced rates for the movement of petroleum products from certain states, including Texas, to the Atlantic Coast States, including Pennsylvania. He stated that the reduced rates should and would be confined to petroleum products shipped in carloads in tank cars.

Following the meetings, the Petroleum Coordinator for National Defense issued a press release explaining the measures that had been taken to deal with the emergency. One of the documents attached to the release was a statement signed by C. F. Dowd, Chairman of the Subcommittee on Tank Cars, a committee appointed by the Petroleum Coordinator. The document, which was entitled “Emergency rail rates on crude petroleum and its products in tank cars,” described the commodities to be affected by the reduced rates as follows:

(a) Petroleum crude oil, fuel oil and gas oil in tank cars as described in Consolidated Freight Classification.
(b) Other petroleum products in tank cars as described in Consolidated Freight Classification.
From: All points outside District No. 1, which comprises the following 17 States: Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, West Virginia, North Carolina, South Carolina, Georgia, Florida, but not West of the Western boundary of the states of Montana, Wyoming, Colorado and New Mexico.
To: Points in the 17 States mentioned above known as District No. 1.

13. At the meeting with Mr. Gilbert, representatives of the railroads agreed that they would, and thereafter on September 8, 1941 they did, file with the Interstate Commerce Commission applications for authority to establish and maintain reduced freight rates for the shipment of petroleum products in tank cars to the Atlantic Coast States. Such authority was granted by the Interstate Commerce Commission, which on Sepember 9, 1941, issued the following statement in explanation of its orders made pursuant to the application of the carriers:

Reduced Rates on Crude, Fuel, and Re-fined Petroleum
Division 2 of the Interstate Commerce Commission, Eursuant to applications filed by the principal railroads, as today authorized the following:
(1) Relief from the long-and-short-haul and aggregate-of-intermediates provisions of Section 4 of the Interstate Commerce Act.
(2) Relief from the 30-day notice publication requirement of Section 6 of the Act and from Tariff Rules.
To permit the publication by short-cut methods on not less than one day’s notice of reduced rates on crude, fuel, and refined petroleum as indicated below, without observing such rates as maxima at intermediate points and without affecting rates from other origins or to other destinations as the result of combinations lower than existing through rates.
The proposed rates are to apply to destinations in 18 States lying along the Atlantic Coast from Maine to Florida, including all States directly bordering on the Atlantic Ocean and Vermont, West Virginia and the District of Columbia from origins in 24 States lying immediately west of the 18 destination States.
The bases for the proposed rates are as follows:
(a) On crude petroleum, 13 percent of the applicable first-class rate from and to the same points, applicable only on shipments in tank cars, minimum weight, the gallonage capacity of the tank car, using an estimated weight of 7.4 pounds per gallon. Although this basis is authorized generally, it is understood that there will be no general publication but that individual rates will be published from time to time as need arises.
(b) On refined petroleum, including gasoline but not lubricating oils and greases or liquefied petroleum gases, 25 percent reduction in the existing normal rate. Where depressed rates to meet motor, water or pipeline competition are now in effect, such rates will not be reduced unless the 25 percent reduction applied to the normal rates results in lower charges. The rates are to apply only on shipments in tank cars, minimum weight, the gallonage capacity of the tank car, using an estimated weight of 6.6 pounds per gallon.
(c) On fuel oil the same as on refined oil except that the estimated weight to be used is 7.4 pounds per gallon.
In issuing the permissive orders indicated, permitting prompt establishment of rates on the bases approved by the Coordinator for Petroleum, the railroads and representatives of the principal oil companies to relieve shortage in the Atlantic Seaboard territory due primarily to diversion of tank vessels as a result of governmental action, Division 2 has imposed no circuity limitations or minimum earnings but has provided that the relief will expire with June 30, 1942, unless previously extended. It recognizes that difficulties may arise as a result of the different amount of reduction on crude as compared with refined and fuel oils, from the selection of 18 States to the exclusion of others and from possible use of excessive or wasteful routes either by carriers to obtain a long haul for themselves or by shippers to obtain larger mileage allowances for the use of tank cars. If difficulties of the nature indicated arise to an extent warranting such action, the Division may reconsider the grants of relief, or may recommend to the Commission the entry of emergency service orders as to routing to avoid wasteful transportation or other appropriate action to meet such difficulties as may arise.
The Fourth Section Order is No. 14373 and the Sixth Section Order is No. 4280.
G. W. Laird,
Acting Secretary.

The applications of the carriers and the orders issued by the Interstate Commerce Commission limited the application of the reduced rates to the shipment of petroleum products in tank cars.

14. The tariff setting forth the reduced rates, Agent J. R. Peel’s I. C. C. No. 3437, was issued September 11, 1941, to become effective September 15, 1941. On the title page thereof the tariff was designated as:

TARIFF OF REDUCED RATES NO. P-1 ON PETROLEUM PRODUCTS, CARLOADS IN TANK CARS

15. On page 2 thereof, the Tariff of Reduced Rates read in pertinent part as follows :

APPLICATION
(See Note 1)
Class and Commodity Rates on petroleum products, viz : Benzine;
Fuel Oil, residual or distillate, not suitable for illuminating purposes;
Gas Oil;
Gasoline, Casinghead;
Gasoline, Natural;
Gasoline, not otherwise indexed by name in the governing Classification;
Gasolines, Blended, consisting of motor fuels containing 50 percent or more of gasoline;
Kerosene;
Naphtha;
Naphtha Distillate:
Refined Oil, illuminating or burning;
Carloads, in tank cars;

16. From time to time, after September 11, 1941, various supplements to the Tariff of Reduced Rates were issued. On the title pages of Supplements 1 to 6, inclusive, the tariff was entitled “Tariff of Reduced Rates on Petroleum Products, Carloads, in Tank Cars.”

On January 21, 1943, the Interstate Commerce Commission, upon the application of the carriers, issued its Supplemental Fourth Section Order No. 14373, which provided in pertinent part as follows:

It is ordered, That fourth-section order No. 14373 entered September 9, 1941, in fourth-section applications Nos. 19279 and 19280, as modified and amended by supplemental orders entered therein from time to time, be, and it is hereby, further modified and amended so as to provide that the same measure of relief from the long- and-short-haul and aggregate-of-intermediates provisions of section 4 of the Interstate Commerce Act as is authorized therein in connection with rates on fuel oil distillate not suitable for illuminating purposes, kerosene, and burning oil, in tank-car loads, from and to points in the territories described in applications 19279 and 19280, and set forth in the appendix to the order, shall also apply, subject to the same terms and conditions to rates of the same amounts when applied to the transportation of the same commodities when shipped in drums (conforming to Consolidated Classification Rule 40, section 5), in box cars, minimum weight 70,000 pounds, and in containers on container cars, carload minimum weight 8,500 gallons, from and to the same points.

Thereafter, Supplement No. 7 to the Tariff of Reduced Rates, which became effective January 23, 1943, was issued. On the title page thereof, it was described as a “Tariff of Reduced Rates, No. P-1, on Petroleum Products, Carloads, in Tank Cars (Except as otherwise provided in Rules 6 and 7 herein)”. Rules 6 and 7 on page 2 of said Supplement No. 7 provided as follows:

rule 6. — RATES AND MINIMUM WEIGHT ON FUEL OIL DISTILLATE, REFINED OIL, BURNING (NOT ILLUMINATING) OR KEROSENE, IN DRUMS.
Rates provided in tariff, as amended, on Fuel Oil Distillate not suitable for illuminating purposes, in tank cars, Kerosene, in tank cars, Refined Oil, burning (not illuminating), in tank cars, will also apply on said commodities, in drums in box cars, carload minimum weight 70,000 pounds; drums to conform to provisions of Section 5, Eule 40, of Consolidated Freight Classification, I. C. C.-O. C. No. 59,1. C. C. No. 88,1. C. C. No. 28 and I. C. C. No. 529, issued by A. H. Greenly, E. H. Dulaney, E. C. Fyfe, Agents, and W. S. Mercer, Alternate Agent, respectively, supplements thereto or successive issues thereof.
eule 7. — rates on puel oil distillate, repined oil, BURNING (NOT ILLUMINATING) OR KEROSENE, IN CONTAINERS IN OR ON CONTAINER CARS.
Eates provided in tariff, as amended, on Fuel Oil Distillate not suitable for illuminating purposes, in tank cars, Kerosene, in tank cars, Eefined Oil, burning (not illuminating), in tank cars, will also apply on said commodities when shipped in containers in or on container cars, carload minimum weight 8500 gallons.

A container car is a railroad car with low sides. It usually carries six or eight metal containers which are lifted on and off the car by a crane or similar device.

As stated in Finding 2, the commodities involved in this action consisted of gasoline shipped in 55-gallon drums and in 5-gallon blitz cans. Gasoline is not included in the commodities described in Eules 6 and 7 of Supplement 7 to the Tariff of Eeduced Eates.

Supplements 9 and 10 to the Tariff of Eeduced Eates, which supplements were issued in 1943, describe the tariff as a “Tariff of Eeduced Eates on Petroleum Products, Carloads in Tank Cars (Except as otherwise provided in Eules 6 and 7 of tariff herein, as amended.) ”

17. The basic tariff, which was in effect at the time the Tariff of Eeduced Eates was issued, was Southwestern Lines’ Tariff No. 133-E, Agent J. E. Peel’s I. C. C. No. 2707. It provided for local and joint commodity rates in cents per one hundred pounds for the transportation by rail of petroleum and petroleum products from designated Southwestern States, including Texas, to a group of States, including Pennsylvania.

On November 25,1941, Tariff No. 133-F, Agent J. E. Peel’s I. C. C. No. 3457, was issued, to become effective January 4, 1942. It canceled Tariff No. 133-E and was in effect at the time the shipments in issue moved. Tariff 133-F in Section 1 thereof provided for a basic rate of $.82 per hundred pounds for shipment on the routes involved here of “Petroleum or Petroleum Products, including Compounded Oils or Greases having a Petroleum Base * * * in packages, in straight or mixed carloads, minimum weight, 26,000 Pounds * * *, or in tank cars, * *

The word “packages” includes drums.

The Tariff of Reduced Rates and the supplements thereto contained on their title pages a special notice which stated:

This Tariff Is Applicable Only In Connection With Tariffs Making Specific Reference To This Tariff And To The Extent Indicated In Such Tariff or Supplement.

Likewise, Note 1 on page 2 of the Tariff of Reduced Rates provided:

Reductions published herein will apply to rates named M tariffs and supplements issued subsequent to this tariff, to the extent that may be provided in such subsequent tariffs and supplements effective on date provided therein.

Item No. 5 of Tariff 133-F, which became effective January 4,1942, provided, under the heading “Application of Tariff of Reduced Rates No. P-1,” as follows:

Except as otherwise provided under Exception shown below, rates published in this Tariff, as amended, on Petroleum Products, as described in Tariff of Reduced Rates referred to in this item, are hereby reduced as provided in Tariff of Reduced Rates No. P-1, Agents J. R. Peel’s I. C. C. No. 3437, L. E. Kipp’s I. C. C. No. A-3352. (Fourth Section Order 14373 of September 9,1941.)
exception — Rule 4 of Tariff of Reduced Rates No. P-1, J. R. Peel’s I. C. C. No. 3437, L. E. Kipp’s I. C. C. No. A-3352, will not apply in connection with rates to Brunswick, Me., on traffic destined to points in the State of Maine, nor to Charlestown, N. H., on traffic destined to Springfield, Vt., nor to Barre, Vt., on traffic destined to points on the Barre and Chelsea RRCo.

18. Plaintiff contends that the Tariff of Reduced Rates applied to the transportation of gasoline only when it was shipped in tank cars. On the basis of the facts set forth in the preceding finding, defendant contends that the Tariff of Reduced Rates applied to the shipments in issue, which consisted of gasoline in 55-gallon drums and in 5-gallon cans.

19. The application of the Tariff of Reduced Rates to the $.82 rate specified in Tariff 1S3-F produces a rate of $.62 per cwt. During the period involved here, there was a general increase of six percent in all freight rates, and if the $.62 rate was applicable, it was thereby increased to $.66 per cwt. Both parties agree that land-grant rates applied, and their applications to the $.66 rate results in a net rate of $.54859 per cwt.

CONCLUSION OF 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 seven thousand eight hundred sixty-five dollars and eighty-nine cents ($7,865.89).  