320 F.2d 191 (9th Cir. 1963), 17607, United States v. Francis

Docket Nº:17607.
Citation:320 F.2d 191
Party Name:UNITED STATES of America, Appellant, v. Jess E. FRANCIS, Appellee.
Case Date:June 28, 1963
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 191

320 F.2d 191 (9th Cir. 1963)

UNITED STATES of America, Appellant,


Jess E. FRANCIS, Appellee.

No. 17607.

United States Court of Appeals, Ninth Circuit.

June 28, 1963

Page 192

William H. Orrick, Jr., Asst. Atty. Gen., Francis C. Whelan, U.S. Atty., Alan S. Rosenthal and Sherman L. Cohn, Department of Justice, Washington, D.C., for appellant.

Silver & Cole, Bertram S. Silver and William L. Cole, San Francisco, Cal., for appellee.

Before BARNES, JERTBERG and BROWNING, Circuit Judges.

Page 193

BARNES, Circuit Judge.

This is an action in which the United States (appellant) seeks restitution under Section 322 of the Transportation Act of 1940, 29 U.S.C. § 66, for overpayments allegedly made by it on twenty-seven charges rendered by appellee, operating as the Continental Freight Lines.

The district court, having jurisdiction under 28 U.S.C. § 1345, on April 28, 1961 entered judgment holding for appellant on twelve of the twenty-seven asserted overpayments, and for appellee carrier on the remaining fifteen; nine of these remaining fifteen are the basis of this appeal.

This court has jurisdiction on appeal. 28 U.S.C. § 1291.

The shipments that relate to the nine asserted overpayments which are the basis of this appeal were transported during the period November 16, 1953 through March 30, 1954. All of these shipments were transported between points solely within the State of California.

All of these were transported on government bills of lading. This form of bill of lading contained, among other things, a section for the description of the articles transported. The printed instructions given on the bill of lading relative to such description were 'Use carriers' classification for tariff description if possible, otherwise a clear nontechnical description.'

During the period in question, appellee had filed rates with appellant as a party to the T.A.L. Loretz U.S. Government Rate Quotation No. 1 (Loretz Quotation). This quotation is limited to shipments for the United States Government and is prepared in the form of a motor carrier tariff.

The Loretz Quotation incorporates by reference within its provisions 'Western Classification No. 75.' This document constitutes a compilation of most known commodities and the classification (i.e., First Class, Second Class, etc.) into which each commodity has been placed. The Western Classification No. 75 is published as a part of the Consolidated Freight Classification No. 20. The Western Classification also sets forth various rules concerning tariff applications.

Appellant cites as error that portion of the district court's Finding II applicable to Items 5, 6, 7, 8a, 9 and 10; also, that portion of Finding III applicable to Items 11 and 11a; and, all of Conclusion of Law IV.

Findings II and III state:


'With reference to Items 4, 4a, 5, 6, 7, 8, 8a, 9 and 10, as listed in Column A of the attached Appendix, the rate charged in the Bill of Lading was agreed on by the United States through its Transportation Officer acting in the course and within the scope of his official duty and authority.


'With reference to Items 11, 11a and 17, as listed in the attached Appendix, the Bill of Lading on its face demonstrated a request for exclusive use.'

Conclusion of Law IV states:

'Where intra-state freight is transported by a non-certificated carrier, which does not have a published tariff, a price posted on the Bill of Lading by the United States is a valid offer which if accepted becomes contractually binding on the United States.'

The shipments in question fall into three different categories, which are herein described as Groups I, II and II.


The first group, consisting of five shipments (Items 5, 6, 7, 9, 10), involves alleged overcharges resulting from an alleged misdescription of the commodity transported. These shipments all involved the same commodity, the same point of origin, Camp Irwin, California, and the same point of destination, Herlong, California.

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Appellee argues that the commodity transported consisted of pieces of brass that had been compressed together into rectangular bales and which were being sent to Herlong to be remelted. Appellant maintains that the brass articles that were compressed together into bales were expended cartridge cases.

The description placed by appellant's agents on the bills of lading covering these shipments is the same in each instance. It reads: 'SCRAP NOIBN (not otherwise indexed by name), HAVING USE FOR RESMELTING, NMFC #11 (National Motor Freight Classification No. 11) ITEM #13850.'

The appropriate item in the Western Classification (which is the applicable classification, since it is the one incorporated into the Loretz Quotation) is Item No. 6435 and reads:

'6435 Scrap, noibn (scraps or waste pieces or bent, broken, crushed or worn out articles or used wire, having value for remelting purposes only), loose (LCL only if weighing each 50 lbs. or over) or in packages.'

The scrap brass item in both the Western Classification and the National Motor Freight Classification was classified as fifth class; the applicable fifth class rate from Camp Irwin to Herlong during this period of time as set forth in the Loretz Quotation was ninety-seven cents per hundred weight. This is the rate that appellee assessed. There is no controversy that if the article was properly described on the bill of lading as scrap brass the ninety-seven cent rate is proper.

During this period of time there was set forth in the Loretz Quotation a commodity rate of seventy cents per hundred weight from Camp Irwin to Herlong on the commodity 'cartridge cases, empty, returned.' Appellant maintains that the commodity transported should have been described as 'cartridge cases, empty, returned' and rated at the seventy cent rate.

The district court held that appellee had correctly described this group of shipments, and that the charges made therefor were proper, as indicated in Finding II and Conclusion IV set forth above.


The second group of shipments (Items 8 and 8a) consist of shipments of explosives (i.e., detonating fuses) with other commodities. The weights of the individual components of these shipments are shown on the respective bills of lading.

There was set forth in typewritten form on the bills of lading, in that portion allotted to commodity description, not only the description of the commodities transported, but also the statement: 'Rate $ .68 cwt. minimum weight 20,000 lbs. truckload.' The bills of lading also contained the statement: 'Waiver to move by truck granted in accordance with ICC Reg. OP-5 Change 11.' These bills of lading were prepared and signed by appellant's agents.

Appellee charged for each entire shipment at the higher rate applicable to one of the articles, i.e., $ .68 cwt. Appellant contends that the charge should have been made in accordance with the rate applicable to each portion of the shipment.

The district court held for appellee on this group of shipments, as also indicated in Finding II and Conclusion IV set forth above.


The third group of shipments, consisting of two shipments (Items 11 and 11a), are in issue because on these shipments certain specified units of equipment were ordered by appellant and furnished to it by the appellee. In one shipment some five units of equipment were ordered and furnished, and in the other three units of equipment were ordered and furnished.

On the bill of lading of one shipment, typed in with the commodity description, was the following statement: 'Furnished: * * * 5 Trucks 71,450 # Cube 4562', and, typed in with the commodity description on the bill of lading of the other shipment was the following:

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'FURNISHED 1 SET 20 FOOT DOUBLES CU. CAP. 2 35' SEMI CU. CAP. /2798' 19,920 LBS. 700' 2449' 14,940 LBS 19-- 49,800 529' (EACH).'

Appellee contended that these notations were sufficient to constitute an order by the appellant for exclusive use of the equipment furnished and that the equipment was chargeable on the basis of certain minimum rates. Appellant contends that the bills of lading were not properly annotated to evidence exclusive use by the appellant and that appellee was precluded from applying fixed minimum rates.

The district court, as indicated in Finding III, found that the bills of lading on their face 'demonstrated a request for exclusive use.'


The major issues on this appeal relate to these three differing categories of shipments; but before these may be dealt with, two preliminary issues must be met.

The first is whether or not appellant could bring an action for restitution under Section 322 of the Transportation Act of 1940. Appellee contends that since this section is 'limited to carriers subject to the Interstate Commerce Act * * *' and since the 'nine shipments which are involved in this appeal are all intrastate shipments having been transported between points solely within the State of California * * *', appellee, 'in performing such transportation, was not subject to the Interstate Commerce Act,' and was not, therefore, subject to Section 322, Section 322 being 'limited to interstate shipments.' (Appellee's brief, p. 13.)

Section 322 of the Transportation Act of 1940, 49 U.S.C. § 66, states, in part: 'Payment for transportation of the United States mail and of persons or property for or on behalf of the United States by any common carrier subject to the Interstate Commerce Act, as amended * * *.'

The important phrase in Section 322 is...

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