Hughes Transp. v. United States, No. 525-52.

CourtCourt of Federal Claims
Writing for the CourtJONES, , and LITTLETON, WHITAKER, and MADDEN
PartiesHUGHES TRANSP., Inc. v. UNITED STATES. COMMONWEALTH OF KENTUCKY v. UNITED STATES.
Docket NumberNo. 525-52.
Decision Date04 May 1954

121 F. Supp. 212

HUGHES TRANSP., Inc.
v.
UNITED STATES.

COMMONWEALTH OF KENTUCKY
v.
UNITED STATES.

No. 525-52.

United States Court of Claims.

May 4, 1954.


121 F. Supp. 213
COPYRIGHT MATERIAL OMITTED
121 F. Supp. 214
Daryal A. Myse, Washington, D. C., Hand & Myse, Washington, D. C., on the brief, for plaintiff

J. D. Buckman, Jr., Atty. Gen., George M. Catlett, Asst. Atty. Gen., on the brief, for Commonwealth of Kentucky, intervenor.

Lawrence S. Smith, Washington, D. C., Warren E. Burger, Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, and MADDEN, Judges.

LITTLETON, Judge.

This is a suit based upon a contract of carriage by motor vehicle, whereby plaintiff carrier seeks to recover the difference between the amount of freight charges paid plaintiff by the United States (as shipper) and the amounts plaintiff asserts are due it either (1) under the applicable approved Kentucky intrastate tariff, as required by Kentucky law and regulations, or in the alternative (2) under plaintiff's interpretation of the terms of that portion of the contract of carriage which specified the rates to be charged (plaintiff's Quotation No. 29, hereinafter set out in full).

On the basis of plaintiff's original petition, both parties have filed cross-motions for summary judgment and defendant has asserted a counterclaim alleging various overpayments made by it to plaintiff on numerous payments for transportation services performed by plaintiff for defendant. On the occasion of oral argument of the cause in open court, plaintiff was allowed to amend its original petition by the addition of a substantial number of comparable transactions upon which plaintiff seeks judgment on the same grounds as those asserted in its original petition. Defendant also asserts a counterclaim on the amended petition.

Both parties agree (1) that in the event plaintiff is entitled to recover or defendant's counterclaim is allowed, the precise sums involved on the total number of shipments are to be determined by the General Accounting Office, and (2) that the cross-motions for summary judgment are now submitted to the court under Rule 51(e),1 28 U.S.C., for determination

121 F. Supp. 215
of the basic legal issues involved therein and the determination of such facts as are not in dispute. Rule 51(e) contemplates the entry of an interlocutory judgment reserving any further questions of fact as to the total amounts involved in the recovery, if any

The material facts, except as hereinafter indicated, are not in dispute. Plaintiff is a South Carolina corporation. Under permits granted by the Department of Motor Transportation of the Commonwealth of Kentucky, plaintiff was authorized to transport the articles involved in this claim over the highways of Kentucky and solely within that State, as a contract carrier by motor vehicle. On March 13, 1950, plaintiff issued Quotation No. 29. This quotation was filed and maintained with the United States Department of the Army until February 19, 1951, and provided as follows:

During the effective period of the above quotation, plaintiff transported for the

 "HUGHES TRANSPORTATION, INC
                 MEETING STREET ROAD
                 CHARLESTON, SOUTH CAROLINA
                 I. C. C. DOCKET No. MC-102682 and SUBS
                 KENTUCKY PERMIT No. 291 & 536
                 U. S. Government Quotation No. 29 Cancels
                 U. S. Government Quotation Nos
                 24-A, 24-A, Sub. 1, 25-B, 25-B, Sub. 1.
                 Special Quotation on U. S. Government
                 Freight Moving on U. S. Government
                 Bills of Lading
                 COMMODITY: Class A. — Explosive Ammunition.
                 TERRITORY: Between Blue Grass Ordnance Depot,
                 Richmond, Kentucky and all points Carrier
                 is authorized to serve.
                 RATES: Subject to Rail or Motor Truck Rates
                 which ever is lower.
                 Minimum Weight Classification
                 20,000 75%
                 *25,000 65%
                 Less Truck Load Shipments subject to
                 Rail Less Car Load Rates Or Motor Truck
                 Less Truck Load Rates whichever is lower.
                

 ROUTE: Hughes Transportation, Inc., Charleston,
                 S. C.
                 EFFECTIVE: March 13, 1950 Date Issued:
                 EXPIRES: May be canceled upon ten (10) days notice.
                 Issued By: /s/ X. O. BUNCH, JR.
                 Vice-President"
                

Department of the Army numerous shipments of explosive ammunition for cannon with explosive or smoke projectiles, between Blue Grass Ordnance Depot, Richmond, Kentucky, and Ft. Knox, Kentucky (135 miles), and also between Richmond and Camp Breckenridge, at Morganfield, Kentucky (272 miles). Quotation

121 F. Supp. 216
No. 29, on file with the Department of the Army during the period in suit, was never filed with the Kentucky Department of Motor Transportation for approval by that Department, as required by Chapter 281 of the Kentucky Revised Statutes then in effect, and the applicable regulations of the Department issued thereunder (Regulation II-6).2 Neither plaintiff nor defendant appear to have been aware of the above requirements of Kentucky law throughout the period in question and for some time thereafter.

All of the shipments were made under Government bills of lading in the standard form, and, from time to time, as the transportation was completed, plaintiff filed with appropriate officers of the Department of the Army its bills for such transportation. Plaintiff's bills claimed freight charges, in accordance with Quotation No. 29, at the rate of 81 cents per hundred pounds for such transportation between Richmond and Ft. Knox, and at the rate of 109 cents per hundred pounds for transportation between Richmond and Morganfield. The amounts charged by plaintiff represented its interpretation of Quotation No. 29 and the proper application of such quotation to the first-class rail rates as shown in railroad tariff known as Agent C. A. Spaninger's K. R. C. No. 142. Plaintiff's application of Quotation No. 29 (which, as we have said was not filed with or approved by the Kentucky Department of Motor Transportation) to this first-class rail tariff was correct. However, for the reasons

121 F. Supp. 217
hereinafter set forth, we hold that Quotation No. 29 and the rail tariff referred to are not, under the facts and circumstances, applicable in determining the proper and legal rates for the transportation involved in this case. The Comptroller General did not undertake to apply Quotation No. 29 to the rail tariff.

The General Accounting Office audited plaintiff's charges for transportation, and under its interpretation of Quotation No. 29 and by the application, according to the interpretation of that office, of the approved motor freight tariff "Central and Southern Motor Freight Tariff Association, Incorporated, Agent, Kentucky Intrastate Motor Freight Tariff No. 7-A (MF-DMT Ky. No. 14)," determined that the Richmond to Ft. Knox shipments should have been charged at the rate of 67 cents per hundred pounds, and the Richmond to Morganfield shipments at the rate of 87 cents per hundred pounds. Plaintiff's protests against the action of the General Accounting Office were rejected, and in May 1952 the Assistant Comptroller General further considered the case and redetermined the rate for the Ft. Knox shipments to be 43 cents per hundred pounds on the basis of his interpretation of Supplement No. 44 to the Kentucky Intrastate Motor Freight Tariff No. 7-A. (This supplement was not in effect at the dates of the transportation.)

Kentucky Intrastate Motor Freight Tariff No. 7-A was a tariff regularly on file with and approved by the Kentucky Department of Motor Transportation.

Either of the above interpretations of Quotation No. 29 results in freight charges considerably below those required for this transportation by Kentucky law which provides that in the absence of specific approval by the Kentucky Department of Motor Transportation, the contractual charges by a contract carrier shall not be less than the minimum charges of common carriers for the same or similar service. The minimum charges of common carriers for this type of service are to be found in the Kentucky Intrastate Motor Tariff No. 7-A, which tariff was the one used by the General Accounting Office in its attempt to arrive at what is considered to be the proper rates under the provisions of Quotation No. 29. However, if Quotation No. 29 is not applicable because it was not filed with and approved by the Kentucky Department of Motor Transportation, then the motor tariff rates for the transportation of ammunition, as shown in the Intrastate Motor Tariff 7-A, clearly require a charge of 204 cents per hundred pounds for the Ft. Knox-Richmond shipments, and 266 cents per hundred pounds for the Richmond-Morganfield shipments.

We are of the opinion that the interpretation of the General Accounting Office of Quotation No. 29 and its application to Kentucky Intrastate Motor Freight Tariff No. 7-A, under the interpretation by that office, were incorrect. However, for the reasons hereinafter stated, we find it unnecessary to discuss this decision of the General Accounting Office.

It is plaintiff's position that inasmuch as the contract of carriage involved transportation over the highways of the Commonwealth of Kentucky, between points wholly within Kentucky, the contract was one for intrastate transportation and as such is governed by Kentucky law; that in the absence of approval by the Kentucky Department of Motor Transportation of a quotation for a contract for rates lower than those applicable to intrastate motor common carriers, under tariff 7-A, for the same or similar transportation, those motor common carrier rates must be applied; that plaintiff is accordingly entitled to judgment on the basis of the applicable motor common carrier rates contained in the approved Kentucky Intrastate Motor Tariff No. 7-A, the precise amount to be determined after an audit by the General Accounting Office.

The Commonwealth of Kentucky has been allowed by the Court to intervene as a party plaintiff, inasmuch as it appears that the Commonwealth has a real and legitimate interest in seeing that its

121 F. Supp. 218
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18 practice notes
  • Pacific Far East Line, Inc. v. United States, No. 119-63.
    • United States
    • Court of Federal Claims
    • May 10, 1968
    ...and defendant normally is subject to "the same rules of law that govern private individuals." Hughes Transp., Inc. v. United States, 121 F.Supp. 212, 228, 128 Ct.Cl. 221, 245 (1954). A party vested with contractual discretion must exercise his discretion reasonably and may not do so arbitra......
  • United States v. Bethke, Civ. No. 4301.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 9, 1955
    ...262 U.S. 318, 43 S.Ct. 583, 67 L.Ed. 999; Hughes Transp., Inc., v. United States (Commonwealth of Kentucky v. United States), 1954, 121 F.Supp. 212, 128 Ct. Cl. 221; United States v. Aberdeen, etc., R. Co., 289 I.C.C. 49, 63-67; Interstate 132 F. Supp. 26 Rates Between Points in Missouri, 1......
  • Howe v. Allied Van Lines, Inc., TRANS-AMERICAN
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 9, 1980
    ...the court did not discuss the applicability of section 20(11). Finally, plaintiffs rely on dicta in Hughes Transp. Co. v. United States, 121 F.Supp. 212, 128 Ct.Cl. 221 (1954), which was vacated, and summary judgment was granted to the government for other reasons in a subsequent decision. ......
  • Shirks Motor Exp. Corp. v. Forster Transfer & Rigging Co., No. 202
    • United States
    • Court of Appeals of Maryland
    • June 18, 1957
    ...Co., 62 MCC 53, 54-55; Page 25 Graver Corp. v. Southern Railway Co., 156 ICC 619, 621; Hughes Transportation, Inc. v. United States, 121 F.Supp. 212, 128 Ct.Cl. 221. The Act is remedial legislation and should be given a liberal interpretation. For the same reason exemptions from its sweep s......
  • Request a trial to view additional results
18 cases
  • Pacific Far East Line, Inc. v. United States, No. 119-63.
    • United States
    • Court of Federal Claims
    • May 10, 1968
    ...and defendant normally is subject to "the same rules of law that govern private individuals." Hughes Transp., Inc. v. United States, 121 F.Supp. 212, 228, 128 Ct.Cl. 221, 245 (1954). A party vested with contractual discretion must exercise his discretion reasonably and may not do so arbitra......
  • United States v. Bethke, Civ. No. 4301.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 9, 1955
    ...262 U.S. 318, 43 S.Ct. 583, 67 L.Ed. 999; Hughes Transp., Inc., v. United States (Commonwealth of Kentucky v. United States), 1954, 121 F.Supp. 212, 128 Ct. Cl. 221; United States v. Aberdeen, etc., R. Co., 289 I.C.C. 49, 63-67; Interstate 132 F. Supp. 26 Rates Between Points in Missouri, 1......
  • Howe v. Allied Van Lines, Inc., TRANS-AMERICAN
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 9, 1980
    ...the court did not discuss the applicability of section 20(11). Finally, plaintiffs rely on dicta in Hughes Transp. Co. v. United States, 121 F.Supp. 212, 128 Ct.Cl. 221 (1954), which was vacated, and summary judgment was granted to the government for other reasons in a subsequent decision. ......
  • Shirks Motor Exp. Corp. v. Forster Transfer & Rigging Co., No. 202
    • United States
    • Court of Appeals of Maryland
    • June 18, 1957
    ...Co., 62 MCC 53, 54-55; Page 25 Graver Corp. v. Southern Railway Co., 156 ICC 619, 621; Hughes Transportation, Inc. v. United States, 121 F.Supp. 212, 128 Ct.Cl. 221. The Act is remedial legislation and should be given a liberal interpretation. For the same reason exemptions from its sweep s......
  • Request a trial to view additional results

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