Northern Pac. Ry. Co. v. United States, Civil Action No. 90.

• Decision Date: 15 January 1946
• Docket Number: Civil Action No. 90.
• Citation: 64 F. Supp. 1
• Parties: NORTHERN PAC. RY. CO. v. UNITED STATES.
• Court: U.S. District Court — Western District of Wisconsin

64 F. Supp. 1

NORTHERN PAC. RY. CO. v. UNITED STATES.

Civil Action No. 90.

District Court, W. D. Wisconsin.

January 15, 1946.

Johnson, Fritschler & Barstow, of Superior, Wis., and M. L. Countryman, Jr., and L. B. da Ponte, both of St. Paul, Minn., for plaintiff.

Charles H. Cashin, U. S. Atty., of Madison, Wis., and John F. Sonnett, Acting Head, Claims Division, and Hubert H. Margolies, Atty., Department of Justice, both of Washington, D. C., for defendant.

STONE, District Judge.

This is an action commenced under the Tucker Act, paragraph 20 of Section 24 of the Judicial Code of March 3, 1911, 36 Stat. 1093 as amended, 28 U.S.C.A. § 41 (20), to recover from the defendant freight charges on interstate shipments of government property. Plaintiff submitted its bills to the defendant at published tariff rates. The defendant, claiming that land grant rates applied under Section 321 (a) of the Transportation Act of 1940, 49 U.S.C.A. § 65 (a), deducted the difference between the published tariff rates and the land grant rates, in some instances from the original bills and in other instances from subsequent bills.

The facts have been stipulated by the parties, and the Court adopts the stipulation as its findings of fact.¹

The defendant denies liability and alleges that the shipments in dispute constituted transportation of military or naval property of the United States moving for military or naval and not for civil use, within the meaning of said Section 321 (a) of the Transportation Act.

Plaintiff denies that the said shipments were military or naval property of the United States moving for military or naval and not for civil use, and contends that the defendant is not entitled to the land grant deductions it has taken on the shipments involved in this action.

Plaintiff has withdrawn its claim as set forth in paragraph 12 of the stipulation (paragraph IX of the complaint), and defendant has admitted liability to plaintiff on the shipment described in paragraph 7 of the stipulation (paragraph IV of the complaint). The total amount now claimed by plaintiff from the defendant in this action is $3,889.08.

That portion of the statute pertinent to these proceedings reads:

"Notwithstanding any other provision of law, * * * the full applicable commercial rates * * * shall be paid for transportation by any common carrier subject to (the Act) * * * of any * * property for the United States, or on its behalf, except that the foregoing provision shall not apply to the transportation of military or naval property of the United States moving for military or naval and not for civil use * * *."

There is only one question for this Court to decide, and that is: Were the shipments of the government property described in the complaint and stipulation military or naval property moving for military or naval use and not for civil use?

The term "military use" will be considered for the present purpose as embracing naval use.

Webster's New International Dictionary, 2nd Edition, unabridged, defines the words "military" and "naval" as follows:

"Military" — "of or pertaining to soldiers, arms, or war; belonging to, engaged in, or appropriate to, the affairs of war; according to the methods and customs of war or of armies" "Naval" — "of or pertaining to ships or shipping; of or pertaining to or connected with, possessing or characteristic of vessels of war or a navy".

Black's Law Dictionary, 2nd Edition, at page 778, defines military as "pertaining to war or to the army; concerned with war."

The times, circumstances and conditions must all be considered in determining whether property is used for a military purpose. In times of war, the concept of "property for military use" takes on a wider range than in times of peace. Property which in times of peace or under ordinary conditions is usable for "non-military" purposes, must be considered in times of war "military" when it is used for a military purpose. The test is whether the foremost purpose which the shipment is designed and intended to serve is a military purpose, and whether the civilian use is more than incidental.

Military property includes all property of every kind and description intended for and used in connection with the conduct of the war. Modern science has changed weapons of warfare. Many articles and substances once considered unimportant for a belligerent purpose have become necessary and useful in the prosecution of the war. Military or non-military articles can be properly classified only after appropriate consideration has been given to the pressure and exigencies of the time, the current needs and circumstances of its use. Fishing tackle for use by vacationists is civil property, but manifestly becomes military when packed in a life raft for use by airmen downed at sea. Copper cable, as such, is not necessarily military property. However, under particular conditions of war or defense, it may become indispensable to military functioning when owned by the United States and devoted to a war use. It then acquires the character of military property.

The shipment of bowling alley equipment was originally intended to serve as a recreation center for the civilian employees of the contractor and later as a recreation center for military personnel occupying the station. The construction work performed by the contractor and his men was essential to the war effort and was so regarded by the Navy Department. The remoteness of the station in Alaska, the disagreeable weather, difficult working conditions, and the boredom of off-hours necessitated special measures to keep the employees satisfied and willing to remain at the station. The structure which was to house the bowling alley was completed in December, 1942, when all civilian workmen were evacuated and the construction work was taken over by the Seabees. At Dutch Harbor, where the alleys were installed, the lands and buildings are all owned by the United States and operated as a naval establishment, and all non-military activities are excluded. Clearly the alleys fulfilled a military function in maintaining the efficiency, morale and physical fitness of the military men at this remote outpost, and are military or naval property, and were moved in interstate commerce for military and not for civil use.

In May, 1943, plaintiff transported to Minneapolis, Minnesota, consigned to the Depot Quartermaster for the United States Marine Corps, the lumber referred to in paragraph 10 of the stipulation for manufacture into trestle and ponton balks for use of the United States Marine Corps. The lumber used in the manufacture of the trestle and ponton balks was carefully selected, assembled and shipped by the Marine Corps. The trestles and balks manufactured from the lumber are components of pontons or demountable floating bridges required to move military personnel and vehicles of war across water barriers. Some of the trestle and ponton balks so manufactured were shipped and used in military operations overseas, and some were used for training of combat engineers at Camp Lejeune, North Carolina, and at Quantico, Virginia. The lumber used to manufacture these components was unquestionably military property.

In August, 1941, when our involvement in the war was imminent, plaintiff transported for the Navy Department to Tacoma, Washington, in interstate commerce, insulated copper cable for use by the Navy in the installation of degaussing equipment on Hull No. 123, a cargo vessel later known as the S. S. Idaho. Hull No. 123 was built pursuant to a contract entered into on October 9, 1939, between the shipbuilding company and the Maritime Commission. In accordance with Section 501 (b) of the Merchant Marine Act of 1936, as amended, 46 U.S.C.A. § 1151 (b), the plans for the construction of Hull No. 123 were submitted to the Navy Department for changes necessary for the vessel to be readily converted into a military or naval auxiliary. While this vessel was under construction in 1940 the Maritime Commission and the Navy Department agreed that all vessels under construction by the Maritime Commission, as this one was, should have the defense feature, the degaussing equipment, to counteract magnetic mines. The Navy Department furnished the specifications for this equipment and paid for its installation on Hull No. 123 as a necessary defense measure. This vessel so equipped was essential to and was used in the conduct of the war. The copper cable comes within the category of military or naval property.

In January and February, 1942, the plaintiff transported lumber purchased and shipped by defendant in interstate commerce to New Brighton, Minnesota, consigned to the United States Area Engineer, Twin Cities Ordnance Plant, to be used in the construction of buildings for the Twin Cities Ordnance Plant on land owned by the United States Government. The construction was done under the authority of the Secretary of War, and under the supervision of the Corps of Army Engineers. The plant was to be used to manufacture .30 and .50 caliber ammunition pursuant to a cost-plus-fixed-fee contract. The ordnance plant then in operation was engaged in the manufacture of .30 and .50 caliber ammunition for our armed forces. The lumber was shipped and used for a specific purpose — to construct a public arsenal which would provide more small arms ammunition for the army. The arsenal produced nothing but ammunition for the defendant.

It is a matter of common knowledge that at the outbreak of the war the productive capacity of the commercial producers of ammunition in the United States was inadequate. The urgent requirements of the army necessitated a rapid expansion of government-owned facilities to supplement the existing arsenals. These plants, known as "government-owned and contractor-operated arsenals," were operated under the supervision of the ordnance department. The Twin Cities Ordnance Plant was a public arsenal. Its construction...