United States v. Chesapeake & Ohio Ry. Co., 6808.
| Decision Date | 14 August 1954 |
| Docket Number | No. 6808.,6808. |
| Citation | 215 F.2d 213 |
| Parties | UNITED STATES v. CHESAPEAKE & OHIO RY. CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Alan S. Rosenthal, Dept. of Justice, Washington, D. C. (Asst. Atty. Gen., Warren E. Burger, L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., and Melvin Richter, Dept. of Justice, Washington, D. C., on brief), for appellant.
Meade T. Spicer, Jr., Richmond, Va. (Walter Leake, Richmond, Va., on brief), for appellee.
Before PARKER, Chief Judge, and DOBIE, Circuit Judge, and TIMMERMAN, District Judge.
This is an appeal from a judgment in the sum of $2,671.43 in favor of the Chesapeake and Ohio Railway Company in a suit against the United States under the Tucker Act, 28 U.S.C.A. § 1346, to recover the difference between the domestic freight rate and the export rate on certain shipments of automobile parts made from Pontiac, Michigan, to Newport News, Virginia, between December 10, 1941 and January 9, 1942. The shipments in question consisted of twenty-four car loads of chassis, seat cabs and bodies. They were shipped on government bills of lading which showed that they were intended for export to China by way of Rangoon, Burma. The shipments were made in good faith with the intention that they would be exported, releases for that purpose were properly obtained, and, but for the fall of Rangoon to the Japanese, they would have been exported on one of the vessels comprising the pool which the government was using in the transportation of lend-lease commodities. They were allowed to remain in Newport News, however, until after the fall of Rangoon, when it became impossible to transport them to China by way of that port. The government thereupon had them shipped to storage centers in the United States; and there is no showing that they were exported or that any further effort was made to export them. The railroad company billed the government for the domestic tariff rate on the shipments, which was duly paid. Later, in the year 1945, the general accounting office exercised the statutory right, 49 U.S.C.A. § 66, to deduct from other amounts due the railroad by the government the difference between the domestic tariff rate and the export tariff rate, which was lower; and this action was instituted to recover the amount of this deduction.
The tariff rates filed by the railroad with the Interstate Commerce Commission provide a lower rate for export shipments than for domestic shipments, but only for export shipments which do not leave the possession of the carrier until delivered to the vessel which is to transport them or on which proof of exportation is given. Provision 23,030 of Central Freight Tariff No. 218-M, which is on file with the Interstate Commerce Commission and applies to the shipments in question is as follows:
"The rates named in this tariff, or as same may be amended, and designated as `Export Rates\' will apply only on traffic which does not leave the possession of the carrier, delivered by the Atlantic Port Terminal carriers direct to the steamer or steamer\'s dock upon arrival at the port or after storage or transit has been accorded by the port carrier at the port under tariffs which permit the application of export rates, and also on traffic delivered to the party entitled to receive it at the carriers\' seaboard stations to which export rates apply, which traffic is handled direct from carriers\' stations to steamship docks and on which required proof of exportation is given".
The question in the case is whether the domestic rate or the export rate applies to the shipments in question. The District Judge held that the good faith intention of the government, at the time the shipments were started, was not a controlling factor; that the fact that there was in effect and on file with the Interstate Commerce Commission, a certain rate for the transportation for purely domestic shipments moving from Pontiac, Michigan, to Newport News, Virginia, and another rate for export shipments initially moving between those two points, "determined" the reasonableness of both rates; that the tariff requirement for actual proof of exportation for application of the export rate, was a reasonable safeguard "to insure that actual exportation is carried out," and that the shipments involved in this case did not ever acquire or reach export status. With respect to the lack of evidence of any effort to export the shipments, the judge said:
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