United States v. Strickland Transp. Co.
| Decision Date | 30 January 1953 |
| Docket Number | No. 13863.,13863. |
| Citation | 200 F.2d 234 |
| Parties | UNITED STATES v. STRICKLAND TRANSP. CO., Inc. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hubert H. Margolies, Attorney, Dept. of Justice, Washington, D. C., David O. Belew, Jr., Asst. U. S. Atty., Ft. Worth, Tex., for appellant.
Ralph W. Currie, Dallas, Tex., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.
This is an appeal from a judgment1 entered in a suit and cross suit making claims of under and over charges on shipments by motor carrier of internal combustion engines. The judgment adjudicated in favor of the carrier that the shipments were properly billed at the rates claimed by the carrier rather than at the lower tariff rates claimed by the government.2
The United States, appealing from the judgment, is here urging its reversal for procedural and substantive errors. The procedural error relied on is: that, this being a Tucker Act case, 28 U.S.C.A. §§ 1346, 1402(a), 2401, 2402, 2411, 2412, specific and comprehensive findings of fact were required; that none were filed, however, but only the wholly inadequate oral opinion set out in Note 1, supra; and that the judgment must, therefore, be reversed and the cause sent back for adequate findings.
The substantive error claimed is that the principles governing the construction and application of tariffs demanded: findings, that, of the four possible ratings3 put forward as applicable, one of the first three thereof was the controlling one; and a judgment giving those findings effect.
The appellee insists: that the opinion of the district judge contained sufficient findings to satisfy the procedural requirements of the Tucker Act; and that the selection of the Classification rating, "Aircraft or Parts Named, Etc." (No. 4 in note 3, supra) as the applicable rating was correct in fact and in law. So insisting it urges that the judgment must be affirmed.
We do not think so. We think, on the contrary, that the appellant is right in both of its contentions. Of the opinion that it appears as a matter of law that the proper rating was that provided by the classification "Machinery, or Machines or Parts Named — Engines, steam or internal combustion, NOI", we find it unnecessary to reverse for the procedural error claimed. We think this rating is the proper one because it more precisely describes and better fits the shipments in question than does the rating for which appellee contends; that, in short, it is the more specific and, therefore, the controlling rating.4
We think this is so, too, because, if it be considered that the shipment could come under either of the two classifications, the shipper was entitled to the "Machinery or Machines" classification because the rate prescribed by it is the lower.5
Finally, we think appellant has the right of it because, if it could be considered that there is an ambiguity in the tariff and it is not made clear under which rating the articles shipped come, the ambiguity must be resolved in favor of the shipper, and the lower rate must be awarded to him.6
These views find support in the principles and authorities governing the construction and application of tariffs generally and in the omission from the classification "Aircraft or parts named — Aircraft parts NOI", of a specific designation of aircraft engines or airplane power plants which the carrier in this case claimed these engines were. They find it, too, in the rulings and practices of the Interstate Commerce Commission in cases where attempts have been made to make such specific designation,7 or, in the absence of such a designation to obtain a ruling that airplane engines are different from and must move under the higher aircraft and aircraft parts rating rather than under the lower rating of engines — internal combustion.8
In giving expression to these views, it is not intended to depart at all from what is held or said by this court in United States v. M. K. & T. Railroad Co., 5 Cir., 194 F. 2d 777, 778.9 It is, on the contrary, to reaffirm it. Indeed the decision in that case is direct authority for our decision here. It is true that in that case the tariffs which were involved were railroad tariffs, while here they are motor carrier tariffs, and that their makeup and content are not the same. It is true, too, that the construction given there resulted in applying the higher tariff claimed by the carrier rather than the lower claimed by the shipper. The principles laid down and applied to the facts there and the considerations given controlling effect, however, are the same as those laid down and given effect here.
Of the view appellee puts forward and makes so much of, that because the record contains evidence from which it might well be found that the engines in question or some of them were intended for use in airplanes, this would require a finding that the applicable rating would be that prescribed for airplane and airplane parts, it is sufficient to say that we regard this view as entirely untenable. The question for decision here is not, as appellee seems to think that it is, what in fact was the use to which the internal combustion engines were expected to be or were put. The questions posed are: (1) Was the article which was shipped an internal combustion engine? (2) Was there a specific tariff rating applying to internal combustion engines? and (3) If it be assumed that some or all of the engines shipped were for use in airplanes, was the rating on internal combustion engines lower and, therefore, more favorable to the shipper than the rate provided under airplanes and airplane parts?
While, therefore, we are of the opinion that the findings would have been too meager and inadequate to support the judgment, if there had been any dispute of fact or conflict in the evidence, we are of the further opinion that there is not such conflict or dispute and as matter of law the judgment entered for plaintiff was erroneously entered. Because we are, the judgment appealed from is reversed and the cause is remanded for findings and a judgment for the defendant in accordance herewith.
1 Purportedly based on and conforming to the court's oral opinion:
To continue reading
Request your trial
-
Associated Press v. FCC
...the same provision was incorporated into Tariff No. 134. See note 23, supra, and accompanying text. 47 See United States v. Strickland Transp. Co., 200 F.2d 234, 235 (5th Cir. 1952); United States v. Missouri-K.-T. R.R., 194 F.2d 777, 779 (5th Cir. 1952). An analogy is the reference to a ti......
-
West India Industries, Inc. v. Tradex, Tradex Petroleum Services
...422 F.2d 7, 15 (2d Cir. 1969), cert. denied, 397 U.S. 964, 90 S.Ct. 998, 25 L.Ed.2d 255 (1970); cf. United States v. Strickland Transp. Co., 200 F.2d 234, 235 (5th Cir. 1952) ("if it could be considered that there is an ambiguity in the tariff and it is not made clear under which rating the......
-
Coca-Cola Co. v. Atchison, T. and S. F. Ry. Co., COCA-COLA
...the railroads. E. g., Strickland Transportation Co. v. United States, 334 F.2d 172 (5th Cir. 1964); United States v. Strickland Transportation Co., 200 F.2d 234 (5th Cir. 1952). But as this court has previously admonished, we must resist the "temptation to take the ambiguity route as an eas......
-
Rainbow Nav., Inc. v. US
...("The ambiguity of the liberties clauses would have to be construed against the carrier, who drafted them"); U.S. v. Strickland Trans. Co., 200 F.2d 234, 235 (5th Cir.1952), and Schoenbaum, supra, § 9-8 at 12 The aspect of the clause numbered six, above, does not apply, because the facts ar......