#### UNION PACIFIC RAILROAD CO. v. THE UNITED STATES.

[No. 29981.

Decided February 3, 1913.]

*On the Proofs.*

There is no special contract oí affreightment between the parties, and the bills of lading used and accepted specify no rate. The defendants pay upon a basis of $1 per hundredweight; the railroad accepts the amount under protest, insisting upon an additional amount as prescribed in their regularly published tariff sheets for armor plate.

*115I. The proper classification of merchandise involved in a carrier’s case may depend upon the application of technical terms and upon the general rules and nonmenclature of those engaged in the manufacture of articles of the particular kind. The question as to what rates a railroad was entitled to charge for transporting signal towers, turret tubes, and conning-tower tube, the rates examined by the court and stated.

II. The difference between a machine-finished forging and a rough forging, is that the former is the completed article, the machine having dispelled its entire crudeness. A rough forging is the opposite, though it may take the form and dimensions of the other.

*The Reporters'*statement of tbe case:

The following are the facts of the case as found by the court:

I. The claimant, Union Pacific Pailroad Co., is a corporation, duly organized under and by virtue of the laws of the State of Utah, and was such corporation at the time of performing all the services embraced in this suit, and now is, and during all the times hereinafter mentioned was, engaged as a common carrier in the carriage and transportation of passengers and freight in and through various of the States of the United States and, in conjunction with other railroad companies, between the points hereinafter set forth. Claimant is the sole owner of the claims sued on herein, and has made no transfer or assignment thereof.

II. During the years 1902, 1903, and 1904 claimant at the instance and request of defendant, and upon its promise to pay so much as was reasonably and properly due therefor, transported for defendant divers shipments of signal towers, turret tubes, and conning-tower tube from South Bethlehem, Pa., to Ogden, Utah, all en route to San Francisco,, Cal., the same being destined for use in the construction of the U. S. battleship Milwaukee, then being built for defendant at the Union Iron Works, in San Francisco,- Cal.

The details of said several shipments are correctly set forth in Schedule “ B,” attached as an exhibit to the original petition herein.

III. During all the periods embraced herein there was an organization known as the Western Classification Com*116mittee, comprising practically all the carriers west of Chicago and St. Louis, formed for the purpose of placing the various articles of freight in appropriate classes, which are designated by letter or number, and publishing same. The publication is made in printed pamphlet form, designated as *“*the western classification,” each successive number being identified by an appropriate number. It governed the application of class rates in all tariffs made subject thereto not only in western classification territory, but also in joint tariffs applying to or from territories beyond the western classification territories, when such joint tariffs were made “ subject to the western classification,” or “ subject to the current western classification.”

During all the periods embraced in this suit claimant, Union Pacific Eailroad Co., was one of the railway companies participating in and governed by said classifications and tariffs.

IY. Armor plate is an alloy of steel and nickel, carefully treated metallurgically and surface or face-hardened (harveyized), under secret process, to give it ballistic resisting qualities, as is also armor tube. Both armor plate and armor tube are completely machined products.

Turret tubes, conning-tower tubes, and signal towers are subject, in some instances, to the same processes in manufacture as armor plate and armor tube. The latter are surface or face hardened (harveyized), sides polished, machine finished to exact dimensions, and in every way machine finished. The former articles are uniform throughout (homogeneous), and are known as homogeneous armor; they are machined to the extent of boring holes and cutting to proper lengths.

V. The several consignments of freight embraced in this suit were shipped from South Bethlehem, Pa., over the connecting lines of divers common carriers participating in the transportation thereof to Ogden, Utah, all en route to San Francisco, Cal., the last such carrier, namely, from Council Bluffs, Iowa, to Ogden, Utah, being the claimant herein, Union Pacific Eailroad Co., and, under the terms of said several shipments, the net cash rate to Ogden, Utah (i. e., proportional of the gross through rate to San Francisco, *117Cal.), was to be paid to the delivering carrier of the consignee at destination (Ogden, Utah) and settlement made by it with the preceding carriers. Claimant made settlement with each of said preceding carriers, in respect of the several shipments embraced herein, on the basis of a gross through rate of $2.20, $2.17, and $2.60, respectively, per hundredweight (South Bethlehem, Pa., to San Francisco, Cal.), said settlement and payments by claimant, however, being subject to readjustment and reimbursement by said connecting and preceding carriers in the event of the disallowance of the said rates so claimed herein.

VI. At the time of the shipment by defendant, in December, 1902, of signal tower from South Bethlehem, Pa., to Ogden, Utah, en route, as aforesaid, and embraced in this suit, the published rate on armor plate, South Bethlehem, Pa., to San Francisco, Cal., both commodity and class, was $2.20 per hundredweight, and, on the basis of said gross through rate, the net cash rate (i. e., proportional thereof, all land-grant deductions having been first made) to Ogden, Utah, is $1,208.

VII. At the time of the respective shipments by defendant, in February, 1903, of signal towers and conning-tower tube, and in June, 1903, of turret tubes from South Bethlehem, Pa., to Ogden, Utah, en route, as aforesaid, and embraced in this suit, there was a commodity rate in force from Chicago, Ill., to San Francisco, Cal., of $1.90 per hundredweight, and, at the same time, there was in force and effect a class rate on armor plate from South Bethlehem, Pa., to Chicago, Ill., of $0.27 per hundredweight, which, added to said rate from Chicago to San Francisco, made a gross through rate of $2.17 per hundredweight on armor plate between the terminals aforesaid, and on that basis the net cash rate (i. e., proportional thereof, all land-grant deductions having been first made) to Ogden, Utah, is $1,048.

VIII. At the time of the shipment by defendant, in October, 1904, of conning-tower tube from South Bethlehem, Pa., to Ogden, Utah, en route, as aforesaid, and embraced in this suit, there was in force Western Classification No. 37, effective October 1, 1904, wherein conning towers were *118placed in the second class (whether in carload lots or less), and said Western Classification No. 37 contained the following, under the heading “ Bules and Conditions of the Western Classification ”:

“ 5. Wlien parts or pieces constituting one or more complete article are offered to carriers for transportation at one time by one shipper to one consignee and destination, they will be rated at the classification provided for the complete article whether set up or knocked down as specified in the classification.”

And at said time Trans-Continental Freight Bureau Westbound Tariff, effective January 18, 1904, and continued to and including November 30, 1904, quoted a gross through rate of $2.60 per hundredweight of freight, classified as second class, between South Bethlehem, Pa., and San Francisco, Cal., and, on the basis of said gross through rate, the net cash rate (i. e., proportional thereof, all land-grant deductions having been first made) to Ogden, Utah, is $1,431.

IX. During all the times embraced in this suit there was in force and effect Trans-Continental Freight Bureau Westbound Tariff No. 1-E, effective July 1, 1902, containing a *commodity rate*on forgings of $1 per hundredweight between the terminals involved herein, the same being found under the general heading “ Iron and steel, articles of, as follows: * * * Forgings, rough, not in any manner machine finished.”

Said Tariff No. 1-E further provided that the rates quoted therein are specific, “ and must not be applied to analogous articles.”

X. On the basis of a gross through rate of $1 per hundredweight from South Bethlehem, Pa., to San Francisco, Cal. (being the rate applied and allowed by defendant on the several shipments embraced in this suit), the net cash proportional thereof to Ogden, Utah (all land-grant deductions having been first made), is $0,546 under the first three shipments and $0,545 under the last.

XI. If the proper and legal gross through rate, on the shipments embraced in this suit, from South Bethlehem, Pa., to San Francisco, Cal., be $2.20, $2.17, and $2.60 per hundredweight, whereof the respective net cash proportionals to *119Ogden, Utah, are as above found (findings v, vi, and vh, *supra),*claimant should have received from defendant the following amounts:

*Under settlement No.*9264_$2,141. 34

Under settlement No. 6446_ 344.16

Total_ 2,485. 50

XII. Defendant, for the several shipments embraced in this suit, has allowed and paid claimant the following amounts, basing the same on a gross through rate (from South Bethlehem, Pa., to San Francisco, Cal.) of $1 per hundredweight, using the certain net cash proportionals thereof of $0,546 and $0,545, respectively, as per the above finding x:

Under settlement No. 9264-$1,090.61

Under settlement No. 6446_ 163. 50

Total_ 1,254.11

XIII. If claimant is entitled to recover herein from defendant for the difference between the application of the gross through rate of $2.20, $2.11, and $2.60 per hundredweight, respectively (as claimed herein), as per above finding xi, and the application of the gross through rate of $1 per hundredweight (used by defendant in stating the accounts for said several shipments), as per the above finding xii, the amount of such difference is thus:

Amount claimed-§2,485.50

Amount allowed- 1,254.11

Balance unpaid- 1,231.39

XIY. Claimant has not, in any manner or way, assented to or acquiesced in the certain reduced compensation aforesaid; but, on the contrary, all and singular the certain settlements and payments aforesaid were the subject of formal and repeated objection, protest, and appeal in the accounting department of defendant, where its said several accounts were audited for payment; and that the several amounts claimed herein have not been paid by defendant, nor any part thereof.

XV. The only machining done on any of the articles embraced in this suit was as follows:

1. *Signal towers.*— Cut to proper lengths and sight holes drilled. *1202. *Gowning-tower tubes.*— Cut to proper lengths. Some-Í times the interior was turned off roughly to bring the dimen- ! sions down to specifications.

3. *Turret tubes.*— Cut to proper lengths and beveled on ’the bottom of the tube.

Said signal towers, turret tubes, and conning-tower tubes were rough steel forgings; they were not armor plate, and conning-tower tubes are not conning towers.

*Mr. A. A. HoeMing*for the claimant.

*Mr. J. Harwood Graves*and *Mr. Louis A. Bissell*(with whom was *Mr. Assistant Attorney General John Q. Thomp*son) for the defendants.

Booth, J.,

delivered tiie opinion of the court:

This case involves a single issue — that is, the proper classification for freight charges of certain articles shipped by the United States over claimant’s railroad. In the years 1902, 1903, and 1904 certain signal towers, conning-tower tubes, and turret tubes were transported by the claimant company from South Bethlehem, Pa., to Ogden, Utah, en route to San Francisco, Cal., to be used on the U. S. battleship Milwaukee, then in course of construction. There was no special contract of affreightment, the ordinary Government bills of lading being used and accepted, in which no special or any other rate was specified. The defendants settled the claims upon a basis of $1 per hundredweight for each article, the claimant company accepting the amount paid under protest, insisting upon an additional allowance as provided in their regularly published tariff sheets for armor plate. There is no dispute as to the amount involved herein.

During the period covered by this suit there was a commodity rate of $2.20 per hundredweight applicable to all shipments of armor plate. *(Union Pacific R. R. Co.*v. *United*States, No. 23459.) On iron and steel forgings, rough, not in any manner machine finished, a rate of $1 per hundredweight was provided. On conning towers there was a specific commodity rate of $2.60 per hundredweight. The discussion of the controversy is more or less concentrated upon questions of fact, few decisions have been cited, and *121it is apparent that the proper classification of the merchandise involved depends upon the application of technical terms and the general rules and nomenclature employed.by those engaged in the manufacture of articles of this particular kind.

A signal tower, as its name imports, is a hollow cylindrical forging some 7 or 8 feet in diameter, containing 6 or 8 sight-holes, located in the aft of the ship, to be used by the signalman in manipulating different signals. A conning-tower tube is a hollow cylindrical forging drawn on a mandrel, inside diameter about 36 inches, length about 20 feet, and serves as a means of communication between the conning tower and the lower part of the ship. A turret tube is likewise a cylindrical forging, 50 inches in diameter, 3 inches thick, is located below the barbette, protecting the ammunition hoist. Armor plate is a metallic forging, of iron or steel, intended to be attached to the sides of a battleship with a view to rendering it shot-proof; it is conceded to be machine finished. It is not difficult to comprehend the difference between a machine-finished forging and a rough forging. The former comprehends the completed article ready to be set up for or capable of immediate use, the machine or machines having dispelled its entire crudeness. A rough forging is, of course, the very opposite; it may take the desired form and dimensions for the particular purpose intended, but essentially lacks the degree of perfectness obtained by application to machines; in fact, it is put upon the market in a crude state without the expenditure of the time and expense necessary to finish it with exactness and nicety. Armor plate, as known to the trade, has a distinct and separate identity. The Government is practically the maker’s single customer, and when speaking of it one instinctively implies its meaning to those plates of iron and steel attached to the sides of a warship. The particular trade so applies it. There is nothing in this record to warrant the extension of the term so as to comprehend analogous articles, even though manufactured from similar materials in a similar way. It could not be done in this case even if *122sustained, for under the law commodity rates can not be applied by analogy. The treatment accorded armor plate in its manufacture and finish, involving as it does the application of the harveyized process, its reduction to exact dimensions, the polishing and face hardening of its sides, and the various other details of finish, so completely removes every suggestion of crudeness that it becomes a highly machine-finished article. It is true that some machinery is employed on the articles here involved; a machine is used to reduce them to proper dimensions and bore the sightholes. Such machining is, however, merely incidental and vicarious to the forging process. It is simply the employment of more modern methods to facilitate the manufacture of the material. It does not extend to that degree of perfectness and symmetry required in an article known to the trade as machine finished. As was most aptly stated by an expert witness in the case, in response to an interrogatory calling for the distinction between a machined forging and a machine-finished article—

> “ The question involves the local nomenclature used in various works and shipyards. In our works we are not in the habit of using the term £ *machine*finished ’ but use the words ‘finish machined.’ A finish-machined forging, as I understand it, is a forging which has been accurately machined to ordered sizes, which ordered sizes have been precise enough to allow; the placing of the forging into position ready for use without subsequent machining. A machined forging, or, as we would say, a rough machined forging, may require further machining and is often rough machined for the purpose of developing suspected defects under the skin of the forging.” . 1

(See also *Prosser*v. *United*States, 1 U. S. Ct. of Cust. Appls. R., 550.)

The only machining done on any of these articles is set forth in Finding XY, and while the purpose of their manufacture and use aboard ship was in a sense similar to the designed use of armor plate, i. e., protection under fire, the latter to protect the vessel and the former to protect the men, ammunition, and certain important and vital appurtenances, it is impossible in the face of the record to sustain. *123an. identity of classification in articles so distinct in composition, finish, and manufacture.

The petition is dismissed. It is so ordered.

Judge Ho wet did not hear this case, and took no part in the decision.