#### SOUTHERN PACIFIC CO. v. THE UNITED STATES

[No. 34717.

Decided December 6, 1926]

*On the Proofs*

*Transportation of armor plate; special service; agreed,*rates.— Where a carrier agrees to transport armor plate for the Government in specially equipped cars, at special rates, and performs the stipulated service, it is entitled to the special rates agreed upon.

*Same; class and copimodity rates.-*— -Where a commodity item in carrier’s tariff covering articles of iron and steel excepts therefrom armor plate, stating that class rates will apply, the carrier is entitled to class rates on armor plate.

*Same; deductions from Railroad Administration accounts; recharge to other companies.-*— Where the accounting officers, in order to *650recover alleged overpayments to the plaintiff, make corresponding deductions from Railroad Administration accounts, and the Railroad Administration charges said deductions to carriers other than the plaintiff, and the plaintiff does not account for them to the Railroad Administration, it can not recover.

Some; *protest by*carrier; *presentation of supplemental claim.—*Where the plaintiff accepts payment of the amount billed by it without making protest at the time of payment, and thereafter submits a supplemental claim to the accounting officer, who allows a part and disallows the remainder, the facts recited do not show acquiescence and the plaintiff may recover the amount disallowed by the accounting officer, if otherwise entitled thereto.

*The Reporter's*statement of the case:

*Mr. William R. Harr*for the plaintiff. *Mr. Charles H. Bates*was on the briefs.

*Mr. Louis R.*MeKlinger, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant. *Mr. Perry W. Howard*was on the brief.

The court made special findings of fact, as follows:

I. Plaintiff is a corporation and a common carrier by railroad of freight and passengers.

II. During the years 1911, 1920, and 1921 the United States, through the Navy Department, shipped by railroad as freight upon Government bills of lading certain quantities of armor plate from Portsmouth, Virginia, and from Bethlehem and Munhall, Pennsylvania, to Mare Island and Napa Junction, California, the particulars as to which shipments are correctly set forth in the statement marked “Plaintiff’s Exhibit A” annexed to the petition, except as to three bills of lading hereinafter described in Finding VIII.

..Ill- The transportation of the armor plate required special equipment, it being necessary to construct cradles weighing from 11,000 to 19,000 pounds on specially built bridge cars for its safe transportation. The carriers transported such special equipment and promptly returned the same with fixtures after release free to the point of origin, and the carriers were deprived of the use of such special equipment for any return loading. Each piece of armor plate so trans*651ported exceeded 10,000 pounds in weight, the weights thereof ranging from 56,760 to 131,870 pounds apiece.

IV. Of the shipments mentioned in Finding II, those occurring in 1917 were made pursuant to express contracts between the carriers and the Government in the form of advertisement, bids, and acceptances, stipulating for the rates here claimed, and in substance stated in the petition.

It was stipulated and agreed by the plaintiff and other carriers concerned in making these contracts substantially as follows:

“ Carriers agree to transport shipments in special equipment and to promptly return such equipment with fixtures after release free to point of origin for initial road, provided the United States Government will assume regular per diem rates assessed by' owners of equipment, the same due to the fact of depriving carriers of utilizing the equipment for return loading.”

The rates so offered and accepted were not in excess of any published tariff rates open to the public for like class of service, with due allowance for land grant, unless the commodity rates on articles of iron and steel, hereinafter mentioned, apply.

V. Said transportation was duly performed and bills were presented therefor by the plaintiff as the final carrier. The bills for shipments in 1917 were presented at the stipulated rates above mentioned. Some of them were settled by the accounting officer on the basis of the lower commodity rates hereinafter described, and payments thereon of $8,556.36 were made to the Director General of Railroads, who credited them to the plaintiff. The unpaid balance amounts to $11,543.17.

Others of said bills were paid by the disbursing officer of the Navy Department in the full amounts claimed at the special rates bid as above stated. The amount of these bills paid to the plaintiff direct prior to January, 1918, amounted to $81,715.12, and the Federal control of railroads having intervened, the balance of these bills was paid to the Railroad Administration on account of plaintiff between January, 1918, and April, 1918, in the amount of $16,466.11. Subsequently, in auditing the disbursing officer’s accounts, the ac*652counting officers applied to said shipments the commodity rates applying on structural iron and steel plate appearing in published tariffs of the carrier in an item under the head of “Articles of iron and steel.” This tariff item carried also the following exception: “ Note. — Rates named under head of ‘ Iron and steel articles ’ will not apply on the following-quartermaster and ordnance stores: Armor plate, deck plates, conning towers, conning-tower tubes, turret tubes, signal towers, and siding hoods. Class rates will apply on the above-mentioned articles.”

VI. In accordance with said ruling of the accounting office and the application of the said commodity rates to said shipments there was deducted from the amounts which had been paid to plaintiff and the Railroad Administration by the disbursing officer the sum of $60,995.38; that is to say, deductions were made from other accounts of the Railroad Administration in the sum of $50,781.95, and subsequently deductions were made from other bills of plaintiff after Federal control had ended amounting to $10,213.43, together aggregating the said sum of $60,995.38. These deductions from the accounts of the Railroad Administration were accounted for by plaintiff in the settlement between plaintiff and the Railroad Administration, except as to two items aggregating $3,221.85, which were not charged to plaintiff’s account by the Railroad Administration or settled by it, with the Railroad Administration, but were charged to two other roads, one, the Missouri Pacific Railroad Company in the sum of $803.31, and the other, the Union Pacific Railroad Company in the sum of $2,418.54. It does not appear that these amounts have been repaid by the plaintiff.

VII. The shipments stated in Exhibit A to plaintiff’s petition which moved in 1920 and 1921 from Munhall, Pa., to Napa Junction, Calif., on Government bills of lading were not transported under the special agreement heretofore mentioned, but were made at tariff rates subject to land-grant deductions plus applicable arbitrary. The plaintiff, being the last carrier, presented bills for all of said shipments made in 1920 and 1921 at fourth-class rates with land-grant deductions, except three shipments, on bills of lading 38599, 38608, and 38631, referred to later in Finding VIII. These *653bills were presented upon a class rate and the accounting officers applied the commodity rate on iron and steel above mentioned in Finding V, and deducted accordingly the sum of $8,405.36 from plaintiff’s bills, which resulted in paying plaintiff less than the face of its bills.

VIII. As to the three bills of lading mentioned in Findings II and VII, No. 38599, July 17,1920, and No. 38608, July 22, 1920, stated in bill F-04035, the plaintiff stated its account against the United States on the basis of iron and steel commodity rating, and payment was so made by the disbursing officer and accepted by the plaintiff under protest. A claim for $4,278.56, representing the additional amount due on basis of fourth-class rates, with land-grant deductions, was thereupon presented by plaintiff to the Auditor for the Navy Department, and by him wholly disallowed.

In the case of bill of lading No. 38361, August 11, 1920, stated in bill F-04036, plaintiff stated its account against the United States on said basis of iron and steel commodity rating, and payment was so made by the disbursing officer and was accepted by the plaintiff without protest. A claim for $1,437.06 additional was thereafter presented to the said accounting officer, who allowed thereon $11.86 and disallowed the difference of $1,425.20, said difference representing the additional amount due on the basis of fourth-class rates, with appropriate land-grant deductions.

IX. Since the filing of the amended petition the Comptroller General of the United States has reviewed certain of the settlements of plaintiff’s bills which were made by the Auditor for the Navy Department upon the basis of specific commodity rates applicable to articles of iron and steel and has allowed a total of $6,148.11 of the balance claimed in the amended petition on said bills at fourth-class rates, with land-grant deductions, aggregating $6,148.36.

X. Based upon the special rates .bid as above stated, or the fourth-class rates with land-grant deductions where there were no special rates bid, the balances that would be due for the transportation of said armor plate aggregate the sum of $92,796.03, from which is to be deducted the sum of $6,148.36 shown in Finding IX (plaintiff concedes the difference of 25 cents between that amount and the amount allowed by *654the Comptroller General), which leaves a balance of $86,647.67.

The court decided that plaintiff was entitled to recover, in part.

Campbell, *Chief*Justice,

delivered the opinion of the court:

The plaintiff and its connecting carriers during the year 1917, and again during the years 1920 and 1921, transported large amounts of armor plate for the Government from points in the East to Mare Island or other places in California. The principal question arises upon the applicability of certain rates, the contention of the Government being that commodity rates specified in the tariff should be applied and the plaintiff urging that as to part of the shipments, those made in 1917, a contract rate for the transportation was made, and as to the later shipments, those made in 1920 and 1921, a class rate and not the commodity rate was applicable.

The facts show that before making the shipment of armor plate in 1917 the officers in charge sought special rates from the carriers. The weights of the armor plates were very large, different pieces ranging from 56,750 pounds to 131,000 pounds, and none less than 10,000 pounds in weight. Their proper handling and transportation involved specially constructed cribs and alterations in the cars. These cars after discharging the armor plate were to be returned to the point of origin of the shipment in their altered condition, and thus on the return trip would not produce revenue. Rates were quoted by the carriers which were accepted. This court has held that a special rate may be agreed upon for the transcontinental carriage of armor plate, and that the commodity rate upon “iron and steel articles” is not in such case to be applied. See Atchison, *Topeka & Santa Fe Ry.*case, 59 C. Cls. 275, 288. As we there said: “ In the instant case, however, there was an agreed rate for a special service. See *Missouri Pacific R. R.*case, 56 C. Cls. 341.” The bills rendered for this service were based upon the agreed rates and were paid. Afterwards deductions were made by the *655accounting officers from bills of the Railroad Administration and from other bills of plaintiff for other services because the accounting officers held that the commodity rates should have been applied instead of the agreed special rate. The deductions made from the Railroad Administration bills were subsequently accounted for and settled (except in an instance to be later mentioned) between the Railroad Administration and the plaintiff. For these deductions the plaintiff is entitled to recover. See *Pere Marquette Co. case,*270 U. S. 320, 337. The exception just referred to is an item of $3,221.85 deducted from Railroad Administration bills, but not charged to plaintiff. For some unexplained reason this sum, divided into two items, was charged on the books of the Railroad Administration to two other companies, one of these items to each. Without showing that it has accounted for them to the Railroad Administration the plaintiff can not recover the amount. Its bill was paid originally in full, and if the Railroad Administration has not required reimbursement on account of the deductions it is plain that plaintiff has not lost anything. To the extent it has made such reimbursement or accounting it is entitled to recover.

The shipments of armor plate made in 1920 and 1921 were not upon any agreed rate as the earlier shipments had been, and upon the bills for these the accounting officers applied the commodity rate fixed in the tariff for “ iron and steel articles,” but this same tariff provided that this commodity rate would not apply to armor plate and certain other articles and that as to those a class rate would be applied. In view of the unusual character of armor plate shipments and the necessity already adverted to of specially arranged cars, and in view also of the saving note in the tariff itself, we think the class rate and not the commodity rate was applicable. See *Atchison, Topeka & Santa Fe Ry. case, supra,*pp. 287, 288. The plaintiff presented its bills from time to time to the disbursing officers or for direct settlement, but restated them on the basis of commodity rates because the disbursing officer or the auditor, as the case might be, would not recognize a right to apply a class rate to the armor plate shipment. In each case plaintiff protested against be*656ing required to accept the commodity rate (except in the case of one bill to be noted). One of its bills for transporting armor plate was presented at commodity rates. Whether it was a restated bill or not does not definitely appear. The bill was paid by the disbursing officer as presented and if does not appear that plaintiff protested or otherwise objected. Subsequently, however, the plaintiff filed with the accounting officers a supplemental bill claiming the shipment should take a class rate and not the commodity rate actually paid. The supplemental bill was considered by the accounting office and some correction in and addition to the amount of it was made, but no change was made in the classification. The question arises whether this is sufficient to take this item out of the general and established rule that bills paid as presented where payment is accepted without protest or objection may conclude a party from any further assertion of claim under them. See *Southern Pacific Co.*case, 268 U. S. 263, 268. The item in question was presented, however, by supplemental bill and was given consideration. The settlement was not treated as concluded, but was in effect treated as an unsettled matter and reopened in the accounting office. In these circumstances we think the facts refute any idea of acquiescence. See *St.*Louis, *Brownsville & Mexico Ry. case,*268 U. S. 169, 177. We think the plaintiff is entitled to recover this item less the amount paid on the supplemental bill.

Our conclusion is that plaintiff should have judgment for the amount of the deductions from its bills and those of the Railroad Administration for the transportation of armor plate in 1917, except the two items adverted to (see Finding VI), where the evidence fails to show that plaintiff has accounted to the Railroad Administration, and to have judgment for the deductions made on account of the application of the commodity rate to the other shipments of armor plate less the amounts paid or allowed to plaintiff by the accounting officers since the deductions were made, the amount of the judgment to be $83,425.82. And it is so ordered.

Moss, *Judge;*Gkaham, *Judge;*Hat, *Judge;*and Booth, Judge, concur.