Erie Railroad v. United States, 156 F. Supp. 908

156 F. Supp. 908 | Ct. Cl. | 1957

Whitaeer, Judge,

delivered the opinion, of the court:

This case has been referred to us by the House of Representatives under 28 U. S. C. 1492 and 2509, pursuant to the House Resolutions set out in findings 3 and 4, for such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand as a claim legal or equitable against the United States, and the amount, if any, legally or equitably due from the United States to the plaintiffs.

Section 1492 authorizes us to render judgment on a claim so referred if we have jurisdiction of the claim under other acts of Congress. We would, of course, have jurisdiction of a claim such as plaintiffs’ present claim, except for the fact that the statute of limitations within which claims against the United States must be presented in this court has long since run. It is not within our power, therefore, to render judgment on the claim, but, of course, the running of the statute is not a bar to the allowance of the claim by Congress. However, we know of no special circumstances in this case which would justify Congress in doing so. The facts respecting plaintiffs’ delay in presenting their claim follow.

On June 16, 1945, the National Distillers Products Corporation withdrew from bond 8,080.90 wine gallons of alcohol, equivalent to 15,353.60 proof gallons, and shipped them from Peoria, Illinois, consigned to New England Distillers, Inc., at Clinton, Massachusetts. In transit the liquors were destroyed in a railroad wreck.

The National Distillers Products Corporation filed a claim with the Erie Railroad Company in the total amount of $147,730.62, covering the value of the alcohol lost in the sum of $9,135.39, the internal revenue tax that had been paid ¿hereon of $138,182.40, and the prepaid freight of $412.83. Subsequently, on December 20, 1945, the National Distillers Products Corporation filed with the District Director of Internal Revenue a claim for refund of the taxes paid on the liquors lost. This claim was denied by the Commissioner of Internal Revenue on January 16, 1946, on the ground that there was no provision of law authorizing the refund of internal revenue taxes which had been properly paid on distilled spirits, and that the taxes in question had been properly paid. Following this, the Erie Railroad Company on March 6, 1946, paid the National Distillers Products Corporation the full amount of its claim of $147,730.62.

Notwithstanding rejection of the claim for refund of the taxes paid on January 16, 1946, no further effort was made by anyone to recover them until the introduction in the House of Representatives of H. R. 5918 on April 27, 1955. Presumably, this was because the parties did not believe that their claim had sufficient validity to justify any further effort to secure its allowance.

On April 3, 1950, this court decided the case of Stephano Bros. v. United States, 116 C. Cls. 503, in which we held that a shipper of tobacco was entitled to recover the value of stamps affixed to a shipment of cigarettes which had been destroyed in a railroad wreck. This was followed by our decision in Philip Morris v. United States, 120 C. Cls. 703, decided November 6, 1951, in which we reaffirmed our previous holding. These decisions apparently encouraged plaintiffs to make a further effort to recover the tax paid on this alcohol. At any rate, in their briefs they rely largely on these cases in support of their claim.

But, even if it could be said that our decision in Stephano Bros. v. United States, supra, recognized a right to recover excise taxes on tobacco not previously recognized, and if this decision could be applied to plaintiffs’ claim, as they seek to do, nevertheless, it appears that they waited much longer than the statutory period before filing their petition in this court. While the statute of limitations applicable to most claims against the United States is six years, the statute applicable to the recovery of internal revenue taxes is two years. (Section 3772 of the Internal Revenue Code of 1939 ; 26 U. S. C. 1952 ed. sec. 3772.) The time for filing suit for the recovery of these taxes, therefore, expired some eight years before the suit was filed in this court, and four years after our decision in Stephano Bros. v. United States, supra.

Whether so long a delay in presenting any claim which plaintiffs may have should be waived by Congress, even if plaintiffs have a valid claim, is of course a matter for Congress to determine.

But, as we will more fully point out in a discussion of the claim on the merits, wo do not think plaintiffs’ claim can possibly be brought within our decisions in the Stephano Bros., and Philip Morris cases, supra.

Second. We are further of opinion that the National Distillers Products Corporation is not entitled to recover the taxes paid on this liquor, notwithstanding its destruction. Of course if the National Distillers Products Corporation is not entitled to recover them, the plaintiffs are not entitled to recover, because the only claim they could have is derived from the claim of National Distillers Products Corporation.

Section 2800 of the Internal Revenue Code of 1939 levies a tax on all distilled spirits “produced in or imported into the United States” at a certain rate, “to be paid by the distiller or importer when withdrawn from bond.” Subsection (c) of section 2800 provides, “the tax shall attach to the distilled spirits * * * as soon as this substance is in existence as such.” Hence, the tax is one on the production of distilled spirits, and not a consumer’s tax as plaintiffs insist. This is clearly recognized by the decisions of the Supreme Court in Thompson v. United States, 142 U. S. 471; United States v. One Ford Coupe, 272 U. S. 321; and United States v. Rizzo, 297 U. S. 530, as well as by other cases.

Therefore, at the moment the production of distilled spirits is complete, liability for the tax accrues. However, if spirits are distilled in bond, and kept in a bonded warehouse for a time, the tax is not payable until they are withdrawn from bond, but at that time the tax must be paid.

Therefore, when the National Distillers Products Corporation withdrew this alcohol from bond, everything had occurred to fix liability for the tax. The amount of that liability had been determined, and the time for payment of the tax had arrived. The tax was paid and the transaction was closed. Anything that happened to the liquor thereafter had no effect on the amount of taxes owing to the Government on account of the production of these liquors.

Although the tax is on the production of the distilled spirits and accrues when production is complete, still, the law makes certain allowances for loss of the liquor after production and while it remains in bond. An allowance is made for leakage or evaporation, or if the liquor is otherwise lost while on the premises of a registered distiller and before deposit in an internal revenue bonded warehouse, or if lost while being transferred between buildings constituting a bonded warehouse, or while being transferred by a common carrier from a distillery to a bonded warehouse, or between bonded warehouses, or if the spirits are withdrawn for use in the fortification of sweet wines, and are lost while stored in bonded winery premises, or if they are lost by theft, or if they are voluntarily destroyed by the distillers because unfit for beverage purposes. In all such cases the Commissioner of Internal Eevenue is authorized to abate the tax on the liquor so lost, that is to say, the liability for the tax is extinguished. And, if taxes have been inadvertently paid on spirits so lost, subsection (c) of section 2901, as amended by the Act of April 8, 1942, permits the refund of them. But this, by its terms, refers only to taxes which may have been paid subsequent to the loss or destruction of the liquor in the manner set out above. It has no application to a loss of liquor after payment of the tax.

When the spirits have once been withdrawn from the warehouse, and the tax has been paid, no provision is made in the law for loss or destruction of them thereafter. The only provision for refund of taxes paid on spirits lost and destroyed is for spirits lost or destroyed while under bond.

No court had ever held to the contrary until the District Court for the Western District of Kentucky decided Stitzel-Weller Distillery v. United States, 82 F. Supp. 50, affirmed, 180 F. 2d 357.¹ In this case the court said that recovery might be had for a loss of spirits occurring after the payment of the tax if at the time the liquor was still in the possession and under the supervision of the Government in a bonded warehouse. This was a departure from the opinion that the loss or destruction must have occurred before the tax was paid, and when this decision was called to the attention of Congress, it very promptly added to section 2901 (c), providing for refunds, the following:

Nothing in section 2901, as hereby amended, or as heretofore amended, shall be construed to authorize refund of the tax where the loss occurred after the tax was paid.

This was section 3 of the Act of February 21,1950, c. 36, 64 Stat. 6.

The Internal Kevenue Code of 1954 is quite as explicit. It reads at section 5011 (a) (3) :

* * Ü! * *

No tax shall be remitted or refunded under this subsection where the loss occurred after the tax was determined (as provided in section 5006 (a)) and the spirits withdrawn from bond.

In short, liability for the tax accrues when production of the distilled spirits is complete, and it is payable when the spirits are withdrawn from bond, less such amount of the tax as may have accrued on spirits lost in certain ways before withdrawal from bond. But after withdrawal from bond and payment of the tax, Congress has expressly forbidden the remission or refund of taxes on spirits thereafter lost or destroyed.

But plaintiff says that section 3113 (a) of the Internal Kevenue Code of 1939 permits the refund of taxes lost by a casualty or other unavoidable cause occurring during distillation, or redistillation, denaturation, withdrawal, piping, shipment, warehousing, storage, packing, transfer, or recovery, of any such alcohol, and since these spirits were being shipped, it may recover the tax on the spirits lost in this railroad wreck. f,We are, however, of opinion that all of the processes mentioned in the section refer to processes before the spirits are withdrawn from bond. No court has ever held to the contrary.

Most of the processes mentioned of necessity take place before withdrawal from the bonded warehouse, e. g., distillation, redistillation, denaturation, piping, warehousing, storage. Hence, it would seem to follow that the “shipment” in mind was a shipment from distillery to bonded warehouse, from one building in a bonded warehouse to another, or from one bonded warehouse to another, or any shipment while the spirits were still under bond.

This must be the shipment that was in mind, because the bond is given to secure payment of the tax that has already accrued' on the spirits, and when the tax is paid the bond is discharged; the liquors, leaving the custody of the Government, become the property of the owner to do with them what he please, and, of course, at his own risk.

Again, this must be the proper construction of the section, because otherwise it would be in express conflict with section 2901 (c), as amended, as we have pointed out above. Congress, of course, did not mean to prohibit the refund by one section, and allow it in a succeeding section of the same statute. In enacting the Internal Revenue Code of 1939 it ■ did not mean to allow a refund of taxes only on spirits lost before the tax was paid, and in a succeeding section allow a refund on account of spirits lost or destroyed both before and after payment of the tax.

This is made quite clear by the 1954 Internal Revenue Code. Section 2901 (c) of the 1939 Code appears in the 1954 Code as section 5011 (a) (3). This section expressly prohibits the refund of a tax where the loss occurs after the tax is determined and the spirits withdrawn from bond. Section 3113 (a) is carried into the 1954 Code as subsection (c) of the same section 5011. Congress could not have intended both to prohibit and to allow the refund by what was said in the same section.

We have no doubt that this is the proper construction of section 3113 (a) of the 1939 Code. But, whether it is or not, this section is of no help to plaintiffs because it is limited to domestic alcohol produced at an industrial alcohol plant.

Chapter 26 of the Internal Revenue Code relates to the tax on liquor. Subchapter A relates to the tax on distilled spirits, subchapter B relates to wines, and subchapter C relates to industrial alcohol. Section 2901, relating to losses of distilled spirits, is contained in subchapter A, containing all the provisions specially applicable to-distilled spirits; section 3113 is contained in subchapter C, relating to industrial alcohol.

In the 1954 Code the provisions of both section 2901 and section 3113 are found in section 5011. Section 3113 of the 1939 Code is subsection (c) of section 5011 of tbe 1954 Code, and tbis subsection states that it relates to alcohol produced ■ at an industrial alcohol plant.

The distilled spirits produced at the distillery of the National Distillers Products Corporation were not produced at an industrial alcohol plant. The National Distillers Products Corporation produced distilled spirits for beverage purposes.

Third. It is clear that plaintiffs’ claim is not covered by our decisions in the Stephano Bros., and Philip Morris cases. Recovery of the taxes paid on the tobacco shipped in the Stephmo case and lost in a railroad wreck was allowed under a provision applicable alone to tobacco, and not to liquor, which permits the redemption of stamps on “tobacco, snuff, cigars, or cigarettes winch, after removal from factory or customhouse for consumption or sale, the manufacturer or importer withdraws from the market.” We held that the cigarettes lost in this wreck had been withdrawn from the market within the meaning of this statute, 26 U. S. C. 2198; but, as stated, this statute has no application whatever to distilled spirits.

The provisions of the Internal Revenue Code applicable to tobacco have no application to liquor, and the provisions applicable to liquor have no application to tobacco. They have no relation one to another, no analogy, no affinity, no consanguinity; they are not on speaking terms.

The Government raises other defenses to plaintiffs’ claim, but we do not discuss them because we are so clearly of the opinion that plaintiffs are not entitled to recover on the merits, irrespective of the statute of limitations. We know of no special considerations which would justify making an allowance to plaintiffs not enjoyed by others in a similar situation.

We are of opinion that the National Distillers Products Corporation has neither a legal nor an equitable claim against the United States, and, a fortiori, the Erie Railroad Company and the Atlantic Mutual Insurance Company have neither a legal nor an equitable claim against the United States.

This opinion, together with the findings of fact, will be certified to the Congress pursuant to House Eesolution 402 of the 84th Congress, 2d Session.

It is so ordered.

Washington, Circuit Judge, sitting by designation; Madden, Judge; Littleton, Judge; and Jones, Chief Judge, concur.

FINDINGS OP PACT

The court, having considered the evidence, the report of Commissioner Mastín G. White, and the briefs and argument of counsel, makes findings of fact as follows:

1. The petition in this case was filed on April 2, 1956 by the Erie Eailroad Company and the Atlantic Mutual Insurance Company. Erie seeks to recover $30,000 (plus interest) and Atlantic' Mutual seeks to recover $108,182.40 (plus interest) from the United States. These sums equal the amount of the internal revenue tax paid to the United States by another company on a quantity of grain alcohol that was lost in a train wreck.

2. The Erie Eailroad Company and the Atlantic Mutual Insurance Company are corporations organized and existing under the laws of the State of New York. They are now, and for long periods of time they have been, engaged in the respective businesses indicated by their corporate names.

3. The proceedings in this court were instituted after the House of Eepresentatives had agreed to H. Ees. 402, 84th Congress, on March 6,1956. That resolution referred H. E. 5918, 84th Congress, to the Court of Claims pursuant to 28 U. S. C. 1492 and 2509, and instructed the court to:

* * * report to the House, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand, as a claim legal or equitable, against the United States, and the amount, if any, legally or equitably due from the United States to the claimant.

4. H. E. 5918, 84th Congress, provided in pertinent part as follows:

That the Secretary of the Treasury is authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to the Erie Railroad Company and Atlantic Mutual Insurance Company et ah, the sum of $138,182.40 with interest. The payment of such sum shall be in full settlement of all claims against the United States for refund of Federal distilled spirits tax paid on fifteen thousand three hundred fifty-three and sixty one-hundredths proof gallons of grain alcohol owned by National Distillers Products Corporation, and lost from tank car CATX51703 as a result of the derailment of such tank car on June 21, 1945, at Burns, New York. * * *

5. On June 16,1945, the National Distillers Products Corporation loaded a railroad tank car, numbered GATX 51703, at its plant in Peoria, Illinois, with 8,080.90 wine gallons of 190-proof grain alcohol that was eligible to be used for beverage purposes. The 8,080.90 wine gallons of alcohol were the equivalent of 15,353.60 proof gallons. After being loaded, the tank car was delivered to the Nickel Plate Road for transportation by rail via the Nickel Plate Road, the Erie Railroad, and the New Haven Railroad to New England Distillers, Inc., at Clinton, Massachusetts.

6. The carload of alcohol referred to in finding 5 was owned by the National Distillers Products Corporation. The shipment of the alcohol from Peoria did not involve any change in the ownership of the alcohol, as the consignee was to process the alcohol further for a fee and then deliver it to a subsidiary of the National Distillers Products 'Corporation.

7. (a) The alcohol mentioned in the previous findings had a value of 59y2 cents per proof gallon, f. o. b. Peoria, Illinois, or a total value of $9,135.39 for the 15,353.60 proof gallons involved in the shipment.

(b) Prior to the shipment of the alcohol from Peoria, the National Distillers Products Corporation paid to the United States an internal revenue tax on the alcohol at the rate of $9 per proof gallon, or a total amount of $138,182.40 on the 15,353.60 proof gallons involved in the shipment. The payment of the internal revenue tax by the consignor was in accordance with established procedures.

(c) Freight charges in the amount of $412.83 were prepaid by the National Distillers Products Corporation.

8. (a) The carload of alcohol mentioned in the previous findings was covered by a uniform straight bill of lading. It provided in section 1 (among other things) that: '

The carrier * * * in possession of any of the property herein described shall be liable as at common law for any loss thereof * * * except * * * any loss * * * caused by the act of God, the public enemy, the authority of law, or the act or default of the shipper or owner, or for natural shrinkage. * * *

(b) It was provided in section 2 of the bill of lading that any claim based on the loss of the property must be filed in writing “within nine months after a reasonable time for delivery has elapsed.”

9. (a) While tank car GATX 51103, containing the 8,080.90 wine gallons (15,353.60 proof gallons) of alcohol belonging to the National Distillers Products Corporation, was in transit and in the possession of the Erie Railroad Company, it was derailed as part of a train wreck at Burns, New York, on June 21, 1945. The entire contents of the car were lost as a result of the wreck.

(b) A total of 33 other cars in the same train were derailed along with tank car GATX 51703 in the wreck that is mentioned in paragraph (a) of this finding. The wreck was caused by a broken truck side in one of the cars.

(c) The National Distillers Products Corporation was not indemnified by insurance for the value of the alcohol that was lost in the wreck or for the amount of the internal revenue tax that had been paid on the alcohol.

10. (a) 0n June 27, 1945, which was six days after the derailment of tank car GATX 51703 and the loss of its contents, the National Distillers Products Corporation loaded another railroad tank car, numbered GATX 15369, with 8,032.50 wine gallons of 190-proof grain alcohol (or 15,261.70 proof gallons) at Cincinnati, Ohio, and consigned it to New England Distillers, Inc., at Clinton, Massachusetts.

(b) The National Distillers Products Corporation paid to the United States an internal revenue tax of $9 per proof gallon on the alcohol that was shipped in tank car GATX 15369, or a total amount of $137,355.30 on the 15,261.70 proof gallons contained in that tank car.

11. On. July 31,1945, the National Distillers Products Corporation filed with the Erie Railroad Company a claim in the total amount of $147,730.62 to cover the value of the alcohol that was lost when tank car GATX 51703 was derailed ($9,135.39), the amount of the internal revenue tax that had been paid on the alcohol ($138,182.40), and the amount of the prepaid freight charges ($412.83). The original bill of lading that covered the shipment of the alcohol in tank car GATX 51703 was submitted by National Distillers to Erie along with the former’s claim.

12. (a) On December 20, 1945, the National Distillers Products Corporation filed with the District Director of Internal Revenue for the 8th District, Illinois, a claim for the refund of the internal revenue tax in the amount of $138,-182.40 that had been paid on the 15,353.60 proof gallons of alcohol lost as a result of the derailment of tank car GATX ■51703 on June 21,1945.

(b) The claim of the National Distillers Products Corporation mentioned in paragraph (a) of this finding was rejected by the Deputy Commissioner of Internal Revenue on January 16, 1946. The reason given by the Deputy Commissioner for the rejection of the claim was that:

There is no provision of law authorizing the refund of internal revenue taxes which have been properly paid on distilled spirits. .* * *

13. (a) The claim of the National Distillers Products Corporation against the 10 fie Railroad Company (see finding 11) was paid by Erie in the full amount of $147,730.62 on March 6, 1946.

(b) Other claims were also filed against and paid by the Erie Railroad Company because of the train wreck mentioned in finding 9. Erie paid out a total of $205,115.46 on all the claims arising out of this wreck, including the claim of the National Distillers Products Corporation.

14. At the time of the train wreck mentioned in finding 9, the Erie Railroad Company was protected by insurance policies in the aggregate amount of $250,000 that covered Erie’s legal liability for all damages in excess of $30,000 arising out of that incident. The nam.es of the insurance companies participating in the coverage and the share of the $250,000 coverage provided by each company are shown below:

Coverage for damages in excess of $30,000 and up to $130,000—

Atlantic Mutual Insurance Co-$25,000

Lloyd’s Underwriters_ 35, 000

Fireman’s Fund Insurance Co_ 10, 000

Hanover Fire Insurance Co_ 10, 000

Potomac Insurance Co_ 5, 000

Norwich Union Fire Insurance Society, Ltd_ 7, 500

Sun Insurance Office, Ltd_ 3, 000

Providence Washington Insurance Co_,_ 4,500

Total_ 100,000

Coverage for damages in excess of $130,000 and up to $280,000—

Atlantic Mutual Insurance Co_$37,500

Lloyd’s Underwriters_ 52, 500

Fireman’s Fund Insurance Co_ 15,000

Hanover Fire Insurance Co_ 15, 000

Potomac Insurance Co_ 7,500

Norwich Union Fire Insurance Society, Ltd_ 6, 750

Sun Insurance Office, Ltd_ 15, 750

Total_ 150, 000

15. (a) The insurance policies of the Atlantic Mutual Insurance Company, Fireman’s Fund Insurance Company, Hanover Fire Insurance Company, Potomac Insurance Company, Norwich Union Fire Insurance Society, Ltd., Sun Insurance Office, Ltd., and Providence Washington Insurance Company mentioned in finding 14 stated in identical language that each of them covered:

* * * the Legal Liability of the assured [Erie Railroad Company] whether as common carrier * * * or otherwise, under uniform bills of lading * * * for all physical loss, damage or expense to shipments of every nature and description whatsoever from the time such property becomes at risk of the assured and continuous^ thereafter during transit or otherwise until the liability of the assured shall have ceased.

(b) It was stated in each of the policies issued by Lloyd’s Underwriters that it covered:

Legal Liability of the Assured [Erie Railroad Company] as common carriers * * * or otherwise under uniform bills of lading or shipping receipts for all physical loss damage or expense as per Warranty Company.

16. The insurance policies mentioned in finding 14 provided as follows regarding the subject of subrogation:

The assurers shall be subrogated to all the rights which the assured [Erie Railroad Company] may have against any other person or entity, in respect of any payment made under this policy, to the extent of such payment, and the assured shall, upon the request of the assurers, execute all documents necessary to secure to' the assurers such rights.²

17. (a) After paying out a total of $205,115.46 to shippers, including $147,730.62 to the National Distillers Products Corporation, because of the damages suffered as a result of the train wreck mentioned in finding 9, the Erie Railroad Company submitted claims to the insurance companies for reimbursement under the insurance policies mentioned in finding 14.

(b) Four separate claims, in the respective amounts of $25,000, $17,318.65, $898.84, and $561.38, were submitted by the Erie Railroad Company to the Atlantic Mutual Insurance Company.

(c) In connection with the submission of the claims for .$25,000 and'$17,318.65 mentioned in paragraph (b) of this finding, the Erie Railroad Company executed documents which (among other things) stated in identical language that:

In consideration of the payment to be made hereunder WE hereby subrogate to said insurers our right, title and interest in and to the property for which claim is being made hereunder * * *.

(d)In connection with the submission of the claims for $898.84 and $561.38 mentioned in paragraph (b) of this finding, the Erie Railroad Company executed documents which included the following provision:

In consideration of the payment to be made hereunder, we hereby assign and transfer to the said Insurers each and all claims and demands against any person, persons, corporation or property, arising from or connected with such loss or damage, (and the said Insurer is subro-gated in the place of and to the claims and demands of the undersigned against said person, persons, corporation or property in the premises), to the extent of the amount above named * * *.

(e) The evidence does not show whether subrogation provisions similar to those quoted in paragraphs (c) and (d) of this finding were included in any of the documents that the Erie Railroad Company executed in connection with the submission of claims to insurance companies other than the Atlantic Mutual Insurance Company.

18. (a) Payments were made by the several insurance companies to the Erie Railroad Company in the respective amounts indicated below:

Atlantic Mutual Insurance Co-$43,778, 87

Lloyd’s Underwriters- 61,290. 41

Fireman’s Fund Insurance Co- 17, 511. 55

Hanover Fire Insurance Co- 17, 511. 55

Potomac Insurance Co_ 8, 755. 7f

Norwich Union Fire Insurance Society, Ltd_!_ 10, 880.20

Sun Insurance Office, Ltd- 10,887.12

Providence Washington Ins. Co- 4,500.00

Total_175,115.46

(b) The aggregate reimbursement received by the Erie Railroad Company under its insurance policies lacked $30,000 of covering the total amount that it had paid to shippers, including the National Distillers Products Corporation, because of the damages arising from the train wreck mentioned in finding 9. This is the basis for the claim asserted by the Erie Railroad Company against the United States in the present proceedings.

(c) The share of the Atlantic Mutual Insurance Company in the total of $175,115.46 that was paid by all the interested insurance companies to the Erie Railroad Company amounted to $43,778.87, rather than the amount of $108,182.40 claimed by the Atlantic Mutual Insurance Company in these proceedings.

19. Under the date of October 31, 1956, which was after the filing of the petition in this court, the National Distillers Products Corporation executed a document designated as an “Assignment and Subrogation Agreement”. This document provides as follows:

For and in consideration of the sum of One Dollar ($1.00) the receipt of which is hereby acknowledged, and for further consideration heretofore paid by Erie Bailroad Company, we hereby assign to the Erie Bail-road Company all rights, title and interest in and to the claim filed with the Internal Bevenue Service (Treasury .Department) under date of December 20,1945, covering the refund of One Hundred Thirty Eight Thousand One Hundred Eighty Two Dollars and Forty Cents ($138,182.40) representing tax paid on 15353.6 proof gallons of distilled spirits (EBP) lost and/or destroyed from tank car GATX 51703 while in transit from our plant in Peoria, Illinois to the New England Distillers Inc. at Clinton, Massachusetts due to a railroad wreck at Burns, New York on June 21, 1945.

This claim was paid in full by Erie Bailroad Company on March 4, 1946 to the assignor herein, National Distillers Products Corporation.

In addition to the full assignment given herein, we hereby grant to the Erie Bailroad Company full and complete rights of subrogation thereby conveying all rights at law and in equity to maintain suit in the name of Erie Bailroad Company or its assigns, agents or representatives, insurance carriers or to any persons nominated by said Erie Bailroad Company.

1 This case does not help plaintiff because it was based on the fact that, while the tax had been paid, the spirits had not been released from bond, and, hence, were still under the control of the Government.

2 There were variations in capitalization and punctuation among the several policies; and the subrogation provision in each policy of the Atlantic Mutual Insurance Company contained the words “claim or” between “any” and “payment”. Each policy of Lloyd’s underwriters incorporated by reference the subrogation provision from the related policies of the other companies.