178 Ct. Cl. 226 | Ct. Cl. | 1967
Dissenting Opinion
dissents. (See dissent following the conclusion of the commissioner’s opinion.)
OPINION OE COMMISSIONER
Plaintiff seeks in this action to recover freight charges involving one shipment of explosive projectiles and 48 shipments of propelling charges for 120-mm antiaircraft guns, without projectiles, which moved over plaintiff’s lines and the lines of other carriers between
After the shipments had been completed, plaintiff, as the final and delivering carrier, billed the transportation charges to defendant who paid them as claimed. Thereafter, following an audit by the General Accounting Office which determined that overpayments of said bills had been made, defendant demanded refunds from plaintiff. Upon plaintiff’s failure to make such refunds, defendant made various deductions from other charges for transportation services owed plaintiff. The earliest of these deductions occurred on July 7, 1959 and the last on November 1, 1961. As a result of defendant’s action in making such deductions, plaintiff timely brought this suit seeking to recover the difference between the rates it considers applicable to the shipments involved herein and the rates applied by defendant.
The parties have stipulated that for purposes of this suit, the 49 shipments involved may be divided into five categories. (See finding 4.) With the exception of the one Category 5 shipment (mentioned in findings 4(e), 9, and 10, infra), which was described in the bill of lading as “Explosive Projectiles” and concerning which there is no controversy between the parties with respect to the rate and amount due, all of the shipments, i.e., the 48 shipments in dispute here, were described on the bills of lading therefor as so many boxes of “Smokeless Powder For Cannon.” However, the description was supplemented on the bills of lading by various words and abbreviations indicating that the shipments consisted of propelling charges for the 120-mm antiaircraft gun in the M24 cartridge case, and the commodity shipped was identified by the code designation “P5ULA”, which designation is particularly significant in determining the true identity of the articles shipped. (See finding 10, infra.)
The facts concerning the rates which defendant applied to the several categories of shipments in dispute in computing
Plaintiff asserts that the classification and rates applied by defendant to the commodity shipped are inapplicable because the commodity in question did not consist of either “blank” cartridges, or “fixed” ammunition without projectiles. Plaintiff, as discussed in more detail hereinafter, contends that class, exception, and quotation ratings on “smokeless powder” published in TCFB 38-F, TCFB 38-G, and TCFB Section 22 quotation 13A Series, are properly applicable to subject shipments. These rates are higher than those applied by defendant.
The parties have stipulated that if the rates applied by plaintiff for all five categories of shipments are held to be applicable, plaintiff is due the sum of $15,704.30 from defendant; that if the rates applied by defendant for the four categories of shipments in dispute are held applicable, defendant is entitled to recover from the plaintiff the sum of $4,857.02, less $1,314.44 due plaintiff for the shipment in Category 5, or a net amount due the defendant of $3,542.58; and that if the rates sought are held applicable in part and inapplicable in part, the exact amount due one party by the other shall be determined according to Buie 47(c) of the Buies of the Court.
There is no dispute between the parties as to what was actually transported. They agree that the commodity shipped was the propelling charge portion of a round of service ammunition for the 120-mm (4.7 inch) antiaircraft
Plaintiff asserts that in resolving the issues of tariff application involved in the instant case, the pertinent rule of construction is that a tariff, like any other legal document, should be interpreted and applied according to the language used. Plaintiff places a great deal of emphasis on the intended military use of the commodity shipped in identifying it from a strictly ordnance standpoint. Plaintiff argues that Items 1830, 1835, and 16410 of Consolidated Freight Classification (CFC) No. 16, supra, considered together, establish that Item 1835 was not intended to apply to the commodity shipped because the latter item names a Class 4 rating on “Cartridges, cannon, blank.” It is plaintiff’s position that Item 1835 applies only to “blank” cartridges or ammunition; that the commodity shipped did not consist of “blank cartridges for camion”, but rather the propelling charge for a complete round of service ammunition; that the propelling charge was designed and is utilized solely for the purpose of expelling projectiles from 120-mm antiaircraft guns; and that blank ammunition is not used for such purpose but to simulate artillery fire, deliver salutes, and fire the morning and evening gun (a fact with which defendant does not disagree).
Plaintiff argues that the commodity shipped, i.e., the propelling charge, is not “fixed” ammunition because whether ammunition is, or is not, “fixed” depends upon whether the cartridge case is permanently attached to the projectile, or as stated in plaintiff’s brief, “[it] depends upon the relationship between the propelling charge explosive train, and the bursting charge explosive train.”
On the basis of the foregoing, plaintiff concludes that the commodity shipped was neither “blank” ammunition nor “fixed” ammunition, and that it should be classified for transportation purposes as “smokeless powder for cannon” and rated as Class 1. In support of the aforestated position, plaintiff asserts that the propelling charge for 120-mm cannon
COMBINATION ARTICLES
When not specifically classified, articles which have been combined or attached to each other, will be charged at the rating for the highest classed article of the combination, and on shipments subject to CL [carload] rating the minimum weight will be the highest minimum weight provided for such highest rate or rating.
Defendant does not contend that the propelling charge in the cartridge case is “blank ammunition” as such term is used in the military. But defendant does dispute that Item 1835 of CFC No. 16 applies only to articles embraced within the ordnance term “blank ammunition”, and disagrees that the rates applicable to bulk shipments of smokeless powder should be supplied to the commodity shipped.
In summary, it is the position of the defendant that although the commodity shipped was described on the bills of lading as “Smokeless Powder For Cannon”, such description was incorrect; that it is axiomatic in transportation law that the bill of lading description is not controlling, the applicable rule being that the “true nature of the article shipped governs its classification”; that the identity of an article of ammunition from an ordnance standpoint and the intended military use thereof are not determinative of the rate or rating applicable to the commodity; that the documentary material and other evidence of record identifies the commodity shipped, and shows that for transportation purposes it is “Ammunition For Cannon Without Projectile.”
In support of the aforestated position, defendant argues that with respect to certain shipments, the Class 4 rating published in Item 1835 of CFC No. 16 for “Cartridges, cannon, blank” applies to the commodity, since that description is the same as “Ammunition for Cannon Without Projectile,” and that the article shipped is correctly described for trans
Defendant contends that with respect to certain other shipments, the commodity rates on “Ammunition, fixed, for Cannon * * * without projectiles” are applicable. Defendant argues that the commodity shipped is in fact ammunition for cannon without projectiles; that the commodity is either “fixed” ammunition for cannon without projectile within the meaning of the Commodity Tariff or that the tariff is ambiguous ; and that any ambiguity in the tariff should be resolved in defendant’s favor.
Defendant contends that Rule 18 of the classification known 'as Combination Article Rule, supra, cannot be invoked unless the article being shipped is not specifically classified, and that the rule is not applicable to the commodity shipped as it is specifically classified as “Cartridges, cannon, blank”, which, as noted before, defendant claims is, for transportation purposes, the same as “Ammunition For Cannon Without Projectile.”
Certain technical manuals introduced in evidence give a technical ordnance description of the commodity shipped and refer to an Ordnance Supply Catalog, dated June 10, 1944 (see Defendant’s Exhibit No. 5), in which various items of ordnance are identified under the Ammunition Inspection Code. The code “P5ULA” clearly identifies the commodity in standard ordnance nomenclature as “Charge, propelling (in Case, Cartridge, M24), 120-mm gun Ml.” The catalog indicates that the correct ICO marking required for said article under the Explosives and Dangerous Articles Tariff is “Smokeless Powder for Cannon.” However, the same catalog contains an illustration identified as “Bepresentative marking of packing boxes for 120-mm gun, Ml ammunition,” which shows the marking required by ICC regulations as “Ammunition For Cannon Without Projectile.” Department of the Army Supply Catalog, entitled “Ammunition for Antiaircraft Artillery”, dated February 1951, describes ordnance under the code P5UDA as “Charge, propelling, M15, for 120-mm gun”, and shows that the required ICC
It is clear from the foregoing and the testimony presented during the trial, that the Ordnance Supply Catalog, dated June 10, 1944, supra, was in error in stating that the required ICC marking for the commodity under the Explosives and Dangerous Articles Tariff was “Smokeless Powder For Cannon that such designation is used only in connection with shipments of bulk smokeless powder (which is not the case here); and that the correct ICC marking under said Tariff for the article identified by the code P5ULA should have been indicated as “Ammunition For Cannon Without Projectile (s)This is not to say that the aforementioned Tariff governs the rate, but since it was published to guard carriers and the public against improper handling of shipments of explosives, it is helpful as a guide in determining the correct transportation terminology of the commodity as opposed to ordnance terminology thereof.
The identification of the true nature of the commodity shipped is obviously of prime importance because it is the true description of a shipment which governs the rate and a bill of lading description may not defeat the legal rate. See Chicago, Burlington and Quincy RR Co. v. United States, 73 Ct. Cl. 250, 261 (1931), cert. denied 287 U.S. 599 (1932). In identifying the commodity in dispute here for purposes of classification, one is forced to choose between the identity of the commodity from a purely ordnance standpoint, and from a transportation standpoint. In my opinion, the primary use doctrine, as advocated by plaintiff, and as applied by this court in Union Pacific Railroad Co. v. United States, 117 Ct. Cl. 534, 91 F. Supp. 762 (1950), is of no assistance because this case cannot be resolved by merely deciding that the commodity was not intended to be used as “blank” ammunition. The decision must rest on the identity historically ascribed to the commodity by freight classifications and tariffs, and it should be kept in mind that these are published by the railroads — not by the Government.
It is clear from the record that although the articles shipped were described on the bills of lading as “Smokeless Powder For Cannon”, such description was incorrect and did
In order to be capable of fmictioning in the field, a complete round of ammunition for the 120-mm gun must consist of the propelling charge, the fuse, the primer, and the projectile. Obviously, absent any of these components, the complete round of ammunition cannot be fired. However, the absence of the projectile during shipment does not render the ammunition as a whole ineffective for its intended use.
The ammunition for the 120-mm gun is considered to be a form of “separate-loading” ammunition known as “separated” ammunition. It is characteristic of separated ammunition that the projectile and the propelling charge therefor are packed and shipped separately, although they are loaded into the gun in one operation. The absence of the projectile from the cartridge case containing the propelling charge portion of the round of ammunition for the 120-mm gun merely reduces the hazard incident to the shipment, but does not alter the true identity of the commodity shipped. It is no less “ammunition for cannon.”
In order that the plaintiff’s position may be better understood, it is considered advisable to further discuss the evidence of record relating to the question of whether the ammunition involved is “blank” or “fixed.”
BLANK AMMUNITION
In arguing that the commodity shipped is not “blank” ammunition, plaintiff points out the undisputed fact that it consisted of the propelling charge for a complete round of service ammunition for 120-mm cannon, containing 24 pounds of smokeless powder; that, on the other hand, blank ammunition contains from between .87 pounds to 2.0 pounds of black powder per round and was not manufactured for 120-mm cannon during World War II; and that the black powder used in blank ammunition is not suitable for the propelling charge in 120-mm ammunition because of its flash and water-absorbing propensities.
Plaintiff also contends that but for the existence of the 24 pounds of smokeless powder inside the cartridge cases involved in this action, the rates for Item 1830 of CFC No. 16, “Cartridge cases (cartridge shells), cannon, empty, primed, loose or in packages,” would be applicable. Plaintiff seeks to apply to the commodity the meaning generally understood hi the particular trade or industry and resorts to the ordnance “trade” for the meaning of the terms which plaintiff contends only have application in that trade.
Plaintiff further contends that since empty cartridge cases for cannon are rated Class 3 and the rate sought to be applied by the defendant is Class 4, it makes little sense that cartridge cases filled with smokeless powder would be rated at Class 4, a lower rate, when the filler by itself is rated Class 1, a higher rate. Under this reasoning, I do not see how Item 1835 of
It is my opinion that there is also another and more acceptable basis upon which the applicability of the rates may be determined, namely, that, notwithstanding the meaning of “blank” ammunition as advanced by plaintiff, the rate classifications published by the railroads have long reflected a meaning for that term which is synonymous with “Ammunition for cannon without projectile,” which admittedly is not listed as such in CFC No. 16, supra. An examination of the history and evolution of the term “Cartridges, camion, blank”, named in Item 1835 of CFC No. 16, upon which defendant relies in justification of the rates it applied, confirms the above conclusion.
The predecessors of the term “Cartridges, cannon, blank,” as it appears in Item 1835 of CFC No. 16, are items 12, 14 and 17 of CFC No. 1, issued December 10, 1919, and effective December 30, 1919. At that time the entries were:
Item Articles
12 AMMUNITION, EXPLOSIVE, * * *
❖ * * * *
14 For Cannon:
* * * * *
17 Without Projectiles (Blank Cartridges, metal) : [Emphasis supplied]
CFC No. 1 also provided that the “* * * descriptive terms appearing within parentheses constitute another description of the identical article immediately preceding the parentheses.” Therefore, the descriptive term “Blank Cartridges, metal”, which appears in parentheses next to the
“Ammunition, Explosive, For cannon: * * * without Projectiles” is also described as “Blank Cartridges, metal” in CFC No. 3, issued October 2, 1922, and effective November 15, 1922, which reads in pertinent part:
Item Articles
9 ammunition, explosive, see Kule 39: For Cannon:
† With empty, sand-loaded or solid Projectiles (Loaded Cartridges) or without Projectiles (Blank Cartridges, metal) : [Emphasis supplied]
The same description is carried over as items 11, 12, and 13 of CFC No. 5, issued October 24, 1927, and effective December 15, 1927.
In Supplement No. 4 to CFC No. 5, issued March 17, 1928, and effective April 30, 1928, items 12, 13, and 14 of CFC No. 5, issued October 24, 1927, were cancelled; but the same language as contained in those items was added in items 19 and 20 of Supplement No. 4, except that the descriptive phrase “Blank Cartridges, metal” and “Loaded Cartridges” no longer appeared. In Supplement No. 4, however, the heading was changed from “ammunition, explosive”, to “ammunition, fixed:”. (The concept of fixed ammunition will be more fully discussed hereinafter under the heading Fixed Ammunition.)
Supplement No. 18, issued December 22, 1928, and effective February 1, 1929, cancelled items 19 and 20 of Supplement No. 4 to CFC No. 5, as well as item 18 thereof, which had described ammunition under the generic heading of “ammunition, fixed.” The Supplement No. 18 classification restored the heading “ammunition, explosive”, and discarded the heading “ammunition, fixed,” although retaining the same description of “ammunition, explosive, * * *: For Cannon: With empty, sand loaded or solid projectiles or
Item
Articles
AMMtnsnnoN, explosive, Incendiary or Gas-, Smoke- or Tear-Producing, * * *:
1
For Cannon:
2
Cartridges, blank:
Supplement No. 24 provides that the term “Cartridges, blank” for cannon is a change in wording which results in neither increases nor reductions in charges.
Aside from the tariffs themselves, it is also significant to note that Joint Army and Air Force Commercial Traffic Bulletin No. 16, entitled “Freight Classification Guide”, dated February 13, 1950, which was prepared solely for the use of Government transportation officers in translating Army-Air Force ordnance nomenclature for freight billing purposes, provides that the freight nomenclature for “Charge, propelling (in case, cartridge, M24) 120-mm gun” is “Cartridge, cannon, blank.”
It is clear from the foregoing that, historically, for purposes of freight classification, the term “Cartridge, cannon, blank” has been used to describe and identify “Ammunition for cannon without projectile”; that in freight terminology these terms mean the same thing; and that no significance has been attached to the ordnance meaning of “blank” ammunition. Thus, considering the fact that the commodity shipped is described in technical ordinance terms as “Charge, propelling (in case, cartridge M24) 120-mm gun,” and as “Ammunition for cannon without projectile” in transportation terminology, it is concluded that the commodity is embraced within Item 1835 of CFC No. 16, and that the class rating on “Cartridge, cannon, blank” is applicable to the shipments involved in Categories 1 and 3. Plaintiff argues that the term “Cartridges, cannon, blank” cannot apply to
FIXED AMMUNITION
Both plaintiff and defendant presented expert testimony in an effort to identify, for transportation purposes, the commodity involved in the shipments here in controversy. Dr. Bernard Lewis testified on behalf of plaintiff and Mr. John Herczogh testified on behalf of defendant. As shown in the findings, both of these men are eminently qualified in the ordnance field, and the latter also is highly qualified with respect to matters involving the transportation of military ordinance. Dr. Lewis and Mr. Herczogh agreed that the commodity shipped is not “blank” ammunition in the military sense and, as stated previously, the record supports such a conclusion. However, they expressed differing views as to whether the commodity is “fixed” ammunition.
As indicated hereinbefore, with respect to the shipments in Category 2 and Category 4, defendant applied a combination of the Class 4 rating published in Item 1835 of CFC No. 16, and the commodity rates of either Item 1606 of TCFB Commodity Tariff 4-U or Item 3200 of TCFB Commodity Tariff 4-V, depending upon which of the two tariffs was in effect at the time of the shipments. Both items read in pertinent part:
Ammunition, fixed, for cannon, with empty, sand loaded or solid projectiles or without projectiles. [Emphasis supplied]
Plaintiff contends that the rates provided in TCFB Tariff 38-F and 38-G apply. The pertinent portion of 38-F reads as follows:
Powder, black, brown or smokeless, in boxes or kegs.
The pertinent portion of 38-G reads as follows:
Powder, smokeless, for cannon, as described in Item 16410 of Western Classification.
The question of defendant’s action in combining the class rates with the commodity rates is not in issue, since the plaintiff does not dispute the applicability of the combination, but contests only the classification of the commodity shipped.
Plaintiff contends that since ammunition is classified according to type as “fixed”, “semi-fixed”, “separated”, and “separate-loading”, the classification depends entirely upon the relationship between the “propelling charge explosive train” and the “bursting charge explosive train”, or, more simply stated, whether the projectile is permanently attached to the cartridge case. This position is supported by testimony presented by plaintiff’s expert witness, Dr. Lewis. Defendant, on the other hand, contends that the classification is dependent upon whether the propelling charge contained in the cartridge case is “adjustable”. Thus, defendant concludes all that ammunition in which the propelling charge may not be adjusted is “fixed”. The testimony of defendant’s expert witness, Mr. Herczogh, supports this position. In view of the conflicting nature of the expert testimony relied upon by the parties in support of their respective positions outlined above, we must look to the whole record in order to find the answer to our problem.
War Department Technical Manual, TM 9-1904, Ammunition Inspection Guide, dated 2 March 1944, states that, “According to the method of assembly for transportation and for loading into the piece, [weapon] ammunition is classified as ‘fixed’, ‘semi-fixed’, or ‘separate-loading’ (unfixed),” which classifications are defined as follows:
Fixed Ammunition. This type com/prises a cartridge case (which contains the propellant) whose dase contains the primer, and whose forward opening is crimped to the projectile so that the entire rownd is integral and all components are loaded into the weapon in one operation. [Emphasis supplied]
*242 Semifixed Ammvunition. This type (differs from fixed ammunition in that, while the projectile and cartridge case are issued assembled and are loaded into the gun as a unit, the cartridge case is not permanently, attached to the projectile, but may be removed at the firing point for the purpose of varying the amount of propelling charge as desired. [Emphasis supplied]
Separate-loading Ammunition. The distinguishing characteristic of separate-loading ammunition is that it requires two or more operations to be loaded into the breech of the gun. The propellant and primer are loaded separate from the projectile. The propellant is contained in either cartridge bags in definite quantities, or loosely in an uncrimped cartridge case. In the former instance, the amount of propelling charge may be varied as desired. * * *
Department of the Army Technical Manual, TM 9-1901, Artillery Ammunition, dated September 1950, states that, “Dependent on the manner in which these components [components of a complete round of ammunition] are assembled for firing, complete rounds of artillery ammunition are known as fixed, semifixed, separated and separate-loading,” which classifications are defined as follows:
In fixed amrmmition, the propelling charge is fixed that is, not adjustable, and the complete round is loaded into the weapon as a unit. As usually designed, the propelling charge is assembled loosely in the cartridge case which is crimped rigidly to the projectile. * * * [Emphasis supplied]
Semifixed a/mmimition is characterized by an accessible propelling charge which may be adjusted for zone firing. Like fixed ammunition, it is loaded into the weapon as a unit. * * * [Emphasis supplied]
Separated ammunition is characterized by the arrangement of the propelling charge and the projectile for loading into the gun — 'the propelling charge, contained in a primed cartridge case, sealed with a closing plug, and the projectile are loaded into the gun in one operation. * * *
In separate-loading ammunition, the separate components — projectile, propelling charge, and primer — are loaded into the weapon separately, because the ammunition is too heavy and bulky to be handled as a unit. * * *
Departments of the Army and Air Force Technical Manual, TM 9-1900, and Technical Order, TO 11A-1-20, (a joint
* * * Bounds of artillery ammunition that are composed of a projectile and an integral propelling charge have one basic designation for the complete round, which is the term “cartridge” or the older terminology of “projectile,” “shell,” or ‘'shot” and the qualifying adjective of “fixed” or “semifixed”. Bounds of artillery ammunition that are composed of a projectile and a separate propelling charge have a basic designation for the projectile of “projectile,” “shell,” or “shot” and the basic designation for the propelling charge of “propelling charge.” Such rounds are classified as “separated” or “separate-loading” ammunition.* * *
As stated earlier, ammunition for 120-mm (4.7-inch) gun is a form of “separate-loading” ammunition, known as “separated” ammunition which differs from other separate-loading ammunition in that the projectile and cartridge case, containing the propelling charge, are loaded into the gun in one operation. It is similar to “fixed” ammunition in that its propelling charge is not adjustable. Within this similarity, the conflict lies.
A comparison of Technical Manual, TM 9-1904, dated March 2, 1944, with Technical Manual, TM 9-1901, dated September 1950, quoted in pertinent part, supra, discloses during the intervening period between the dates said TM’s were issued, the definition of “fixed” ammunition underwent a change. In the latter TM, the distinguishing characteristic is the non-adjustability of the propelling charge. Subsequently, as evidenced by the Army and Air Force Technical Manual, TM 9-1900, and Technical Order, TO 11A-1-20, dated June 1, 1956, partially quoted above, the distinguishing characteristic once again became the integration of the projectile and cartridge case.
Considering the foregoing, it is not difficult to understand why both ordnance experts, Dr. Lewis and Mr. Herczogh, differed as to the meaning of “fixed” ammunition. It would appear that both men are correct, depending, of course, upon the technical manual each relied. The shipments in question occurred during the years 1944 and 1945; therefore, the definition of “fixed” ammunition set forth in TM 9-1904,
An examination of CFC’s numbers 1, 3, 5, and Supplement No. 4 thereto, and 6 reveals that “Ammunition, Explosive * * * For Cannon: With empty, sand-loaded or solid Projectiles (Loaded Cartridges) or without Projectiles (Blank Cartridges, metal)” consistently has been rated differently than “Ammunition, Explosive * * * For Cannon: With explosive Projectiles,” the latter being “subject to tariffs (rates and regulations) of the individual carriers”. A projectile is a missile, either solid or with an explosive, chemical or inert filler, propelled from the weapon by the force of gases produced by the propelling charge, and the freight ratings obviously are dependent upon the nature of the filler and the hazard incident to each.
The distinction with respect to the nature of the filler of the projectile for purposes of rate classification was retained until July 6, 1931, when the entry “N.O.I.B.N.” (not otherwise indexed by name) first appeared in Supplement No. 24 to CFC 6, under the subheading “fixed ammunition for cannon: * * * With empty, sand-loaded or solid projectiles:”.
As previously noted, the entry, “cartridges, blank,” for cannon, first appeared under the heading “Ammunition, Explosive * * *” in Supplement No. 24 to CFC No. 6, effective July 6, 1931, wherein a Carload rating of Class 4 was applied to the item described in said entry. CFC No. 14 and Supplement No. 5 thereto, contained the entry “Cartridges, cannon, blank * * *”, and also applied a Carload rating of Class 4 thereto, as did CFC No. 16, effective December 6, 1943.
The Commodity Tariffs, TCFB 4-U and 4-V, mentioned earlier, do not contain entries describing ammunition in terms identical with those used in describing any of the items of ammunition listed under the entries quoted from the various CFC’s, which have been discussed in detail here-inbefore. However, said commodity tariffs do contain the description “Ammunition, fixed, for cannon, with empty, sand-loaded or solid projectiles or without projectiles”, and the same rates apply to each. There is no distinction, for purposes of rate classification, at least on the basis of the above commodity tariffs, between ammunition for cannon with or without projectiles, except that ammunition with explosive projectiles, not being listed, are not subject to commodity rates. It is reasonably clear from the record that the term “fixed ammunition”, when applied to the transportation characteristics of the commodity involved, means that the propelling charge therein is non-adjustable, and that ammunition for cannon (wherein the propelling charge is non-adjustable) with or without projectile, historically has been described for transportation charges as “fixed ammunition.”
On the basis of the above considerations, the application of the rates provided in Items 1606 and 3200 of TCFB’s 4 — U and 4-V cannot be restricted to ammunition with projectile
Even should there be an ambiguity occasioned by the terminology of the tariffs involved, this would be little help to the plaintiff, for such ambiguities are generally resolved against the carrier in favor of the shipper. See Hughes, supra, and authorities cited therein; also Union Pacific Railroad Co. v. United States, 152 Ct. Cl. 523, 287 F. 2d 593 (1961).
Consistent with the foregoing and the detailed findings of fact, infra, plaintiff is entitled to recover from defendant the sum of $1,314.44 on the shipment in Category 5. On the remaining shipments in all other categories, defendant is entitled to recover $4,857.02, leaving a net recovery to defendant under its counterclaim in the amount of $3,542.58.
The opinion, findings of fact and recommended conclusion of law are submitted under the order of reference and Rule 57(a).
See footnote 3 to finding 3(e), infrcij which clearly shows that plaintiff’s petition herein was timely filed.
In that case, plaintiff sued to recover sums alleged to he due for transportation charges on shipments of “bombs or mines”, carried for the Government. upon audit, the General Accounting Office determined that the “bombs or mines” shipped ■were not complete in that they did not include bursters, fuses, and mechanical parts essential to their functioning as “incendiary bombs”, and ruled that the “bombs or mines” should have been billed as “combination articles”, and the alleged overpayments were deducted from other sums due plaintiff. This court held that such shipments were properly billed by the plaintiff as “bombs or mines”, stating that “While the absence of the burster and fuse admittedly renders the shipment of the article less hazardous from a transportation standpoint, the only logical description of the article is as an incendiary bomb.”
Denotes change not involving reduction nor advance.
The “not otherwise Indexed by name” classification is a broader category into which fall those items which the carrier considers either too insignificant to list separately under a general heading, or which are unknown or not recalled at the time the tariffs are established for the specific items. Union Paciflo Railroad. Co. v. United States, 117 Ct. Cl. 757, 704, 93 F. Supp. 617 (1950).
Dissenting Opinion
dissenting:
I respectfully dissent from the adoption per curiam of the Commissioner’s Opinion and Findings.
The commodity shipped was the projectile-less, propelling charge portion of a round of service ammunition for the 120 mm. (4.7 inch) M-l anti-aircraft gun. It consisted of 24 pounds of smokeless powder and a primer in an M-24 brass cartridge case. This propelling charge is one component of a complete round of ammunition which also includes the fuse, the primer, and the forged steel projectile containing from 4.8 to 5.42 pounds of high explosive. It was shipped separately from the projectile.
Plaintiff contends that the propelling charge should be classified for shipment as “smokeless powder for cannon” under a Class 1 rating. Because the propelling charge is not specifically listed in any freight commodity classification, plaintiff proposes that it should be considered as a combina
When not specifically classified, articles which have been combined or attached to each other, will be charged at the rating for the highest classed article of the combination, and on shipments subject to CL [carload] rating the minimum weight will be the highest minimum weight provided for such highest rate or rating.
The court has accepted defendant’s contention that the propelling charge should be classified as “Cartridges, cannon, blank” for two categories of the shipments, and as “fixed ammunition” for the two other categories. Consequently, the court finds that a classification of “Cartridges, cannon, blank, loose or in packages” at a Class 4 rating is correct under C.F.C. No. 16 — Item 1835 for two of the categories. For the two other categories, the court applies the commodity rate applicable to “fixed ammunition” in accordance with either TCFBT. 4, Item 1606 or TCFBT-4-V for “Ammunition Explosive (subject to Item 832) Ammunition, fixed, for cannon with empty, sand loaded or solid projectile, or without projectile” The court, in adopting the Commissioner’s opinion, has recognized that “from a strictly ordnance viewpoint, the ammunition is neither blank nor fixed” but has concluded that this is not determinative of the classification for transportation purposes. Thereupon, by means of a labyrinthian historical analysis of tariffs, the court has held that for transportation purposes, brass cartridges containing charges of smokeless powder for projecting antiaircraft projectiles from 120 mm. cannon, but without projectiles, are “blank ammunition”, and that they are also “ammunition, -fixed, for cannon, with empty, sand loaded or solid projectiles, or without projectiles.” (Emphasis supplied.)
As the majority opinion states, the definition of “fixed ammunition” in the War Department Manual, ibid., which was in effect when these shipments were made in 1944-1945, was changed by Technical Manual TM 9-1901 (September 1950). In the 1950 manual, the distinguishing characteristic of “fixed ammunition” was the non-adjustability of the propelling charge. However, in 1956, the distinguishing characteristic of “fixed ammunition” again became the integration of the projectile and cartridge, as it was in 1944-1945. See Departments of the Army and Air Force Technical Manual TM 9-1900 and Technical Order TO 11A-1-20 (June 1, 1956).
As to the expert testimony offered, the majority opinion states:
“Considering the foregoing, it is not difficult to understand why both ordnance experts, Dr. Lewis and Mr. Herczogh, differed as to the meaning of ‘fixed’ ammunition. It would appear that both men are correct, depending, of course, upon the technical manual each relied. The shipments in question occurred during the years 1944 and 1945; therefore, the definition of ‘fixed' ammunition set forth in TM 9-1904., dated March 2, 1944, which was in force dwing those years, rrmst prevail. This is not to say, however, that with respect to freight classification, the term ‘fixed’ ammunition, as used in the CFC’s, conveys the meaning plaintiff pro*249 poses. A tariff must be given a fair reading, and any unreasonable ambiguities cannot be imparted.” (Emphasis supplied — citations omitted.)
One might reasonably conclude that the 1950 definition of “fixed ammunition” (based on the non-adjustability of the propelling charge) was changed in 1956 to return to the 1944 definition (based on the integration of the projectile and cartridge) to resolve an unreasonable ambiguity in the 1950 definition. Nevertheless, the majority has stated that:
“ * * * It is reasonably clear from the record that the term ‘fixed ammunition’, when applied to the transportation characteristics of the commodity involved, means that the propelling charge therein is non-adjustable, and that ammunition for cannon (wherein the propelling charge is non-adjustdble) with or without projectile, historically has been described for transportation charges as ‘fixed ammunition.’ ” (Emphasis supplied.)
Although the majority opinion does contain some historical analysis to support its conclusion that “cartridge, cannon, blank”, for the purposes of freight classification, means the same thing as “ammunition for cannon * * * without projectile,” there does not appear to be any historical basis in either ordnance or transportation terminology to find that “fixed ammunition” is also “ammunition explosive for cannon, * * * without projectile.” In the absence of clear historical evidence to the contrary, I would conclude that “fixed ammunition” means what the 1944 Technical Manual, supra, said that it meant.
I must also respectfully disagree with the holding of the majority that 120 mm. cartridges, containing 24 pounds of explosive smokeless powder and designed to propel an explosive anti-aircraft shell to altitudes of 30,000 feet, are “blank cartridges for cannon,” for the purpose of tariff classification. “Blank cartridges” in military terminology are cartridges loaded with black powder, not smokeless powder, and are used solely for simulated artillery fire or ceremonial salutes. See War Department Technical Manual TM 9-1901 (June 29, 1944).
The majority opinion cites the historical development of Tariff Item 1835 of CFO No. 16 from 1919 to 1931, a period
“Cartridges, cannon, blank” are assigned a Class 4 rating under Item 1835 of the tariff, whereas “cartridge cases (cartridge shells) cannon, empty” are given a higher Class 3 rating. It is difficult to conceive how, under transportation rate terminology, a cartridge case for cannon filled with high explosive smokeless powder would be given a lower rating (4) than the empty cartridge case (3). Even though the carload minimum for blank cartridge shells under the Class 4 rating is 36,000 pounds and the carload minimum for empty cartridge shells is only 30,000, this fact can hardly explain the apparent anomaly in this case since the average minimum shipment was over 68,000 pounds and the smallest weight for one shipment was 56,535 pounds.
The majority concluded that “from a strictly ordnance standpoint, the ammunition is neither ‘blank’ nor ‘fixed’; but for the reasons previously mentioned and hereinafter discussed, the ordnance meaning is not controlling. In short, although the commodity is neither ‘blank’ nor ‘fixed’ ordnance, it does not follow that the identity of the commodity from a military ordnance standpoint is determinative of its classification for transportation purposes.”
Even if this distinction between ordnance and transportation terminology is accepted, I can find no basis from the detailed historical development of the tariffs to establish that “fixed ammunition” in ordnance terminology was not
Both the courts and the Interstate Commerce Commission have consistently recognized that the terms used in-tariffs, unless specially defined, must be given their ordinary commercial meaning as ordinarily understood in the particular trade or industry. Union Wire Rope Corporation v. Atchison, Topeka & Santa Fe Railway Co., 66 F. 2d 965 (8th Cir. 1933), cert. denied, 390 U.S. 686; Floe v. Cedergreen Frozen Park Corporation, 37 Wash. 2d 886, 226 P. 2d 871 (1951); DeRamus v. Mengel Co., 74 F. Supp. 425 (W. D. Ky. 1947); Brasco Manufacturing Co. v. Chesapeake & Ohio Railway Co., 229 I.C.C. 533 (1938); Spencer Sons Co. v. Cincinnati, N. O. & T. P. Ry. Co., 163 I.C.C. 492 (1930) ; Chippewa Falls Woolen Mill Co. v. Minneapolis, St. Paul & Sault Ste. Marie R. Co., 231 I.C.C. 413 (1939); Titanium Alloy Manufacturing Co. v. Atchison, Topeka Ab Santa Fe Railway Co., 259 I.C.C. 121 (1944).
The only special definition of “fixed ammunition” that was applicable at the time these shipments were made is contained in Technical Manual TM-9-1904, supra. Under the classification of “fixed”, “semi-fixed”, or “separate loading”, fixed ammunition is defined as follows:
A complete round of blank ammunition consists of a black powder charge contained in either a loose-fitting cloth bag which sags around the primer or in one or two compressed cylindrical pellets wrapped in cellophane fitting around the primer, assembled in a brass cartridge case. * * * (Emphasis supplied.)
The only special definition of “blank ammunition” in effect at the time these shipments were made is in Technical Manual, TM 9-1901, supra. Blank ammunition is described as being used for practice maneuvers, simulated fire and ceremonial purposes, and is not used in conjunction with any projectile. A complete round of “blank ammunition” is defined in the Manual as follows:
Fixed Ammunition. This type comprises a cartridge case (which contains the propellant) whose base contains the primer, and whose forward opening is crimped to the projectile so that the entire round is integral and*252 all components are loaded into the weapon in one operation.2
Not only has the Interstate Commerce Commission relied upon ordnance terminology in the interpretation of tariff language, but also the Government has urged this. In Pennsylvania Railroad Company v. United States, 165 Ct. Cl. 1 (1964), this court considered a ruling of the Interstate Commerce Commission that “ammunition for cannon with explosive projectiles fixed or semi-fixed,” although conceded to be “ammunition for cannon” as described in the class rating, was covered by the lower commodity tariff rate item of “Explosive, cartridges, loaded.” The record before us in that case demonstrated that the Commission, in reaching its conclusion, relied completely upon expert opinion and reasons based upon ordnance terminology and technical ordnance manuals to the effect that the ammunition for cannon involved conformed to the basis and accepted requirements of the more specific term “cartridge.”
Accordingly, I differ with the conclusion of the majority that “although the commodity is neither ‘blank’ nor ‘fixed’ ordnance, it does not follow that the identity of the commodity from a military ordnance standpoint is determinative of its classification for transportation purposes,” particularly since we have no specific definition of either “blank” or “fixed” ammunition from a transportation standpoint. Since the commodity shipped cannot be rated under Class 4 as “cartridges, cannon, blank” or as “fixed ammunition” under the tariffs cited, it should be rated under the classification urged by plaintiff, under E,ule 18 at CFC No. 16, supra, and become subject to the highest-rated article of the combination — namely, the first-class rating for smokeless powder.
If we were to accept ordnance terminology or even common usage as a standard, neither the shipper nor the Government nor this court would in the future have to resort to a standard of tariff interpretation which requires threading one’s way through the intricate convolutions of the maze of
Findings oe Fact
1. Plaintiff is a corporation organized and existing under the laws of the State of Minnesota, and is a common carrier by railroad in interstate commerce over its own lines and jointly with other lines.
Shipments
2. During the years 1944 and 1945, plaintiff, over its own lines and jointly with other carriers, performed transportation services for defendant by carrying 49 shipments of freight, all of which moved between points within the United States under Government bills of lading.
Charges, Payments, and Deductions
3. (a) Upon completion of the transportation services involved herein, plaintiff, as the final and delivering carrier, billed the transportation charges to defendant in accordance with certain tariffs and rate authorities, mentioned hereinafter. The charges so billed were paid by defendant. Thereafter, plaintiff received notices from defendant stating that overpayments of said bills had been determined by the General Accounting Office and refunds were demanded. No refunds were made by plaintiff, and defendant, commencing on
(b) Subsequently, on July 24, 1962, plaintiff filed its petition herein, claiming entitlement to the sum of $16,226.58,
(c) In its answer to plaintiff’s petition, defendant alleged, as a second affirmative defense, that certain claims made by plaintiff, in whole or in part, arose more than sis years prior to the filing of the petition; and that, therefore, such claims are barred by the statute of limitations, 28 U.S.C. 2501.
Categories of Shipments
4. The parties have stipulated that for purposes of this case, the 49 shipments may be divided into five categories as follows:
a. Category 1 consists of those shipments originating at Tulalip, Washington, destined to Mukilteo, Washington, and covered by plaintiff’s bill numbers4 G-74103, G-74104, and G-74558.
b. Category 2 consists of those shipments originating at Avondale, Colorado, consigned to Tulalip, Wash*255 ington, and covered by plaintiff’s bill numbers G-76900, G-77409, and G-74274.
c. Category 3 consists of those shipments originating at Ordnance, Oregon, destined to Tulalip, Washington, and covered by plaintiff’s bill number G-88694.
d. Category 4 consists of those shipments originating at Parsons, Kansas, and Watson, Indiana, consigned to MuMlteo, Washington, and covered by plaintiff’s bill numbers G-95068, G-95070, and G-95349.
e. Category 5 consists of one shipment consigned from Parsons, Kansas, stored in transit at Panhandle, Nebraska, shipped to Tulalip, Washington, and covered by Government Bill of Lading Number WW-2919345 on which the commodity shipped is described as “Explosive Projectiles.”
5. With respect to shipments embraced within Category 1, plaintiff contends that the rates named in Trans-continental Freight Bureau (TCFB) Section 22, Quotation 13 Series, are applicable. Defendant contends that lower freight rates are applicable and bases its claim for this category of shipments upon a rating of Class 4 published in Item 1835 of Consolidated Freight Classification (CFC) No. 16, issued October 25, 1943, effective December 6, 1943.
6. With respect to shipments embraced within Category 2, plaintiff contends that the applicable rate must be based upon Item 135 of Trans-continental Freight Bureau Tariff 38-F. Defendant contends that this category of shipment is entitled to lower freight charges and bases its claim upon a combination of rates over Seattle and Everett, Washington, made up of a commodity rate for Item 1606 of TCFB Tariff 4-U from Avondale, Colorado, to Seattle and Everett, and Class 4 as provided in Item 1835 of Consolidated Freight Classification No. 16.
7. With respect to the shipments embraced in Category 3, plaintiff bases its charges upon a rate named in Transcontinental Freight Bureau Section 22, Quotation 13-A, without land grant deduction, or, in the alternative, upon Item 16410 of Consolidated Freight Classification No. 16, with land grant deduction. Defendant bases its claim to lower freight charges for this category of shipments upon Item 1835 of CFC No. 16 naming a Class 4 rating.
9. There is no dispute with respect to the rate and amount due for the shipment of “Explosive Projectiles” embraced in Category 5. The parties have agreed and stipulated that plaintiff is entitled to recover $1,314.44 on this shipment in any event.
Descriptions on Bills of Lading
10. With the exception of the Category 5 shipment (mentioned in findings 4(e) and 9, supra) all of the shipments, i.e., the 48 shipments in dispute here, were described on the bills of lading therefor as so many “Bxs. Smokeless Powder For Cannon.” Additionally, the bills of lading contained a supplementary description in various ways as follows:
(a) P5ULA (for 120 MM Gun Ml (anti-aircraft) Chg. Prop. — in Case Cart., M24.
P5UEA— (4.7 In. Gun Ml Chge Prop).
P5ULA — (120 MM gun Ml AA Chge Prop).
P5ULA — (4.7 In. Gun Ml).
(120 MM Gun Ml AA Chge Prop) (P5ULA).
(f) (For 120 MM Gun Ml (anti-aircraft) Chg. Prop.— In Case Cart M24) (P5TJEA).
(4.7 In. Gun Ml Chge Prop) (P5ULA).
(1144 EDS P5TJLA 4.7 In Gun Ml CHG Propelling). (h)
Charge, Propelling (In Case, Cartridge, M24), (120-MM Gun). (i)
(Charge Propelling 120 MM GUN) (P5ULA). (Í)
Tariffs
11.(a) At the times of the shipments involved herein, Trans-Continental Freight Bureau (TCFB), Section 22,
Item No. 1. Traffic Covered
The traffic covered by and subject to this quotation is the commodities listed in Item No. 2 when originating at and consigned to points within Mountain Pacific and Pacific Coast territory other than covered by Mr. A. F. Cleveland’s Section 22 Quotation No. 14 — A of December 7, 1942 and amendments thereto.
Item No. ¡2. List of Commodities
Ammunition, explosive, incendiary or gas, smoke or tear producing, viz.:
Ammunition, fixed or semi-fixed, for cannon;
Bangalore Torpedoes;
Bombs, Mines or Depth Charges;
Boosters, Bursters, Detonating Fuzes or Detonators;
Cartridge Cases, Cannon, empty pruned;
Fuzes, combination, percussion, tracer, time or mine;
Grenades, hand or rifle;
Percussion Caps;
Primers;
Projectiles;
War Heads;
Gases, poison;
Grenades, hand or rifle, practice;
Torpedoes, aircraft or submarine, without explosives, self-propelling.
Explosives, viz.:
Caps, blasting or electric blasting;
High Explosives, noibn herein;
Low Explosives, including black powder; Nitro-cellulose, dry;
Nitro-starch, dry;
Picric Acid;
Safety Squibs;
Smokeless Powder;
Tri-Nitrotoluol;
Wet Fulminate of Mercury.
Military Pyrotechnics or fireworks.
Item No. 3. Rates To Be Applied
_ Subject to compliance with all the terms and conditions of this quotation on each carload shipment of the kind referred to in Item No. 2, the railroads will apply rates as shown m Exhibit “A” attached hereto, subject to minimum weight of 50,000 pounds.
*258 Item No. J¡.. Routing and Circuity Limitations
The rates as provided herein apply to short-line mileage via routes authorized in current class rate tariffs and subject to all circuity and other restrictions applicable to such class rate tariffs.
Item No. 5. Lam,d-Gra/nt Ded/actions
No rate or charge applicable on any shipment moving under this quotation shall be subject to any land-grant deduction.
Item No. 6. Charges and Allowances
Shipments made under this quotation are subject to all charges and all allowances for or in respect of diversion, reconsignment, arbitraries, demurrage, inspection, switching, and to all other privileges, charges and rules which in any way increase or decrease the amount to be paid on any shipment or which increase or decrease the value of the service, without, in any case, any land-grant deduction.
(b) Item 135 of TCFB Tariff 38-F (mentioned in finding 6, supra), provided a first class rating and carload rate on “Powder, Black, Brown or Smokeless, in 'boxes or kegs” in carloads.
(c) TCFB Tariff No. 38-G (mentioned in finding 8, supra) , provided a first class rate on “Powder, Smokeless, for cannon, as described in Item 16410 of Western Classification” of CFC No. 16. (See (g), infra.)
(d) Item 1606 of TCFB Tariff 4r-U (mentioned in finding 6, supra) provided a commodity rate for the following articles: “Ammunition: Explosive (Subject to Item 832) : Ammunition, fixed, for camion, with empty, sand loaded or solid projectiles or without projectiles.”
(e) Item 3200 of TCFB Tariff 4 — V (mentioned in finding 8, supra), provided a commodity rate as follows: “Ammunition: Explosive (subject to Item 832), viz: Ammunition, fixed, for cannon, with empty, sand loaded or solid projectiles or without projectiles.”
(f) Consolidated Freight Classification No. 16, issued October 25, 1943, effective December 6, 1943, (mentioned in findings 5 through 8, supra), provided under the heading “Ammunition, Explosive, Incendiary, or Gas, Smoke or Tear Producing”, in pertinent part:
*259 
(g) Item 16410 of CFC No. 16 (mentioned in findings 7 and 8, supra), provided carload class rates as follows:
Commodity Transported
12. There is no dispute that the commodity shipped was the propelling charge portion of the round of ammunition for the 120-mm (4.7 inch) antiaircraft gun Ml, without a projectile, consisting of 24 pounds of smokeless powder contained in the M24 cartridge case. It is not a complete round of ammunition for said weapon, but rather a component part of a complete round therefor. A complete round consists of the projectile, the propelling charge (contained in the cartridge case), the fuse, and the primer. The antiaircraft projectile, i.e., the M73 shell, which the commodity shipped is designed and intended to propel to target, is filled with the M61 mechanical time fuse which is standard with said shell. The projectile body is of forged steel designed to hold 5.26 pounds of TNT, 4.8 pounds of 50/50 amatol or 5.42 pounds of trimonite as a bursting charge. The projectile also uses the M20A1 booster as part of the high explosive bursting
13. Plaintiff contends that the commodity shipped should be classified for transportation purposes as “smokeless powder for cannon” and rated as Class 1. The basis for this contention is that the propelling charge for 120-mm cannon is not specifically listed in either the Consolidated Freight Classification No. 16 or the Trans-continental Freight Bureau Tariffs 4-U or 4-V, supra, which defendant maintains are applicable; that the commodity then is a combination of smokeless powder (which bears a Class 1 rating) and a metal cartridge case (which bears a Class 3 rating); and that, therefore, the rating for smokeless powder applies by virtue of Rule 18 of CFC 16, Combination Articles, effective December 6,1943, which reads as follows:
When not specifically classified, articles which have been combined or attached to each other, will be charged at the rating for the highest classed article of the combination, and on shipments subject to CD [carload.] rating the minimum weight will be the highest minimum weight provided for such highest rate or rating.
14. Defendant contends that for the shipments in Categories 1 and 3 (finding 4(a) and (c), supra), the commodity shipped should be classified as “Cartridges, cannon, blank”; and with respect to shipments in Categories 2 and 4 (finding 4(b) and (d), supra), as “fixed ammunition” where applicable. Consistent with the foregoing, defendant applied rates applicable to Tolanh cartridges, in accordance with Item 1835 of Consolidated Freight Classification No. 16 (see finding 11 (f), supra), or where commodity rates apply, the rates applicable to -fixed ammumtion, in accordance with Transcontinental Freight Bureau Tariffs 4-U and 4-V (see finding 11 (d) and (e), respectively, supra).
Military Ord/ncmce Definitions
15. (a) In War Department Technical Manual, TM 9-1901, entitled “Artillery Ammunition”, dated June 29,
(b) A complete round of blank ammunition is defined in the above-identified technical manual as follows:
A complete round of blank ammunition consists of a black powder charge contained in either a loose-fitting cloth bag which sags around the primer or in one or two compressed cylindrical pellets wrapped in cellophane fitting around the primer, assembled in a brass cartridge case. * * *
(c) Webster’s New International Dictionary (1961 Ed., p. 230) defines blank cartridges as “a cartridge having in place of a projectile a wadding (as of paper) sealed in the mouth of the case.”
16. A later Department of the Army Technical Manual, TM 9-1900, entitled “Ammunition General,” dated June 1956, defines a complete round of blank ammunition as follows:
A complete round of blank ammunition consists of a cartridge case, primer, charge of black powder, and a closing cup sealed in the mouth of the case. The primer is fitted to the cartridge case as in fixed or semifixed rounds of service ammunition. The black powder charge ranges in weight from 0.87 to 2.0 pounds depending upon its caliber and type. The blank cartridge contains no projectile.
Charge. The black powder charge for blank rounds consists of loose potassium- or sodium nitrate-type black powder in sewed cotton cloth bags.
17. (a) War Department Technical Manual, TM 9-1904, entitled “Ammunition Inspection Guide,” dated March 2, 1944, states that ammunition is classified, according to the method of assembly for transportation and for loading into
Fixed Ammunition. This type comprises a cartridge case (which contains the propellant) whose, base contains the primer, and whose forward opening is crimped to the projectile so that the entire round is integral and all components are loaded into the weapon in one operation.
Semifixed Ammunition. This type differs from fixed ammunition in that, while the projectile and cartridge case are issued assembled and are loaded into the gun as a unit, the cartridge case is not permanently attached to the projectile, but may be removed at the firing point for the purpose of varying the amount of propelling charge as desired.
Separate-loading Ammunition. The distinguishing ■characteristic of separate-loading ammunition is that it requires two or more operations to be loaded into the breech of the gun. The propellant and primer are loaded separate from the projectile. The propellant is contained in either cartridge bags in definite quantities, or loosely in an uncrimpea cartridge case. In the former instance, the amount of propelling charge may be varied as desired. The primer is generally inserted after the breechblock has been closed.
(b) TM 9-1904 also states the following with respect to the propelling charge cartridge case for the ammunition used in the 120-mm antiaircraft gun (see finding 12, supra) :
The Brass Cartridge Case M24, weighs 24.70 pounds, ■and has an over-all length of 82.80 inches. It is fitted with a base rim to assist in extracting of the case after firing, and to trip the extractors in the breach so that the breechblock closes as the round is seated in the gun chamber. * * *
(c) The following is included in the list of Class B explosives in TM 9-1904 under the section entitled “Shipment of Explosives by Bail Freight”:
Ammunition for cannon with sand loaded projectile, solid projectile (AP [Armor piercing] shot), without projectile (blank).
(e) Agent W. S. Topping’s Freight Tariff No. 4, publishing Interstate Commerce Commission Kegulations for Transportation of Explosives and Other Dangerous Articles by (rail) Freight (including Specifications for Shipping Containers), effective January 7, 1941, under “class b — less daNGerous explosxves”, refers to “ammunition eor cannon WITH EMPTY, SAND-LOADED OR SOLID PROJECTILES OR WITHOUT projectiles”, which ammunition is defined as follows:
Ammunition for cannon with empty projectiles, sand-loaded projectiles, solid projectiles, or without projectiles, or shell, is fixed ammunition of caliber 37-mm (iy2 inches) and larger, assembled in a unit consisting of the cartridge case containing the propelling charge and primer and with empty, sand-loaded, or solid projectiles, or without projectiles.
(f)_ Ordnance Supply Catalog, dated June 10, 1944, identifies the Ammunition Inspection Code number “P5ULA” as follows:
PACKING AND SHIPPING DATA
For 120-mm Gun, Ml (Antiaircraft)Δ charge, propelling (in case, cartridge, M24), 120-mm gun, Ml P5ULA_ SMOKELESS POWDER EOR CANNON
(g)The Ordnance Supply Catalog of June 10,1944, contains an illustration identified as “Kepresentative marking of packing boxes for 120-mm gun, Ml ammunition,” which shows the marking required by ICC regulations as “ammunition EOR CANNON WITHOUT PROJECTILE.”
(i) Joint Army and Air Force Commercial Traffic Bulletin No. 16, entitled “Freight Classification Guide”, dated February 13, 1950, provides that the freight nomenclature for “Charge, propelling (in case, cartridge, M24) 120-mm gun” is “Cartridge, cannon, blank.”
18. Department of the Army Technical Manual, TM 9-1901, entitled “Artillery Ammunition,” dated September 1950, states that, dependent on the manner in which these components (complete round of artillery ammunition) are assembled for firing, complete rounds of artillery ammunition are known as fixed, semifixed, separated, and separate-loading, which terms are described as follows:
In fixed amrmmition, the propelling charge is fixed that is, not adjustable, and the complete round is loaded into the weapon as a unit. As usually designed, the propelling charge is assembled loosely in the cartridge case which is crimped rigidly to the projectile. * * *
Semifixed amrmmition is characterized by an accessible propelling charge which may be adjusted for zone firing. Like fixed ammunition, it is loaded into the weapon as a unit. In this type of artillery ammunition, the cartridge case is a free fit over the projectile. The propelling charge is divided into sections, each containing propellant powder assembled in a bag. To adjust the charge, the projectile is removed from the cartridge case, the sections or increments not required are removed, and the projectile then is reassembled to the cartridge case. * * *
Separated amrmmition is characterized by the arrangement of the propelling charge and the projectile*265 for loading into the gun — the propelling charge, contained in a primed cartridge case, sealed with a closing-plug, and the projectile are loaded into the gun in one operation. * * * the mouth of the cartridge case does not fit over the base of the projectile as in fixed and semi-fixed ammunition, but * * * both propelling charge and projectile are loaded into the gun in one operation, not separately as in separate-loading ammunition.
In separate-loading ammunition, the separate components — projectile, propelling charge, and primer — are loaded into the weapon separately, Decause the ammunition is too heavy and bulky to be handled as a unit. Ammunition larger than 105-mm caliber falls into this category. First, the projectile is inserted into the breech and rammed home so that the rotating band seats in the forcing cone; second, the propelling charge (usually in one or more cylindrical cloth bags) is placed in the powder chamber immediately to the rear of the projectile; and, third, after the breechblock has been closed and locked behind the charge, the primer is inserted into the firing mechanism of the breechblock.
Expert Testimony
19. Both plaintiff and defendant presented expert testimony in an effort to identify, for transportation purposes, the commodity involved in the shipments here in controversy. The expert witnesses agreed that the commodity is not “blank ammunition” in the military sense, and the record supports such a conclusion. However, these witnesses expressed differing views as to whether the commodity involved constituted “fixed ammunition.”
20. Dr. Bernard Lewis, presently President of Combustion and Explosives Research Inc., Pittsburgh, Pennsylvania, testified as an expert witness on behalf of plaintiff. Dr. Lewis is a former Chief of Research and Development of Grenades and Mines, and also Deputy Chief of the Division of Research and Development of Artillery, Ammunition, and Artillery Fuses, Ordnance Department of the Army. Since 1940, he has been a member of the Scientific Advisory Committee of the Ballistic Research Laboratory for the Army Ordnance Department. Dr. Lewis has an excellent scholastic record and background, and he is eminently qualified in the ordnance field; but he has had no experience in the transportation of explosives.
Dr. Lewis admitted to the view that the definition of fumed amrmmition has taken on a somewhat different meaning over the years in that fixed ammunition now connotes that the propelling charge therein is not adjustable. But he was adamant in the opinion that there can be no such thing as -fixed ammunition without a projectile.
21. Mr. John Herczogh, Chief of the Safety Engineering Office, Office of Chief of Transportation, Department of the Army, which office arranges the hazard classifications for dangerous commodities for transportation purposes, testified as an expert witness on behalf of defendant. He has been with the Army for the past 26 years, during which period he has been employed with the Ordnance Department about one-half of the time and with the Transportation Corps the other half of the time. Mr. Herczogh is highly qualified from training and experience in both the ordnance and transportation fields.
Relying on TM 9-1901, dated September 1960 (finding 18, supra), Mr. Herczogh expressed the opinion that the character of the propelling charge as “non-adjustable” determines whether ammunition is “fixed” or not. He acknowledged agreement with Dr. Lewis that the commodity shipped was “separated” ammunition, but he concluded that
22. Neither Dr. Lewis nor Mr. Herczogh is incorrect, for it is apparent that as of March 2, 1944, the classification of ammunition as to type depended upon whether the projectile and propellant charge were issued ready for firing, i.e., in an integrated or complete component. (See finding 17(a), supra.) It is equally apparent that as of September 1950, whether ammunition was “fixed” was determined by the non-adjustability of the propelling charge. (See finding 18, supra.)
Based upon a review of the whole record, the following comparison of the types of ammunition as to similarity in characteristics shows that “separated” ammunition is similar to “fixed” ammunition in that the propelling charge is not adjustable,, and this undoubtedly contributed to the difference of opinion between Dr. Lewis and Mr. Herczogh:
Fixed Ammunition—
1) Cartridge case and projectile, permanently assembled.
2) Charge not adjustable.
Semifixed—
1) Cartridge case and projectile not permanently assembled.
2) Charge is adjustable.
Separate-loading—
1) Cartridge case and projectile are separated.
2) Charge can be adjusted depending on whether cartridge case is sealed.
Separated—
1) Cartridge case and projectile separated.
2) Charge not adjustable.
23. On the basis of the expert testimony presented at the trial and the whole record, it is clear, and may be helpful to a better understanding of the contentions of the parties to explain, that a complete round of service ammunition consists of two major components, namely, the “bursting charge explosive train” and the “propelling charge explosive train.”
The first above-named component consists of high explosives which detonate and produce shock. This “train” consists of a primer of black powder, which is initiated by a
The second above-named component consists of low explosives which burn very rapidly and produce pressure. This “train” is contained in the projectile, and consists of the firing pin and detonator in the artillery fuse, and the booster and bursting charge in the shell.
24. (a) It appears that smokeless powder has never been used in blank ammunition, nor was black powder used during World War II as the main propellant charge in rounds of artillery ammunition. The quantity of black powder used in blank ammunition (.87 to 2 pounds) was inadequate to propel a projectile from the weapon since it would not generate enough pressure for that purpose. Furthermore, black powder was not suitable for the main propelling charge because of its tendency to flash and absorb water. The manufacture of smokeless powder, on the other hand, was undertaken so as to minimize gun flash and water absorption. “Flashlessness” is desirable in order to prevent observation of artillery weapons in combat. Since blank ammunition is not used for firing weapons in combat, the flashless character of smokeless powder is not needed, hence black powder is used in blank ammunition.
(b) It should be kept in mind that while the cartridge cases that were shipped in the instant suit contained both black powder and smokeless powder, neither black powder nor smokeless powder, as such, was shipped.
25. Plaintiff places a great deal of emphasis on the identity of the commodity shipped from a strictly ordnance standpoint. While the record in the instant case will not support a finding that the commodity may be reasonably identified as “blank” or “fixed” orctncmoe, it does not follow that the identity of the commodity from a military ordnance standpoint is determinative of its classification for transportation purposes. In this connection, as noted in finding 17(f),
Mr. Herczogh’s testimony, based upon extensive experience in hazard classification, is helpful in resolving the conflict in this area. ITe testified, without contradiction, that the designation “Smokeless Powder for Cannon” is only used in connection with shipments of bulk smokeless powder. According to him the designation as “Smokeless Powder For Cannon” was erroneous, and the correct designation is “Ammunition for cannon without projectile”. This conclusion is supported by the record.
Tariff Definitions and Glassification History
26. (a) The phrase “blank cartridges” first appeared in Consolidated Freight Classification (CFC) No. 1, dated in the year 1919, which reads in pertinent part:
Item Articles
12 ammunition, explosive,
* * * * *
14 For Cannon:
$ $ $ $
16 With explosive Projectiles, subject to tariffs of individual carriers.
17 Without Projectiles (Blank Cartridges, metal):
Item, Articles
9 AMMUNITION, EXPLOSIVE,
10 For Cannon:
11† With empty, sand-loaded or solid Projectiles
(Loaded Cartridges) or without Projectiles (Blank Cartridges, metal):
* * N> * ‡
With explosive Projectiles, subject to tariffs of individual carriers.
CFC No. 3 contains an explanation of abbreviations and symbols used throughout and provides:
In the descriptions of articles * * * the descriptive terms appearing within parentheses constitute another description of the identical article immediately preceding the parentheses.
(c) Supplement No. 4 to CFC No. 5, effective April 30, 1928, contained the same description as CFC No. 3 above, and provided as follows:
(e) Supplement No. 24 to CFC No. 6, issued May 23,1931, effective July 6,1931, contained the following:
Item Articles
1800 ammunition, * * *
:fs # # ‡
1810 Ammunition, fixed, for cannon, witb empty, sand-loaded or solid projectiles, loose or in packages.
1815 Ammunition fixed, noibn, for cannon, loose or in packages.
jji # * # *
1870 Cartridges, cannon, blank, loose or in packages.
(g) Supplement No. 5, effective May 8, 1941, provided:
Item Articles
Δ 1800-A ammunition, Explosive, Incendiary, or Gas, Smoke or Tear Producing, * * *
$ $ $ $ $
1810-A Ammunition, fixed, for cannon, with empty, sand-loaded or solid projectile, loose or in packages.
1815-A Ammunition, fixed, noibn, for cannon, loose or in packages.
ift # sfc ¿¡t %
1870-A Cartridges, cannon, blank, loose or in packages.
27. “Ammunition for cannon without projectile” is not listed as such in Consolidated Freight Classification No. 16, issued October 24, 1943, effective December 6, 1943. (See finding 11(f), supra.) However, an examination of the evolution of the term “blank cartridge”, with respect to the classification of commodities for transportation purposes, establishes that it has been the practice of freight classification to consider ammunition for cannon without projectile the same as “Cartridge, cannon blank” — and no significance has been attached to the ordnance meaning of blank am-mnmition.
28. The rates applied by defendant were determined by Mr. Harold G. Pederson, a Transportation Specialist in the Transportation Division of the General Accounting Office.
After additional reference to Army TM 9-1901, September 1950, and Joint Army and Air Force Commercial Traffic Bulletin No. 16, entitled “breight classification guide”, dated February 13, 1950, compiled solely for use of transportation officers (see finding 17 (i), supra), and Agent W. S. Topping’s Freight Tariff No. 4, Interstate Commerce Commission Regulations for Transportation of Explosives and Other Dangerous Articles by Freight, (see finding 17(e), supra), Mr. Pederson concluded that freight nomenclature for “Charge, propelling (in Case, cartridge, M24) ” for the 120-mm, Ml, antiaircraft gun was “Cartridge, cannon, blank.” He stated that he considered the ordnance definitions with respect to “blank” and “fixed” ammumtion, but that neither definition affected his determination. While Mr. Pederson admitted lack of experience and knowledge with respect to military weapons or ordnance, which may render any opinion he might offer in that area suspect, it does not render his classification for transportation purposes unreliable.
Fused Ammunition
29. The defendant has applied a combination rate
30. The commodity rates provided in TCFB Tariffs 4-U and 4-V were in effect at the time Category 2 and 4 shipments were made, and neither tariff contains an entry for “Cartridges, cannon, blank”. There is, however, an entry for “Ammunition, fixed, for cannon, with empty, sand loaded or solid projectiles or without projectiles” in both of said tariffs. (See finding 11 (d) and (e).) In view of the background of the term fixed, it is concluded that such term is not restricted to a description of ammunition for cannon with projectiles, but also includes ammunition for cannon without projectiles. Thus, for purposes of the commod
31. The parties have stipulated that if the rates applied by plaintiff for all five categories of shipments (as defined in findings 5 through 9, respectively) are held applicable, plaintiff is due the sum of $15,704.30 from defendant; that if the rates applied by defendant for the first four categories of shipments in dispute are held applicable, the defendant is entitled to recover from plaintiff the sum of $4,857.02, less $1,314.44 due plaintiff for the shipment in Category 5 (finding 9, supra), or a net amount due the defendant of $3,542.58; and that if the rates claimed by either party are held applicable in part and inapplicable as to the remainder, then the exact amount due one party by the other shall be determined pursuant to Rule 47(c) of this court.
Ultimate FINDINGS of Fact
32. The commodity shipped is described in ordnance terminology as “Charge, propelling (in case, cartridge M-24) 120-mm gun”, and described in transportation terminology as “Ammunition for cannon without projectile.”
33. Consolidated Freight Classification No. 16 does not contain a specific entry for “Ammunition for cannon without projectile”, but the entry therein for “Cartridges, cannon, blank * * *” has historically, for purposes of freight classification, been used to identify “Ammunition for cannon without projectile.”
35. The commodity shipped is included within the descriptive nomenclature “Ammunition, fixed, for cannon, with * * * projectiles or without projectiles,” contained in both Trans-continental Freight Bureau Tariffs No. 4-IT and 4-V, as published. (See finding 30, supra.)
36. The Combination Article (see finding 13, supra), is inapplicable since the commodity is classified in Consolidated Freight Classification No. 16.
37. With respect to the shipments involved in Categories 1 and 3, the applicable charge should be computed upon a Class 4 rating published in Item 1835 of Consolidated Freight Classification No. 16 applying to “Cartridges, cannon, blank, * *
38. With respect to the shipments embraced in Category 2, the applicable charges should be computed on a combination of rates over Seattle and Everett, Washington, using as one factor the rates published in Item 1606 of Trans-continental Freight Bureau Tariff 4-U to Seattle and Everett applying to “Ammunition, fixed, for cannon, * * * without projectiles”, and the Class 4 rating named in Item 1835 of Consolidated Freight Classification No. 16 for “Cartridges, cannon, blank, * *
39. With respect to the shipments in Category 4, the applicable charge should be computed by using the Class 4 rating named in Item 1835 of Consolidated Freight Classification No. 16 from origin to Panhandle, Nebraska; from Panhandle to Everett, Washington, the commodity rate published in Item 3200 of Trans-continental Freight Bureau Tariff 4-V; and beyond Everett, the Class 4 rating named in Item 1835 of Consolidated Freight Classification No. 16.
40. On the shipment embraced within Category 5, plaintiff is entitled to recover $1,314.44, as stipulated.
41. On the remaining shipments in all other categories, defendant is entitled to recover $4,857.02 from plaintiff.
Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that the defendant is entitled to recover, under its counterclaim, the amount of $3,542.58, and judgment is entered to that effect. Plaintiff’s petition is dismissed.
The court finds that “there is no distinction, for the purposes of rate classification, at least on the basis of the above commodity tariffs, between ammunition for cannon with or without projectiles, except that ammunition with explosive projectiles, not being listed, are not subject to commodity rates.”
See, also, Webster’s New International Dictionary p. 230 (1961 Ed.) which simply defines a “blank cartridge” as “a cartridge having in place of a projectile a wadding (as of paper) sealed in the mouth of the ease.”
In its answer to plaintiff’s petition herein, defendant denies it issued the bills of lading involved and aUeges that they were prepared by defendant for the convenience of the carrier who issued them under the provisions of 49 U.S.C. 20(11) (1958 ed.). In view of the fact that a stipulation filed by the parties refers to the documents in question as “Government” bills of lading and that the designation thereof is not relevant to the question to be resolved here, they are described as “Government” bills of lading.
See finding 31, infra, which shows that the parties stipulated the amounts in dispute and due one or the other, depending upon the rates found by the court to be applicable to the several categories of shipments involved in this suit.
Defendant did not request findings with respect to the applicability of the statute of limitations to any part of plaintiff’s claim nor make any mention of this defense in its brief to the commissioner. Accordingly, it appears that defendant has abandoned its position in regard thereto. In any event, considering the record shows that plaintiff filed suit on July 24, 1962; that defendant made the first deductions from other amounts due plaintiff on July 7, 1959, and the last on November 1, 1961, it is clear plaintiff’s petition was timely because its cause of action accrued on the dates the deductions were made. St. Louis-San Francisco Railway Co. v. United States, 150 Ct. Cl. 610, 619 ; 280 F. 2d 838 (1960).
These numbers refer to plaintiff’s bill of freight charges submitted to defendant. Various shipments, as identified on the Government bills of lading, are included in each charge and are not to be confused with the bills of lading.
Pormerly reported as 4.7" Gun, Ml (Antiaircraft).
This illustration was received in evidence as a part of Defendant’s Exhibit No. 5 (page 40).
Denotes change not involving reduction or advance.
Denotes changes in wording which result in neither increases nor reductions in charges.
A combination through rate applies over a route when there is no single factor rate applying between the point of origin and destination. (See Great Northern Ry. Co. v. United States, supra.) The evidence does not disclose whether such a single factor through rate exists or is applicable in this case. However, plaintiff has not disputed the propriety of the combination and, therefore, it is unnecessary to consider this question.
Lead Opinion
This case was referred to Trial Commissioner Franklin M. Stone, with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on January 28, 1966. Exceptions to the commissioner’s findings and recommended conclusion of law were filed by plaintiff. The defendant requested the court to adopt the commissioner’s opinion, findings and recommended conclusion of law. Briefs were filed by the parties and the case was submitted to the court on oral argument of counsel. Since the court is in agreement with the opinion, findings and recommendation of the commissioner, with slight modification, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Plaintiff is, therefore, not entitled to recover on its claim, defendant is entitled to recover on its counterclaim, plaintiff’s petition is dismissed and judgment is entered for defendant on the counterclaim in the sum of $3,542.58.