DocketNumber: No. 45227
Citation Numbers: 100 Ct. Cl. 175
Judges: Ijustice, Jones, Littleton, Madden, Took, Whaley, Whxtaeer
Filed Date: 10/4/1943
Status: Precedential
Modified Date: 11/23/2022
delivered the opinion of the court:
The pertinent provisions of Paragraphs 1 and 2 (a) of the Land-grant Equalization Agreement are set forth in finding 2. The dispute concerns only the selection of land-grant routes for the purpose of determining the proper freight «charges' to the defendant under the terms of this agreement for government shipments made over plaintiff’s lines and • its connections. Plaintiff was not a land-grant railroad and it was for this reason that it entered into the equalization ¡agreement referred to. The question in issue is, did the agreement between the parties provide for or require freight -charges to the government for transportation of the shipments of government property over the actual routes of movement based upon lawful rates on file with the Interstate Commerce Commission, less deductions for land-grant over the land-aided or land-grant routes affording the lowest net rates, or on some other basis.
The third cause of action has been settled by stipulation and presents no controversy. See Finding 24.
The provision of the agreement in question seems plain enough without resort to construction when it is interpreted according to the ordinary signification of the language used, but plaintiff contends that under a proper construction of the agreement based on what it contends was the intention of the parties, it agreed only to equalize net freight rates computed via competitive routes, that is, routes which are in fact competitive in the ordinary commercial sense, and that it did not agree and is not required to equalize to the government net rates computed in each case via the land-grant route from point of origin to destination in fact producing the lowest net rate, regardless of whether such route is in fact commercially competitive and regardless of how circuitous and impractical it may be. In addition plaintiff asks the court to define the term “competitive routes.” The unambiguous language of the equalization agreement expresses the final intention of the parties as to the routes and rates and the legal import of such language is opposed.to plaintiff’s contention.. Simply stated, the plaintiff by Paragraph 1 of the equali
It would appear from the Regulations of the Quartermaster General, U. S. Army, issued in 1916 and existing at the time the agreement in question was made (see also Act of July 5, 1884, 23 Stat. 107, 111), that any general or special limitation or qualification such as that for which plaintiff now contends was purposely left out of plaintiff’s stipulation “to accept the lowest net rates lawfully available” to the Government over available land-grant routes. Those Regulations (Manual for the Quartermaster Corps, U. S. Army, 1916, App. No. 9, Vol. 2, p. 223; Quartermaster General Circular No. 15, May 18, 1922), provided in part as follows:
Particular attention is invited to the special exceptions of certain carriers to both passenger and freight agreements. Where these special exceptions provide that the carriers shown in the margin will not equalize*197 the lowest net rates available on certain specified traffic,, such traffic should not be forwarded via the carriers, shown, unless no other route is available. Where special, exceptions provide that lowest available rate will not. be protected via certain routes, such routes should not be used.
We cannot amend the agreement which the parties themselves elected to make, by undertaking to prescribe qualifications as to distance or percentage of circuity of available' land-grant routes. As written, the equalization agreement, is easily understood and simple of administration, and the language used discloses that this was intended as one of the-main objects of the agreement, whereas the construction for which plaintiff contends would unavoidably result in uncertainty, confusion, and constant controversy, as the facts in this case so clearly demonstrate. In between the routes used' by defendant and the routes used by plaintiff, there are many alternative routes. Which shall be chosen if we depart from the clear and definite language of the equalization agreement which gives the government “the lowest net rates lawfully available * * * from point of origin to destination at. time of movement”? The answer as to what other routes, should be used can not be found in the equalization agreement and is impossible on the record as it stands, and probably never could be arrived at, either administratively or' judicially, with any degree of satisfaction without a detailed and expert inquiry into each case and the adoption of an arbitrary allowable percentage of circuity. We can find no* justification or authority in the language or intention of the agreement for the selection by the court of some intermediate available route which produces a higher net freight rate to' plaintiff than the “lowest net rate lawfully available, as derived through deductions account of land-grant distance from the lawful rates filed with the Interstate Commerce-Commission applying from point of origin to destination.”' Any question as to whether it is unfair and unreasonable to require plaintiff to equalize net charges computed at lawful tariff rates via the land-grant routes used by defendant is foreclosed by the tariffs lawfully on file with the Interstate Commerce Commission. The question of reasonableness of
Under the equalization agreement and the routing instructions of the applicable lawful tariffs the defendant has, as •shown by the findings, overpaid plaintiff a total of $1,688.56 •on certain items of shipments and underpaid it a total of ‘$386.83 on other items, or a net overpayment of $1,251.73, for which counterclaim is made. See findings 11, 13, and 24.
The amount of $386.83 which plaintiff is entitled to receive is less than the amount of the overpayment to it for which the defendant is entitled to recover $1,638.56 on its counterclaim. Judgment will therefore be entered in favor of the defendant for the difference of $1,251.73. It is so •ordered.