JoNes, Chief Judge,
delivered the opinion of the court:
The question is what rates should apply to shipments of troops and equipment on coach-freight military trains from Camp Blanding, Florida, to Camp Forrest, Tennessee.
During the months of March, May and June 1948, plaintiff and connecting carriers operated 45 special coach-freight military trains between the points mentioned, carrying a total of 13,556 officers and enlisted men and military property.
Several different routes were available. An equalization agreement was entered into by the terms of which the carriers agreed to accept for the transportation of persons rates to be determined as set out in the agreement. Pertinent parts of this agreement are set out in finding 4.
The agreement stipulated that the rate should be determined by the usually traveled route for military traffic at the time of movement, and that the usually traveled route for the determination of the rate should be that over which it would be practicable and economical to actually route the special car, or special train military traffic. The agreement further stated that the "usually traveled route for military traffic" should in the first instance be construed by the administrative officers of the military branches of the United States Government.
The plaintiff billed the Government on the basis of a net coach fare of $11.38 per person. The defendant declined to pay on this basis, claiming that the rate should have been $9.16 per capita, as measured by a different and longer route. The longer route would have produced a lower rate because of the fact that it would have been a land-grant shipment all the way.
The map which is set out in one of the exhibits shows that there were five routes from Camp Blanding, Florida, to Camp Forrest, Tennessee. The shortest rail connection between the two points is 588 miles, by what is known as the Southern route; another, by what is known as the Everett route, is 599 miles; another, by the Seaboard route is 667 miles, while what is known as the Savannah route is 697 miles. The route for which the defendant contends, which was known as the Pensacola route, is 921 miles long.
Pursuant to the terms of the equalization agreement that what constituted the usually traveled route for military traffic should in the first instance be construed by the administrative officers of the military branches of the United States Government, Col. E. B. Gray, Chairman of the Usually Traveled Route Committee, on September 25,1950, wrote the Chairman of the Southern Passenger Association in reply to a letter with respect to the movement of the troops involved as follows:
1. In reply to reference (b), you are advised that in the opinion of the Usually Traveled Route Committee, the route from Camp Blanding (Theressa), Fla., to Camp Forrest (Tullahoma), Tenn., via SAL, Chattahoochee, L&N Nashville, thence NC&StL, was not a usually traveled route, for special train (coach) military traffic in March 1943.
A similar letter was written by Colonel Gray in connection with a later shipment. Both of these letters were in reference to the Pensacola route and both definitely ruled that it was not a usually traveled route for coach military traffic. Thus the Army officers, familiar with actual operations, and who had been specially commissioned to determine the matter in the first place, decided on both occasions adversely to the contention here made by the defendant.
The General Accounting Office, however, determined that the Government should have had the benefit of the so-called Pensacola route and deducted from the total amount the difference between the two rates.
The issue turns on whether or not the longer route known as the Pensacola route was a practicable and economical route over which to transport the troops by mixed train.
The record shows that such mixed coach-freight trains had never been run for military transportation from Camp Blanding, Florida, to Camp Forrest, Tennessee, over the Pensacola route, nor were any of the shipments involved in this case so transported.
The plaintiff agreed to accept the lowest rate that could be determined by using any one of the four other routes and it thus billed its accounts on the basis of the lowest of those rates. While there were no actual schedules for mixed coach-freight military trains over the Pensacola route, we find from the various estimates that the actual running time for that route would have been 44 hours and 15 minutes, while the running time over the Southern route was 29 hours and 15 minutes, and over the Everett route 31 hours and 45 minutes.
To have used the Pensacola route would have resulted in an unnecessary expenditure of equipment, fuel and crews. Due to the changes on the more circuitous route it would have required more crews and more engines for each train. It would have resulted^ in delay in transit due to the longer running time and would have placed further stress on the coaches which were urgently needed by the railroads during the war period. In addition, if the more circuitous Pensacola route had 'been used for the transportation, it would have been necessary under the operating rules of the carriers to return the trains by the same route and this would have further delayed the movement and further complicated the shortage of rolling stock during that period.
The Army disliked to keep soldiers traveling by coach on the train more than one night in succession. It would have been necessary, if the longer route had been used, to keep them on the train two successive nights. In all the circumstances we find that it was not "practicable and economical to actually route" the special car or special train military traffic over the Pensacola route. As a matter of fact, the Pensacola route was not even suggested nor considered by the participating railroads or the transportation officers of the Army as a practicable route for such traffic and was never used for traffic of the character here involved.
The defendant cites the case of the Southern Railway Co. v. United States, 322 U. S. 72. However, that case involved a freight rate land-grant equalization agreement which was worded very differently from the passenger equalization agreement here involved. In that case the railroad agreed to accept the lowest net rate "lawfully available" and both this court and the Supreme Court held that the longer route was lawfully available. In other words, the Court held that the Government could use any rate-making route it chose.
In the case at bar, however, the agreement requires the carrier to accept the lowest net fare, applying any land-grant route recognized as a "usually travelled route for military traffic." It then defined that term by saying that it must be a route that is both practicable and economical. The Supreme Court in the case just cited recognizes this distinction between the two classes of agreements. We quote from the Court's opinion at page 77:
At times the United States has made equalization agreements which were more favorable to the equalizing carriers than the instant one appears to be. Thus in 1917 a passenger land-grant equalization agreement was made with petitioner and other carriers whereby they agreed to accept the lowest net fare "lawfully available, as derived, through deductions account land-grant distance via a usually traveled- route for military traffic, from a lawful fare filed with the Interstate Commerce Commission as applying from point of origin to destination via such route at time of movement." (Italics added.) That agreement suggests that when the United States desired to give equalizing carriers more favorable rates than the lowest rates to which it was lawfully entitled on land-grant routes, it chose apt words to express its purpose. It also gives added significance to the omission of any such qualification in the present agreement. It suggests that if we read into the agreement the qualification which the petitioner desires, we would remake the contract.
As stated by the Supreme Court in the above quotation, to sustain the defendant's contention we would be required to remake the contract. The limitations set out in the equalization agreement in the case at bar would be entirely removed and the Govermnent could choose any route it saw fit, regardless of the expense, regardless of its practicability and regardless of its economical use. We do not believe the equalization agreement here involved is open to any such construction.
It was stipulated at a pretrial conference that in the event the court decided the Pensacola route could not be used for rate making in this case, then the lowest rate available to the Government was $11.38 per person, this being the lowest rate for transportation of this character over any of the four available routes.
The plaintiff is entitled to recover the sum of $30,094.32.
It is so ordered.
Laramore, Judge; Madden, Judge; Whitaker, Judge; and Littleton, Judge, concur.
FINDINGS OF FACT
The court, having considered the evidence, the report of Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows:
1. Plaintiff is a corporation duly organized and existing under the laws of the State of Georgia, and now is and was,. during all the times hereinafter mentioned, engaged as a common carrier by railroad in the transportation of passengers and freight for hire in interstate and intrastate commerce.
2. Plaintiff's lines of railroad connect with the lines of other common carriers engaged in interstate and intrastate commerce, and at all times hereinafter mentioned, the rates, fares and charges for the transportation services of plaintiff and its connecting carriers were duly published in tariffs, lawfully on file with the Interstate Commerce Commission.
3. During the months of March, May, and June, 1943, plaintiff and its connections handled 45 special coach-freight military trains from Camp Blanding (Theressa), Florida, to Camp Forrest (Tullahoma), Tennessee, carrying a total of 13,556 officers and men and military impedimenta. These trains were routed via the plaintiff's line of railroad from Camp Blanding to Macon, Georgia; thence by the lines of the Southern to Chattanooga, Tennessee, and NC&StL beyond, said route being hereinafter referred to as the Southern route. These movements were a part of the movement of the 79th and 30th Divisions and a few separately scheduled trains, from Camp Blanding, Florida, to Camp Forrest, Tennessee, in March, April, May and June, 1943. At that time Camp Blanding was served by two railroads, the GS&F and the SAL. Approximately half the movements were handled by GS&F as initial carrier, and half by SAL as initial carrier.
4. At the time of the said movements the plaintiff and the defendant were parties to two agreements entitled Joint Military Passenger Agreement No. 19 and Joint Military Passenger Equalization Agreement No. 19, these documents being hereafter called the Passenger Agreement and the Equalization Agreement. By the terms of the first, the car riers agreed to carry members of the armed forces, and some other classes, traveling on Government transportation requests, at net fares established as prescribed in the Equalization Agreement, less 5% where no land-grant deductions are applicable and less 3% where land-grant deductions were applicable. In the Equalization Agreement the carriers agreed to accept for the transportation of persons, for whom the United States Government was lawfully entitled to reduced fares or charges over land-grant routes,
the lowest net fare or charge and the lowest net excess baggage rate lawfully available, as derived through deductions account land-grant distance, from the fare or charge, FBOM POINT OF OBIGIN TO DESTINATION, applying via routes established wader the provisions of Condition 1, paragraphs (JT), (J2), (JS), (J]¡), or (JS), in the order of their precedence, recognized as a usually traveled route for military traffic at time of movement.
The Equalization Agreement also contained the following provision under the heading, "Conditions":
(6) Method for Determining Usually Traveled Eoutes for Military Traffic.
A usually traveled route for Military traffic as referred to herein is a route authorized in lawfully filed tariffs from starting point to destination, established under the provisions of Condition 1 hereof, over which it would be practicable and economical to actually route individual, special car or special train military traffic as the case may be. What constitutes a "usually traveled route for Military traffic" as provided in this agreement shall, in the first instance, be construed by the Administrative Officers of the Military Branches of the United States Government, provided that distance, time in transit, track connections, train service and connections, points of interchange in accordance with the established practices of the carriers in handling commercial traffic and other pertinent conditions shall be considered as factors in determining the question; but it is mutually agreed that before such determination is made, carriers shall be called upon for an expression of their views as to the use of any suggested route and as to the basis for establishing the net fares; this action in no way to prejudice the right of the carriers to file a suit in the Court of Claims for adjudication on its merits in any case in which the decision of the Government representatives is unsatisfactory to the carriers; provided further that in any such proceedings in the Court of Claims, the parties hereto hereby agree that no evidence shall be admissible of the right of the said Administrative Officers of the Military Branches of the Government to determine the question in the first instance.
5. In pursuance of the foregoing provisions of the Equalization Agreement, plaintiff billed the defendant for the transportation services described in finding 3 hereof on the basis of a net coach fare of $11.38 per person applying via SAL from Camp Blanding to Everett, Georgia; thence via the lines of Southern to Atlanta, Georgia, and NC&StL beyond, hereafter called the Everett route. Defendant paid plaintiff's bills as rendered.
6. During the years 1945-1947, both inclusive, plaintiff and its connections handled for defendant certain troop movements described in Paragraph IV of the petition and exhibits 1-3 thereto, incorporated herein by reference, but defendant refused to pay plaintiff's bills as rendered for such transportation services, and made deductions therefrom in the amount of $30,094.32 on the ground that it had been overcharged by plaintiff on the 1943 troop movements from Camp Blanding to Camp Forrest, described in finding 3 above. Defendant computed the charges on the 1943 troop movements at $9.16 per capita rather than at $11.38 per capita which had been originally paid by defendant, the contention being that the $9.16 charge was the correct charge via SAL to Chattahoochee, Florida, thence by the lines of the L&N to Nashville, Tennessee, and NC&StL beyond, hereafter called the Pensacola route. Plaintiff submitted to defendant supplemental bills for the 1945-1947 movements aggregating $30,094.32, the amount of the aforesaid deductions, and that amount is due and owing to plaintiff unless the defendant can justify the deductions by showing that the net rate for the 1943 movements should have been computed via the Pensacola route.
7. The net fare claimed by plaintiff of $11.38 is derived from a gross fare of $12.35, via the Everett route, as follows:
8. The issue in this case is whether the Pensacola route, used by the General Accounting Office to establish a net fare of $9.16, was a usually traveled route within the meaning of the Equalization Agreement for military traffic at the time of the movements in question.
9. If the Pensacola route is not available under the terms of the Equalization Agreement, the lowest net fare available is $11.38 established via the Everett route.
10. Upon request of the Office of the Chief of Transportation of the Army, the Southern Passenger Association, through its Chairman, suggested routes and schedules for the movement of the 79th Division at a meeting in Atlanta on February 25,1943, between the military authorities and the representatives of the carriers. The suggested schedules, calling for departures from Camp Blanding at 6:00 a. m., 10:00 a. m., 2:00 p. m., 6: 00 p. m., and 10:00 p. m., were accepted by the military authorities, but two days later the Office of the Chief of Transportation in Washington telephoned the Chairman of the Southern Passenger Association and stated that in checking over the schedules it developed that some of them required two nights en route, and since the troops were riding in coaches the request was made that certain specific trains be changed from one route to another in order to avoid two nights en route. This was done and when the schedules for the movement of the 30th Division were prepared, through similar procedure on May 19, 1943, such schedules did not contemplate more than one night in transit.
11. The map, attached to plaintiff's proposed findings, which is a reproduction of plaintiff's exhibit No. 3, is incorporated in these findings by reference. It shows five routes from Camp Blanding, Florida, to Camp Forrest, Tennessee, with total mileage in each instance, as follows:
Route Mileage
(1) Via GS&F as initial carrier to Macon, thence Southern to Chattanooga, NC&StL beyond, herein referred to as the Southern route_ 588
(2) Via SAL as initial carrier to Savannah, Cof G to Atlanta, NC&StL beyond, herein referred to as the Savannah route-697
(3) Via SAL as initial carrier to Jacksonville, ACL to Albany, CofG to Atlanta, and NC&StL beyond, herein referred to as the Seaboard route_ 667
(4) Via SAL as initial carrier to Everett, Southern to Atlanta, NC&StL beyond, herein referred to as the Everett route_ 599
(5) Via SAL as initial carrier to Chattahoochee, L&N to Nashville, NC&StL beyond, herein referred to as the Pensaoola route_ 921
12. The Equalization Agreement provides in part in Condition (6) on page 10 that what constitutes a " 'usually traveled route for Military traffic' " shall, in the first instance, be construed by the Administrative Officers of the Military Branches of the United States Government. On September 25, 1950, Col. E. B. Gray, Chairman of the Usually Traveled Route Committee, wrote the Chairman of the Southern Passenger Association in reply to his letter of June 30,1950, with respect to the movement of the 79th Division in March, 1943, as follows:
1. In reply to reference (b), you are advised that in the opinion of the Usually Traveled Route Committee, the route from Camp Blanding (Theressa), Fla., to Camp Forrest (Tullahoma), Tenn., via SAL Chattahoochee, L&N Nashville, thence NC&StL, was not a usually traveled route for special train (coach) military traffic in March 1943.
An identical finding was made by the Usually Traveled Route Committee with reference to the transportation of the 30th Division in May 1943.
13. Military coach-freight trains are not run on passenger train schedules and running time of such mixed trains is considerably longer than the running time of passenger trains over the same route.
14. The Pensacola route was 921 miles in length with an estimated running time of 44 hours and 15 minutes as opposed to the 588 miles via the Southern route with required running time of 29 hours and 15 minutes and the 599 miles in the Everett route, with a required running time of 31 hours and 45 minutes. While the estimates varied, some of them being greater and some less, we find from all the testimony that 44 hours and 15 minutes was the reasonable length of time that would have been required for a mixed passenger and freight train to travel from Camp Blanding to Camp Forrest over the Pensacola route.
15. If these 45 trains had been sent via the Pensacola route it would have resulted in an unnecessary expenditure of equipment, fuel and crews. That route would have required more crews and engines for each train than the 5 engines and 5 crews for each train actually used on the Southern route.
16. The use of the Pensacola route by these troop trains, which was longer and more circuitous than the Southern route, would have resulted in delay in transit due to the longer running time and would have placed further stress on the coaches which were urgently needed by the railroads. When the coaches used in the transportation of the 79th Division were unloaded, they were immediately returned via the Southern route to Camp Blanding in order to obtain the maximum use of the equipment by making a second trip to Camp Forrest and for use in other military movements in the area. If the trains transporting this Division had used the Pensacola route, the equipment would have been returned via that route instead of the Southern route and this would have further delayed this movement. The coaches used in the transportation of the 30th Division were not returned to Camp Blanding but were delivered by the NC&StL to other carriers for use in military trains moving out of Alabama and Tennessee where the demands for coaches were extremely heavy, primarily in an Air Force program.
17. The Pensacola route, between Chattahoochee and Pensacola, at the time involved, contained light bridge structures which prevented the use of heavy motive power and if that route had been used 21 of the 45 trains, which contained more than 30 cars each, would have required the use of 2 engines between those points at a time when motive power was in short supply.
18. The Pensacola route was not suggested or considered by the participating railroads or the transportation officers of the Army as a practical route for military traffic, and was never used for such traffic of the character here involved.
19. Taking into consideration distance, time and operating conditions, the Pensacola route was not a practical or economical one for use by the special military mixed coach-freight trains in March, May and June, 1943, and such route was not recognized as a usually traveled route for military traffic during said period.
CONCLUSION 03? LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and it is therefore adjudged and ordered that it recover of and from the United States thirty thousand ninety-four dollars and thirty-two cents ($30,094.32).