Jones, Chief Judge,
delivered tbe opinion of tbe court:
Tbe single issue in this case is whether tbe transportation charges on tbe shipments involved should be based on domestic rates as plaintiff contends, or upon export rates, tbe basis on which payments were made.
The commodities involved were shipped from Arsenal and Ogden, Utah, to Seattle, Washington. Tbe bills of lading showed on their face that the shipments were intended for export and were consigned to the Port Transportation Officer, Port of Embarkation, Seattle, Washington. The bills of lading were receipted for by tbe Port Transportation Officer. After delivery to the Port Transportation Officer, the shipments were loaded on ocean steamships for overseas destinations.
The plaintiff originally billed the Government and was paid freight charges based on tbe export rates provided in A.A.R. Section 22 Quotation No. 265-A, pertinent parts of which are set out in finding 3.
About two years later plaintiff filed supplemental bills claiming it was entitled to the domestic rates. The basis for the claim for the additional compensation was that the defendant had failed to furnish notices or export certificates showing that the shipments actually went into exportation. The port allowance of three cents per hundred pounds was refunded to plaintiff by supplemental payments.
By the terms of A.A.R. Section 22 Quotation No. 265-A the export rate was made available to the Government for shipments made to a port of embarkation destined for export but attached to and a part of the agreement was the provision that within 60 days after exportation an authorized Government representative would furnish the carrier a certificate to the effect that the traffic was loaded for a point within the destination area covered by TCFB Export Tariff 29-series. It was further provided that the certificate should be sufficiently specific to enable the accounting departments to determine what rates should be applied in cases where different rates were named in the export tariff for particular countries of destination and should show separately the traffic loaded at the port provided for in the Quotation and the name of the port through which the actual exportation was made.
As shown by finding 4, the carriers who were parties to the Quotation were to prepare bills initially for traffic identified as export on the basis of export rates, with an appropriate notation that the bills would be subject to correction if the certificate of exportation was not furnished within 60 days, and that in such event supplemental bills would be rendered for the difference between the Quotation rates and the charges under the regular domestic tariffs.
Admittedly this certificate or notice was not furnished within the 60 days stipulated in the schedule.
It is the contention of plaintiff that since the certificate was not furnished within 60 days the terms were not complied with and that the plaintiff was entitled to the domestic rather than the export rate. This suit is for the difference between the two rates.
It is the position of the defendant that the plaintiff had full knowledge that the shipment was intended for export; that the bills of lading so provided upon their face; that the shipments actually went into export; that all of the conditions were met except the actual giving of notice and that since plaintiff had knowledge that it was an export shipment there was substantial compliance with the conditions; that no damages resulted from the failure to give notice and that the primary purpose of notice was for the use of plaintiff's accounting department.
The question then is narrowed to the issue as to whether the failure to give the specific certificate was sufficiently vital to justify the allowance of the domestic rates rather than export rates on shipments that actually went into export, the single ground being that the notice or certificate was not actually furnished within the 60 days specified in the schedule.
When all the circumstances in this special case are considered and since there are no other complicating factors, we are inclined to agree with the position taken by the defendant. We base this conclusion purely upon the facts in this individual case which presents the naked issue as to whether the after-the-fact failure to give the notice or certificate was sufficient to justify the increase in rates.
The plaintiff already knew that the shipments were going into export. They actually went into export. It was some two years later that the claim was made on the basis indicated.
The plaintiff relies on our decision in the case of Union Pacific Railroad v. United States, 132 C. Cls. 213, but that case, it seems to us, is distinguishable. In that case there were many complicating factors, including the unloading and storage-in-transit privileges.
In reaching our conclusion we do not in any sense justify the defendant in failing to furnish the notice or certificate of exportation. It should have been furnished. It was apparently overlooked. We recognize that people do sometimes forget. One is reminded of the story of the dozing student who was suddenly asked by the professor the question, "What is electricity?" The young man, batting his eyes, said, "Doctor, I did know, but I forgot." To which, the instructor replied, "Well, that is too bad, you are the only man in the history of the world who ever knew what electricity is and you forgot." In this instance, however, both parties apparently knew all the essential facts.
No real damage is done to anyone by applying the rates which the facts fully justify, except for the condition which has been mentioned. We find that the ends of justice are reached by denying recovery and that in the peculiar circumstances of this case it would not be just to allow the full recovery sought by the plaintiff.
It has been stipulated by the parties, as outlined in finding 11, that if the position of plaintiff is sustained it is entitled to recover the net sum of $14,121.51, and that if the export rates are applied the defendant is entitled to recover against plaintiff the net sum of $1,227.01.
The petition is dismissed and defendant is given judgment against the plaintiff on its counterclaim in the sum of $1,227.01.
It is so ordered.
Beyan, District Judge, sitting by designation; Madden, Judge, and Whitaker, Judge, concur.