Littleton, Judge,
delivered the opinion of the court:
The plaintiff seeks to recover $19,411.59 representing the difference between the amount claimed by it for certain transportation services furnished the defendant by the plaintiff's predecessor in interest, the Great Lakes Greyhound Lines, Inc., and the amount paid by the defendant for those services.
Between March 1,1943, and October 31,1946, the plaintiff transported, in chartered buses, selectees of the U. S. Armed Services within the State of Michigan, between the offices of the local draft boards and the induction or examining centers. Prior to and at the time the round trip charter services in question were furnished, the plaintiff was a party to a general agreement, known as Selectee Passenger Agreement No. 1, hereinafter referred to as Selectee Passenger Agreement, executed by the National Bus Traffic Association, Inc., agent for the plaintiff, and the Director of Selective Service. The purpose of this agreement was to aid in establishing and maintaining a close cooperation between the passenger motor carriers and the Selective Service System in order to provide a workable arrangement in meeting the transportation needs of the local draft boards throughout the Nation. This agreement became effective on September 15,1941, and remained in force throughout the entire period covered by this suit. Section IY of this agreement provided the method for establishing the transportation charges in question and read as follows:
TENDERS, PARES, RATES AND CHARGES AND CONDITIONS IN CONNECTION THEREWITH.
For traffic covered by this Agreement and subject to conditions herein stipulated the carriers parties hereto through the National Bus Traffic Association, Inc. tender to the Selective Service System the following basis for rates, fares, and charges:
(2) For intrastate rates, fares, or charges between points within States where the State Commissions do not have jurisdiction over passenger motor carriers' rates, fares, or charges, ninety-five percent (95%) of the rates, fares, or charges, including charter rates, made available to commercial traffic.
The above quoted provisions are applicable here since the services rendered were wholly intrastate in character, and the Michigan Public Service Commission did not have jurisdiction over the regulation of rates for charter service. Thus, the Commission did not require that tariffs covering intrastate charter rates be filed with it.
Each instance of service performed under the Selectee Passenger Agreement was covered by a separate written agreement. In the instant case the parties have presented for our consideration the facts concerning only two of such separate agreements covering two items of service. The issues involved in these two instances are common to all services performed under the Selectee Passenger Agreement during the period in question. The parties have agreed that a decision here will be binding with respect to the additional agreements for services which were furnished during the period covered by this suit. In the first of these, the plaintiff on June 2,1944, operated a chartered coach service for Selective Service of Michigan between Port Huron and Detroit, Michigan, which involved the use of two buses. The charges were at the rate of 120 live miles at 35 cents per bus mile and 120 deadhead miles at the rate of 30 cents per bus mile, making a total charge of $120. The deadhead mileage was applied to only one of the buses. After applying the five percent discount allowed by the Selectee Passenger Agreement, the total net charge for the transportation service was $114. In the second, the plaintiff on June 6, 1944, operated a chartered coach service for Selective Service of Michigan between Bay City and Detroit, Michigan. It covered the use of five buses, and the charges therefor consisted of 210 live miles at the rate of 35 cents per bus mile and 210 deadhead miles at the rate of 30 cents per bus mile, making a total charge of $619.50. Here the deadhead mileage was applied to four of the five buses used. Upon application of the five percent discount provided for by the Selectee Passenger Agreement, the total net charge was $588.52.
The plaintiff arrived at its charges of 35 cents per bus mile for the live miles and 30 cents per bus mile for the deadhead miles by subtracting 5 cents per bus mile on each from the rates which it had made available to commercial intrastate traffic, as of June 1, 1942. It was necessary to resort to commercial rates as of that date in order to apply Section IV (2) of the Selectee Passenger Agreement because on that date an order of the Office of Defense Transportation (see finding 3) became effective which prohibited the furnishing of charter service by bus to the general public, and restricted its use to specified types of military transportation needs which included the transporting of draftees.
The rates in all the individual contracts for services, which are here in suit, were calculated by the plaintiff for each separate charter service on the same basis as were the ones set out above. These rates were agreed to by the Selective Service officials in Michigan, and the plaintiff was paid in accordance therewith.
The General Accounting Office, in post-audit, ruled that for the service rendered by the plaintiff the charges were to be determined under the Northeastern Charter Coach Tariff No. 285, hereinafter referred to as Tariff 285, to which the plaintiff was a party. Tariff 285 which had become effective June 15, 1942, had been duly filed with the Interstate Commerce Commission. On its title page, the tariff read that it was to govern rules, regulations, and charges for charter service "between points on lines of issuing carriers." Plaintiff, as a party to the tariff, was listed as an "issuing carrier," and Bay City, Port Huron, and Detroit, Michigan are points on the lines of "issuing carriers." The decision of the General Accounting Office that Tariff 285 was appliable to the services in suit resulted in a total overcharge of $19,411.59, which was subsequently recovered by the defendant from amounts otherwise due the plaintiff. It is this amount which the plaintiff seeks to recover.
As applied to our two test situations, the application of Tariff 285 would show an overcharge of $11.40 on the first, and $189.52 on the second. While the plaintiff was allowed 10 cents more per live bus mile on the first and 5 cents more per live bus mile on the second, the tariff, if applicable, disallowed entirely any charge for the deadhead mileage. This came about because of the provisions of Rule 4 (a) and 4 (d) of Tariff 285. Rule 4(a) read as follows:
Where the movement of passengers terminate at the point of origin (round trip movements) the deadhead mileage is the distance traversed by the coach, unoccupied by the passengers, from the nearest point at which equipment is held out to be available as shown under 4 (d) herein, to the origin point of the passenger movement and charges will be computed as follows:
Rule 4 (d) listed the plaintiff as holding out equipment to be available at Bay City, Port Huron, and Detroit, Michigan. Selective Service of Michigan was not at any time charged for any deadhead mileage whenever the plaintiff actually had equipment available at the point of origin of a selectee-inductee charter movement.
Rule 2 (b) of Tariff 285, to which consideration must be given, states:
All quotations are subject to carrier being able to supply equipment. The operating head at point from which equipment will originate must be consulted prior to' making quotation in order to guarantee equipment. The company reserves the right to reject any and all proposals to parties for Charter or Special Bus Service.
Defendant contends that Tariff 285 is applicable to Michigan intrastate service in general and to the service rendered by plaintiff in particular because (1) the language of Tariff 285 does not restrict its applicability to interstate traffic; (2) plaintiff, by posting Tariff 285 at points on its lines throughout Michigan (as required by I. C. C. Regs.) in effect held out to the public that the tariff was applicable to all charter service, intra as well as interstate. From this, defendant urges that, although the contracts between defendant and plaintiff for the charter service called for higher rates than those provided for in Tariff 285, such contracts are not binding on the United States because the Government officials executing such contracts were without authority to agree to pay rates higher than those tendered to the general public in duly published and authorized tariffs, that is, Tariff 285.
Plaintiff contends that it is entitled to the higher rates provided for in its contracts because (1) that despite the seemingly inclusive language of Tariff 285, Interstate Commerce Commission tariffs have no applicability per se to intrastate services; (2') that the posting of Tariff 285 was in compliance with Interstate Commerce Commission Regulations, and (a) was applicable only to interstate transportation and (b), in any event, its posting held out all the conditions contained in the tariff, including the right of the carrier to refuse to furnish service under the tariff if it was shown that equipment was not available at points of origin; (3) that the services in question were all intrastate in character; and (4) that at the points in question, plaintiff did not have equipment available for charter service. Plaintiff further contends that defendant's representatives could validly enter into the contracts in question both because the tariff was not applicable to those contracts, and that if it was applicable to intrastate service, it was not applicable to the instant contracts because plaintiff did not have equipment available at the points of origin and would have refused service in accordance with Rule 2 (b) of Tariff 285.
The Office of the State Procurement Officer was established in the Selective Service headquarters in Michigan. The existence of Tariff 285 was known to the officials of that office during the period when the service in question was contracted for, and they applied it when inductees were transported interstate from points in Michigan to Chicago, Illinois. They did not nse it in determining the rates of the contracts now in question and by their acts it must be assumed that they believed that the tariff did not apply to intrastate trips. The Office of the State Procurement Officer, in the exercise of its duty in arranging for all transportation matters for the Michigan Selective Service System, gave due consideration to all factors related to the cost of selectee transportation. On the basis of such a study its officials executed these contracts for charter hire. A separate contract identical to those which have been presented as test cases was entered into for each charter movement. The plaintiff furnished certain rates and applied the discount provided for in the general over-all agreement. The officials of Selective Service of Michigan acting through their procurement office became a party to these contracts. The agreements were regular, and their authenticity or the authority of those officials to so contract is not in dispute. The plaintiff was paid in accordance with those contracts.
During the first World War the United States and the Eailroad Associations on behalf of their member railroads entered into a general over-all agreement much like the Selectee Passenger Agreement which we have before us. Its purpose was to provide for a uniform and efficient arrangement for the transportation of military personnel and equipment. It provided that fares should be "lawful commercial fares on file with the Interstate Commerce Commission less 5 percent." Acting under this agreement the railroads transported men and equipment, billing the Government in accordance with what they termed to be the applicable tariff rates minus the five percent. In a post-audit it was discovered that the railroads had failed to apply a tariff which they had on file with the Interstate Commerce Commission, and which the auditors believed applicable. This resulted in an alleged overcharge which the Government recovered by deducting amounts from other sums due the railroads. The railroads then brought suits to recover these deducted amounts. Missouri Pacific Railroad Co. v. United States, 56 C. Cls. 341, was the first of these cases. In that case the court, in rejecting the position taken by the defendant, stated at p. '355:
Where the Government contracts for transportation at a special rate and the plaintiff had on file a special tariff at a less rate than that agreed upon, and which was known to the Government but which was not applied for, and with the conditions of which the Government had not complied, the Government is bound by its contract, as an individual would be.
This rule became the basis for the decisions in other cases which followed, wherein other railroads found themselves in identical positions as respects the furnishing of service under the Railroad Associations' general contract with the Government. Baltimore & Ohio Railroad Co. v. United States, 60 C. Cls. 373; Southern Railway Co. v. United States, 60 C. Cls. 402; Houston da Texas Oentral Railroad Co. v. United States, 64 C. Cls. 362. It likewise was decisive of the issue in Southern Pacific Co. v. United States, 62 C. Cls. 649, where the rates charged for shipments of armor plate were in question.
Here the Government contracted for special transportation services at special rates, that is, 95 percent of those made available to the general public. The plaintiff did have on file a special tariff at a less rate, Tariff 285, and the Government officials knew of its existence. However, the defendant did not apply for the rates offered under that tariff nor did the defendant comply with any of the conditions required by that tariff. Instead the defendant entered into special contracts which contained specified rates.
The construction of tariffs does not substantially differ in character from that of any other document and all pertinent parts and provisions should be taken into consideration, each being given effect if that can reasonably be done. Burrus Mill & Elevator Co. of Oklahoma v. Chicago, R. I. & P. R. Co., 131 F. 2d 532. The condition contained in Tariff 285, which would have been very important in connection with the negotiations in question, is the condition which states that "all quotations are subject to carrier being able to supply equipment." It provided that the operating head at the point from which equipment was to originate must be consulted prior to the acceptance of a proposal under the tariff. The condition further provided that the carrier reserved the right to reject any and all proposals for charter hire if the equipment was not available. Under this tariff the plaintiff company, as an "issuing carrier," was listed as holding out equipment to be available at the cities which were involved in these two test cases. As a practical matter, however, the plaintiff did not have equipment available at those points. The principal reason for this was because of wartime conditions which placed an extra burden on the bus carriers and at the same time cut off the supply of new buses. Thus, if defendant sought to apply Tariff 285 it could only do so subject to this condition, that is, the carrier being able to supply the equipment. This the plaintiff company could not have done. The plaintiff would have refused to furnish the service under Tariff 285, which under this mentioned condition it had the full right to do. To support the defendant's contentions would result in inflicting on the plaintiff a contract which, if it had been afforded the opportunity, it would have rejected. The express terms of the tariff provided for such an opportunity. The plaintiff was not afforded the benefit of that condition because of the action of the defendant in not applying for the application of Tariff 285 at the time the contracts in question were executed.
This court in Bush v. United States, 52 C. Cls. 199, held that before the defendant may invoke tariff rates which differ from those contained in the original contract, it must first show that it has in every way met the conditions of the tariff sought to be imposed. In that case an agreement had been entered into between the defendant and plaintiff whereby the plaintiff was to transport officers and men of the Arkansas Organized Militia at rates set out in the agreement. This contract which was executed July 20,1912, also specified that the listed rates were not subject to further deductions unless it was subsequently found that they were in excess of regular tariff rates, and if so the lower rate would govern. During an audit it was discovered that on May 8, 1912, the plaintiff had established a tariff, the rate of which was lower than that provided in the contract between the pa-rties. Defendant contended that it was entitled to deduct from the claim of the plaintiff the difference between the May 8 tariff rate and the rate agreed upon by the parties in their written agreement. Defendant insisted that this tariff came within the meaning of the phrase "regular tariff rates" contained in their agreement with the plaintiff.
This court held that the defendant was bound by the written agreement with the plaintiff. We stated that the May 8 tariff was a special tariff, and in order to take advantage of it certain conditions had to be complied with. It did not appear that the defendant complied with any of the conditions. The defendant did not apply to the plaintiff for these rates. On the contrary, with full knowledge, or at least charged with knowledge that there were such rates, the United States chose not to apply for them but to enter into a written contract with the plaintiff whereby other rates were fixed.
It should be noted that the tariff which the Government sought to apply in the Missouri Pacific case, supra, contained a condition identical with the one discussed here, i. e., that a request for service under the tariff must first be referred to the proper official who was to decide whether the necessary equipment was available, and the railroad reserved the right to refuse to furnish service under the tariff if it was shown that equipment was not available. The court stated that there was no such request and no such prearrangement, hence the Government should not be entitled to apply a tariff when it has not complied with a necessary condition of that tariff.
Defendant relies on Missouri Pacific Railroad Co. v. United States, 71 C. Cls. 650, 661, as setting forth the principle that "Government officers are without authority to contract for rates higher than those tendered to the public in duly published tariffs." However, in that opinion the court recognized that an exception to this general rule existed wherever the Government secured a special rate under a special contract, citing the Missouri Pacific case, 56 C. Cls. 341, as indicative of that exception.
No tariff may be interpreted so as to extend its application beyond the statutory power of the Governmental authority with which it is filed. Southern Pacific Co. v. United States, 272 U. S. 445. By statute, 49 U. S. C. (1946 Ed.), Sec. 316 (e), it is expressly provided that the Interstate Commerce Commission is without authority to prescribe rates or fares for intrastate transportation. Thus, the mere filing of Tariff 285 with the Interstate Commerce Commission, and its subsequent posting as required by the Interstate Commerce Commission Regulations, cannot serve to make the tariff applicable to intrastate movements.
Whether or not Tariff 285 might have been applied in establishing intrastate rates for charter service in Michigan during the period in question, we do not decide. We hold that in so far as the contracts which are before us in this suit are concerned, Tariff 285 is inapplicable, and the rates provided by the contracts in question are valid. Judgment will be entered for the plaintiff in the amount of $19,411.59.
It is so ordered.
Howell, Judge; Madden, Judge;, Whitaker, Judge; and Jones, Chief Judge, concur.
findings oe pact
The court makes findings of fact, based upon the evidence, the report of Commissioner Marion T. Bennett, and the briefs and argument of counsel, as follows:
1. The plaintiff, a corporation organized and existing under the laws of the State of Delaware, as successor in interest to Great Lakes Greyhound Lines, Inc., a Michigan corporation, is an authorized common carrier of passengers and related traffic by motor vehicles, moving in both interstate and intrastate commerce on routes in the various States of the United States. Insofar as this proceeding is concerned, the plaintiff maintains and conducts certain of such operations between various points and over various routes located in the State of Michigan.
2. During the years 1943 through 1946, inclusive, the plaintiff performed transportation service for the defendant by transporting certain selectees between points wholly within the State of Michigan in a charter operation.
Fixed regular route scheduled operations are conducted by motor carriers over a specified route between specified points on a specified schedule of operations, and the service thus rendered is upon a per capita basis and is open to the general public. Chartered or special coach operations are conducted over any routes and between any points, are not operated upon regular schedule, are not operated upon a per capita basis, but rather the same are operated for the exclusive use of the party or parties chartering the bus. Charges for chartered operations are based upon a per bus-mile basis, which charges in turn are based upon live miles and deadhead miles. Live miles are those miles operated by the bus when the chartered party is aboard the same. Deadhead miles are those miles operated by the bus in order to get the same from its place of storage to the point at which the chartered operation begins, and to get the bus from the point of destination of the chartered trip back to the place of storage of that bus after the charter movement has been completed.
3. Shortly after the outbreak of World War II the Office of Defense Transportation, which was created by the defendant, issued its orders prohibiting the performance of motor carrier charter or special coach service, except as to certain exempted traffic, including military and governmental, as set forth in its orders. The first order was dated May 20,1942, and became effective June 1,1942. This order was subsequently amended on July 30, 1942, becoming effective as of August 1,1942.
The pertinent provisions of the order issued on May 20, 1942, effective June 1,1942, were as follows:
Section 501.38. Definitions. As used herein:
(a) The term "Charter Service" means:
(1) The transportation by bus of a group of persons, who, pursuant to a common purpose and under a single contract, have acquired the exclusive use of a bus to travel together as a group; or
(2) The transportation by bus of passengers to whom individual tickets have been sold or with whom individual transportation arrangements have been made from or to any point or over any route not regularly served by existing facilities and established scheduled services of the person performing the transportation service.
‡ $ $ $ $
Section 501.39. Charter Service. On and after the effective date hereof, no person shall engage in charter service by bus, except in the transportation hereinafter specified when such transportation cannot readily be performed by existing facilities and established scheduled services of common carriers of passengers operating over regular routes between fixed termini, to wit: The transportation of—
(a) Military or naval personnel or persons participating in organized recreational activities at military establishments to and from Army and Navy establishments provided such transportation is furnished on written request of commanding officer at such establishment.
(b) Selectees to and from examining or induction stations on the written request of an authorized official of the Selective Service System.
‡ ‡ ‡ ‡
Under the amendment effective August 1, 1942, an additional exemption was added, which read as follows:
Section 501.39
(b) (2) The armed forces of any State to or from any military establishment provided such transportation is furnished on written request of the commanding officer of such estabishment;
The effectiveness of the above-described orders issued by the Office of Defense Transportation terminated on August 31, 1945, pursuant to further order issued by the Office of Defense Transportation, dated August 17, 1945.
Immediately upon the receipt by plaintiff's predecessor, Great Lakes Greyhound Lines, Inc., a Michigan corporation, of the directives issued by the Office of Defense Transportation, under date of May 20,1942, the general traffic manager of that company issued a directive to the company's "agents, superintendents, drivers and others concerned" to abide by the requirements of said directive.
4. The Director of the Selective Service System with headquarters located at Washington, D. C., during the period in question, had authority relative to the matter of providing transportation for selectees and inductees from the offices of local boards to the induction or examining center and return. The Director of the Selective Service System vested such authority in the various State Selective Service representatives, including the State of Michigan.
The Selective Service System established State Selective Service headquarters in Lansing, Michigan. This office of Selective Service has had jurisdiction at all times over the entire State of Michigan for its purposes.
Selective Service headquarters in Lansing, Michigan, established within that office the Office of State Procurement Officer. The duties of the state procurement officer consisted, among others, of responsibility for all financial matters pertaining to the Selective Service System of Michigan, the handling and arranging for all transportation matters within that State, and, in connection therewith, the officer is charged with the duty of accomplishing such tasks "in the best possible manner, and the best possible way, and at the least expense to the Government." In determining the best possible manner in which to transport the selectees and inductees from the local boards to the induction center and return, at the least expense to the Government, the procurement officer took into consideration not only the matter of transportation charges but also the question of minimizing the period of time the selectee or inductee would be away from home with attendant expenses to the Government, including food, lodging, etc., the transportation of the men from the bus terminals to the hotel, and from the hotel to the induction center and vice versa. In other words, all elements of cost were taken into consideration by Selective Service in determining what medium of transportation it would employ to perform a given operation. Likewise, in making such determination, the question of service as between fixed route regular scheduled operations and charter or special coach operations was taken into consideration. Having considered the various elements involved in a given transportation movement, Selective Service of Michigan decided what medium and type of transportation would be employed and, in making such determination, took into con sideration the fact that advantages of charter service over fixed scheduled operations were those of economy and efficiency.
5. At the time the plaintiff performed the service here in dispute, there was in operation a general or over-all agreement, known as Selectee Passenger Agreement No. 1, between the National Bus Traffic Association, Inc., and the Director of Selective Service, whereby the motor carriers which were parties to that agreement agreed to transport selectees at the rates prescribed therein.
The agreement, by its terms, became effective September 15, 1941. The face sheet of the agreement read as follows:
SELECTEE PASSENGER AGREEMENT NO. I covering
Interstate and Intrastate Selective Service Traffic Under the Jurisdiction of The Director of Selective Service
September 15,1941 to June 30,1942
Supplements to the agreement were executed extending the term thereof throughout the period covered by this proceeding.
Plaintiff's predecessor, Great Lakes Greyhound Lines, Inc., a Michigan corporation, was a party to Selectee Passenger Agreement No. 1.
The pertinent portions of Selectee Passenger Agreement No. 1, insofar as the issues involved in this proceeding are concerned, were as follows:
SECTION I. PURPOSE OF AGREEMENT.
This Agreement is entered into in order to establish and maintain a close cooperation between the passenger motor carriers parties hereto and the Selective Service System, and in order that the facilities of such carriers may be made readily available to and used by the Selective Service System under arrangements to provide the maximum efficiency in such operation and simplification of accounting thereto, and to promote in general the effective use of the available facilities of such carriers, to the extent of their capacities to serve the transportation requirements of the Selective Service System.
The following basis of allowances, rates, fares, and charges is hereby submitted on behalf of the passenger motor carriers parties hereto:
The tender herein of the allowances to the Government on the transportation of Selectees is made specifically in view of the close relations between the Selective Service System and the carriers parties hereto, as_ affecting the transportation of Selectee traffic as described herein, and shall not be used as a basis for claiming allowances by or in behalf of any of the branches of Government other than the Selective Service System, as the tender of the allowances provided for herein on Selectee traffic subject to this Agreement is based upon conditions peculiar to the traffic involved which are not applicable to other traffic and is made in that understanding and upon the condition that this tender shall not be construed as creating a precedent nor as a basis for claiming the same or any greater or lesser allowance upon any traffic other than that specifically included in this Agreement.
SECTION III. TRAFFIC COVERED BY THIS AGREEMENT.
This Agreement applies to the transportation of Selectees and Assignees; also the transportation of attendants authorized to accompany Selectees or Assignees (hereinafter referred to Selectees), when the cost of the transportation is paid from Selective Service System appropriations.
SECTION IV. TENDERS, PARES, RATES AND CHARGES AND CONDITIONS IN CONNECTION THEREWITH.
For traffic covered by this Agreement and subject to conditions herein stipulated the carriers parties hereto through the National Bus Traffic Association, Inc. tender to the Selective Service System the following basis for rates, fares, and charges:
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN :
(1) Ninety-five percent (95%) of the rates, fares or charges, including charter rates, published in tariffs on file with the Interstate Commerce Commission for interstate travel and the State Commissions for intrastate travel.
(2) For intrastate rates, fares, or charges between points within states where the State Commissions do not have jurisdiction over passenger motor carriers' rates, fares, or charges, ninety-five percent (95%) of the rates, fares, or charges, including charter rates, made available to commercial traffic.
Sfr
(4) The provisions of this Agreement respecting the allowances or reductions on Selectee traffic are tendered by the passenger motor carriers parties hereto upon the express condition that all Selectee traffic shall be routed preferentially over the lines of the passenger motor carriers parties hereto, provided, however, that nothing herein shall prevent the Selective Service System from using other means of transportation if such transportation is deemed by the Selective Service Official arranging the transportation to better serve the interests of the Government.
SECTION IX. DELEGATION OF AUTHORITY.
In the event any incomplete or incorrect information is furnished officers or officials in charge of transportation under the jurisdiction of the Selective Service System by authorized representatives of the National Bus Traffic Association, Inc., and transportation is requested on the strength thereof, the passenger motor carriers parties to this Agreement agree to accept insofar as they lawfully may in full settlement for transportation furnished pursuant to such request the lowest rates, fares or charges available by any passenger motor carrier or passenger motor carriers.
6. On September 11, 1941, Selective Service System headquarters at Washington, D. C., issued its "F. P. A. Field Bulletin (11-16)" applicable to Selectee Passenger Agreement No. 1.
Pertinent selected provisions of the above-described directive were as follows:
1. General Nature of Agreement : An Agreement Has Been Entered Into Between the Director of Selective Service and the National Bus Traffic Association Whereby in Return for a Tariff Discount of Approximately Fue Percent Selectee Traffic Will Be Preferentially Routed Over Passenger Motor Carriers
2. Selectee_ Traffic: Experience has shown that buses are particularly suited for the needs of Selective Service as hauls are for small groups of men over short distances. One of the most satisfactory arrangements for such travel has been found to be the use of the "charter" bus which can pick the registrants up at the office of the local board and deliver them to the induction station or physical examining point. When a return trip is involved a charter carrier is particularly appropriate as it can wait while the men are being examined. It is anticipated that the gradual extension of the "Pennsylvania Physical Examination" plan whereby registrants are returned to their local board after receiving their army physical examination will greatly increase the value and use of charter carriers.
Careful consideration of these factors coupled with a detailed study of transportation costs led to the signing of Selectee Passenger Agreement No. 1, effective September 15, 1941. This agreement will result in very substantial savings to the Selective Service System.
3. Basis for Selecting Carrier : It is not the intention of National Headquarters to disrupt smoothly working transportation set-ups in the various State Headquarters but in return for the discount of five percent that will now apply to Selectee traffic over motor carriers parties to this Agreement, it is requested that the following policy be adopted as rapidly as practicable in routing Selectee traffic.
Generally speaking, that carrier should be employed which best meets the interests of the Selective Service System and of the Government.
7. On March 15, 1941, National Headquarters of the Selective Service System, Washington, D. C., through its Division of Finance and Supply, issued its Finance and Supply Field Bulletin No. 10, applicable to the subject matter of transportation requests.
A pertinent provision of the March 15,1941, bulletin insofar as the issues involved in this proceeding are concerned, was as follows:
5 h. (6) (c) If charter bus service involves deadhead mileage a signed certificate must be submitted in duplicate with the memorandum request to the Finance Officer, United States Army, Transportation Division, Washington, D. C., stating the points between which such deadhead mileage was necessary and furnished. The certificate must show details on the deadhead mileage for each bus involved in the movement of registrants.
(7) Charter bus service should not be used when the aggregate charges, including deadhead mileage, exceed the regular fare or special party rate.
8. It is stipulated and agreed by and between the parties to this proceeding, through their respective attorneys, that the two agreements entered into between Selective Service of Michigan and Great Lakes Greyhound Lines, Inc. (Plaintiff's Exhibit No. 1) will be considered as the test cases in this proceeding and that comparable agreements were entered into between the parties applicable to the various transportation services performed by said company as set forth and described on pages 7, 8, 9 and 10 of the plaintiff's petition, and that a decision on the test cases will bind the parties on the additional agreements for services mentioned above.
The two agreements comprising Plaintiff's Exhibit No. 1 were contained in the billing made by Great Lakes Greyhound Lines, Inc., upon defendant, which billing was upon the form prescribed by the defendant and which carried Great Lakes Greyhound Lines, Inc., bill No. D 6-244.
9. Each transportation service rendered by Great Lakes Greyhound Lines, Inc. was handled with Selective Service of Michigan in the same manner Selective Service of Michigan worked out a complicated but effective procedure with a representative designated by the bus carriers for the award of business. This procedure was faithfully adhered to by the carriers to the satisfaction of Selective Service and greatly expedited the movement of selectees.
Insofar as the two test cases are concerned, on June 2,1944, Great Lakes Greyhound Lines, Inc., operated a chartered coach service for Selective Service of Michigan between Port Huron and Detroit, Michigan, and operated two buses in so doing. Its charges consisted of 120 live miles at 35 cents per bus mile for each of the two buses and 120 deadhead miles at the rate of 30 cents per bus mile, making a total charge of $120. After applying the five percent discount allowed by Selectee Passenger Agreement No. 1, the total net charge for the transportation service was $114.
The agreement entered into between Great Lakes Greyhound Lines and Selective Service of Michigan applicable to charter service performed on June 6,1944, between Bay City and Detroit, Michigan, covered the use of five buses and the charges shown thereon consist of 210 live miles at the rate of 35 cents per bus mile for each of the five buses and 210 deadhead miles at the rate of 30 cents per bus mile for four buses, making a total charge of $619.50. Upon application of the five percent discount provided for by Selectee Passenger Agreement No. 1, the total net charge was $588.52.
These rates of 35 cents per bus mile for live miles and 30 cents per bus mile for deadhead miles were 5 cents per mile less than the fares offered the general public by the plaintiff for charter service as of June 1,1942.
10. The General Accounting Office thereafter, pursuant to the provisions of Selectee Passenger Agreement No. 1 and Northeastern Charter Coach Tariff No. 285, made the following adjustments in the charges for the two test movements involved in this proceeding for intrastate charter coach service in the State of Michigan:
Dss 1,110,909 June 1, 1944, for 60 passengers from Port Huron, Mich., to Detroit, Mich., and return. Paid $114.00. Should be $102.60. Difference, $11.40.
Basis :
Allow 120 rev. miles (as billed) @ $.45 per mile times 2 buses (35 passenger buses). Deadhead mileage not applicable. Garage at Port Huron. Gross charge $108.00 less Selectee allowance (95% of fare).
‡ # # # Hi
Dss 1,111,005 June 6, 1944, for 167 passengers from Bay City, Mich., to Detroit, Mich., and return. Paid $588.52. Should be $399.00. Difference, $189.52.
Basis:
Allow 210 rev. miles (as billed) @ $.40 per mile times 5 buses (32 passenger buses). Deadhead mileage not applicable. Garage at Bay City. Gross charge $420.00 less Selectee allowance (95% of fare).
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11. Great Lakes Greyhound Lines, Inc., became a party to Northeastern Charter Coach Tariff No. 285 issued by the National Bus Traffic Association, Inc., Agent, which. Agent in turn caused said tariff and supplements thereto to be filed with the Interstate Commerce Commission. The title page of Northeastern Charter Coach Tariff No. 285 read that this particular tariff governed the rules, regulations and charges for charter service "between points on lines of issuing carriers." On the fourth revised page 1 of this tariff Great Lakes Greyhound Lines, Inc., is designated as an "issuing carriel'." Bule 4 (d) on the third revised page 3 of the tariff shows that Bay City, Port Huron, and Detroit, Michigan, are points on the lines of "issuing carriers." There is nothing contained in the tariff which restricts its applicability on Michigan intrastate traffic. This tariff was not filed with the Michigan Public Service Commission, since the Michigan statute does not require carriers to file intrastate charter tariffs with the Commission. Had it been filed it would have been accepted by the Commission. The Office of the State Procurement Officer knew of the existence of Tariff 285, and it was applied by the parties when contracting for charter trips from points in Michigan to Chicago, Illinois.
12. Buie 4 (a) of Northeastern Charter Coach Tariff No. 285 stated as follows:
Where the movement of passengers terminate at the point of origin (round trip movements) the deadhead mileage is the distance traversed by the coach, unoccupied by passengers, from the nearest point at which equipment is held out to be available as shown under 4 (d) herein, to the origin point of the passenger movement and charges will be computed as follows:
Buie 4 (d) of said tariff showed that Great Lakes Greyhound Lines, Inc., held out equipment to be available at Bay City, Port Huron, and Detroit, Michigan. The General Accounting Office disallowed deadhead mileage as noted in finding 10.
In connection with the foregoing matter it should be pointed out that Tariff 285 under Buie 2 (b), appearing on fourth revised page 2 thereof, provided as follows:
All quotations are subject to carrier being able to supply equipment. The operating head at point from which equipment will originate must be consulted prior to making quotation in order to guarantee equipment. The company reserves the right to reject any and all proposals of parties for Charter or Special Bus Service.
There is no evidence that Selective Service of Michigan was ever charged deadhead mileage in connection with motor bus equipment which actually was available at the point of origin of a selectee-inductee charter movement.
13. Under Rule 3, appearing on fourth revised page 2 of Tariff 285, it is provided that the National Bus Traffic Association, Inc., Agent National Mileage Guide No. 250 MP-ICC No. 570, and its supplements and revisions, was to be used in connection with the computation of mileage under the Northeastern Charter Coach Tariff No. 285.
Neither plaintiff nor its predecessor, Great Lakes Greyhound Lines ever used Mileage Guide No. 250 in computing either live miles or deadhead miles in connection with Michigan intrastate motor coach chartered service. On the contrary, the Michigan Official Road Guide was used for computation of such mileage and Selective Service paid for actual miles traveled.
If either National Mileage Guide No. 250, or Supplementary Mileage Guide No. 251 referred to in Rule 3 above cited, had been applied to the transportation service performed under the contract based on Selectee Passenger Agreement No. 1, Great Lakes Greyhound Lines, Inc., would have been paid upon the basis of slightly different mileage than it was in the test cases because of the fact that the mileage guides referred to computed mileage from center of town to center of town.
CONCLUSION OF LAW
Upon the foregoing findings of fact which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is entitled to recover.
It is therefore adjudged and ordered that plaintiff recover of and from the United States the sum of nineteen thousand, four hundred eleven dollars and fifty-nine cents ($19,411.59).
Hereinafter the term "plaintiff" will be used to designate both the plaintiff and Great Lakes Greyhound Lines, Inc.
Live miles are those operated by the bus when the chartered party is aboard.
Deadhead mUes are those operated to get the bus from its place of storage to the point at which the charter operation begins, and from the point of destination bach to the place of storage after the charter movement has been completed.