LaRAmore, Judge,
delivered the opinion of the court:
The plaintiff, a common carrier by railroad, sues the Government for the difference between the land-grant rate, which it billed and received, and the higher commercial rate to which it claims to be entitled. The shipments in question occurred in 1946 and consisted of dried and canned foodstuffs, drygoods, soap and drugs shipped at the request of the War Department on Army bills of lading from various points in the United States to Oakland, California, for reshipment overseas. Apparently it was not until some time following the shipments and receipt of payment computed at land-grant rates that plaintiff conceived its error in not billing at commercial rates.
The problem involves an interpretation of section 321 (a), Title III, Part II, of the Transportation Act of 1940 (54 Stat. 898, 954) , which the Court has heretofore considered under almost identical circumstances (Union Pacific Railroad Company v. United States, 124 C. Cls. 254).
The parties have stipulated that, if plaintiff's interpretation of the Transportation Act is correct, it is entitled to an additional $24,171-55, whereas should defendant prevail, plaintiff must refund $2,362.68 for certain overpayments attributable to causes not pertinent to the immediate issues.
The letter quoted in finding 4. a. clearly indicates that the Army was to assume the initial burden.of shipping and distributing the relief supplies to liberated areas under the rehabilitation program of the United States until such time as civilian agencies could take over this function.
The articles in question were procured, shipped, and distributed by the Army to the civilian populations of liberated and occupied areas in Europe and Asia, and were consumed and used by such populations. This was all accomplished pursuant to this program, paid for out of funds appropriated for that purpose by Congress, and executed by the Army under the supervision of its Civil Affairs Division. The military officials represented to Congress that the program was designed in response to military necessity. It is admitted that the supplies involved in this case were shipped solely for civilian consumption and use. The Government contends that even though the supplies were for civilian use they were shipped for military use because they were a military necessity in order to allay civilian unrest and disease, to curtail sabotage and stealing, to protect lines of communication, and assure the security of our occupying forces. We are of the opinion that the obvious primary purpose of shipping these supplies was humanitarian and/or political rather than military necessity, even though there were some incidental benefits to the military. The primary beneficiaries were alien civilians caught in the wake of the war.
The original enactment of section 321 (a) of the Transportation Act of 1940 excepted from application of full commercial rates the "transportation of military or naval property of the United States moving for military or naval and not for civil use." Accordingly, in order for land-grant rates to apply two requirements must be met, the property must be military or naval and it must be moving for a military or naval, and not a civil use. From the pattern of decided cases, in all but a few instances ascertainment of the intended use normally will determine the nature of the property.
Aside from minor variations in facts, the instant case is indistinguishable in principle from United States v. Powell, 330 U. S. 238, and the Union Pacific case, supra. The factual distinctions between this and Union Pacific relied upon by defendant to dictate an opposite legal conclusion are evidence here (1) that the Army supervised the supplies from their procurement through their distribution for consumption by foreign civilian populations; (2) that the supplies in question were earmarked "TOG" on the shipping documents (as were all supplies shipped pursuant to the Army program in occupied and liberated areas, to distinguish them from all other supplies used by the Army); (3) that the supplies were, when shipped by plaintiff, in a final form ready for their ultimate consumption; and (4) that the movements were from the point of manufacture to the point of embarkation en route to an overseas destination.
While the opinion in the Union Pacific case does not disclose that the Army attended and supervised the supplies from their manufacture through their distribution overseas, the record itself indicates that this was so.
There is no question from the record in the Union Pacific case but that the commodities were part of the same Army program in aid of liberated and occupied areas as were the articles in the instant case. The presence or lack of a symbolized shipping designation on bills of lading does not control or vary the known facts that in both cases the supplies were actually used by and for civilian populations in the war's aftermath.
It cannot be perceived how either of the remaining distinctions contended by defendant would affect the legal principle. The fact that the articles shipped here were in a finished form ready for use by the final consumer would, it would seem, argue their "civil" use more conclusively than articles such as the fertilizer ingredients in the Union Pacific case, which were at critical times a manufacturing step removed from the form in which they left the country. In an analogous situation in Northern Pacific Railway Company v. United States, 330 U. S. 248, the court discounted the effect of an intermediate manufacturing stage on the principle involved, and stated that the end use of the shipment controls. United States v. Powell, supra.
In considering the similarities of these facts with those in Union Pacific, it should he noted that not only did the shipments in both cases occur in approximately the same post-hostilities period, but the essential facts emphasized by defendant in the instant case as to the military necessity attending the aid programs were considered and rejected by the court in the Union Pacific opinion. Their elaboration in the present record does not alter their significance.
The Supreme Court in the Powell case, supra, held that a shipment of fertilizer to England under the lend-lease program was not a shipment for military use. The Court stated in that case, at page 242, that " it is not the transportation of 'all' property of the United States that is excepted but only the transportation of 'military or naval' property of the United States." The Court further stated that " the excepted property must be 'moving for military or naval and not for civil use'. Thus the scope of the clause is restricted both by the nature of the property shipped and by the use to which it will be put at the end of the transportation." In that case the peoples of England were our potential allies, and the primary purpose in shipping material was to build up the strength of England in order that she could successfully prosecute the war with Germany. This would seem to be a stronger case in favor of the Government. Yet, in that case, the Court held the shipment was not for military use.
Just as the fertilizer ingredients, in Union Pacific and Powell, supra, bestowed only an incidental benefit on the military effort, and were primarily for civilian use, so the articles in the instant case fall into the same category.
The lexicological distinction urged by defendant between "civil" and "civilian" use is without merit. This was met in the Powell case where both terms were used interchangeably and the court said: "But in common parlance, such activities [i. e., ones comparable to the program in the instant case] are civil, not military."
We are of the opinion that United States v. Powell, supra, and Union Pacific Railroad Company v. United States, supra, are controlling in this instance and that the goods shipped were for civil rather than military use.
Therefore, plaintiff is entitled to recover. Judgment will be entered in the amount of $24,171.55.
WhitakeR, Judge; and LittletoN, Judge, concur.
Sec. 321. (a) Notwithstanding any other provision of law, but subject to the provisions of sections 1 (7) and 22 of the Interstate Commerce Act, as amended, the full applicable commercial rates, fares, or charges shall be paid for transportation by any common carrier subject to such Act of any persons or property for the united States, or on its behalf, except that the foregoing provision shall not apply to the transportation of military or naval property of the United States moving for military or naval and not for civil use .
This provision was eliminated from section 321 (a) by the Act of December 12, 1915, 59 Stat. 606, 49 U. S. C. 65 (a). While the elimination was made effective as of October 1, 1946, rights accrued prior thereto were not affected.