1. Contracts for sale and delivery of coal to the United States,
construed, with the advertisements, specifications and
conduct of the parties, as providing for delivery on cars at the
mine, so that title passed then, and the railroad transportation,
on government bills of lading, was subject to land grant rates. P.
267 U. S.
397.
2. Provisions in sch contracts for service by the vendor in
transferring the coal to barges at railroad destination,
compensation therefor to be included in price of coal, and
reserving right of United States to test coal after transportation
and reject it if
Page 267 U. S. 396
not up to specifications,
held not inconsistent with
passing of title at time of delivery on cars at the mine. P.
267 U. S.
400.
3. Where the United States contracted for coal to be shipped by
rail and delivered at a vessel, use of government bills of lading,
and payment of freight by the United States at land grant rates,
were not enough to sustain a finding that the coal was the property
of the United States when hauled by the railroad. P.
267 U. S.
401.
4. When a railroad company, entitled to charge the United States
the full tariff rate, charge and receive the reduced land grant
rate with full knowledge of the facts, it is bound by its
acquiescence, and cannot recover the difference.
Id.
5. Where, under its tariff, the right of a railroad to charge
extra for switching and transferring coal at destination depends
upon road-haul revenue being equal to as much as a stated rate per
ton, land grant deductions from the latter allowed the United
States are not to be considered in determining its liability to
such extra charges. P.
267 U. S.
402.
57 Ct.Cls. 268 affirmed.
Appeal from a judgment of the Court of Claims rejecting the
railroad's claim for transportation, switching, and handling of
freight for the United States.
MR. JUSTICE BUTLER delivered the opinion of the Court.
This action was brought in the Court of Claims to recover the
amount by which tariff rate freight charges on certain coal were
reduced by government land grant deductions, and also to recover
certain charges for switching and handling. The court made findings
of fact, and gave judgment for defendant. 57 Ct.Cls. 268. One of
the lines of appellant's railroad enters Alabama from the north and
extends southerly, through Decatur, Birmingham, and Flomaton, to
Pensacola, Florida, and thence easterly to River Junction, Florida.
This is a land-aided
Page 267 U. S. 397
line. Appellant has another line extending southwesterly from
Flomaton to Mobile. At Mobile and Pensacola, it owns wharves and
hoists for transferring coal from cars to boats, and has
constructed switches from its main line to the wharves. All of
these were built without government aid. The wharves and hoists at
Mobile are operated by a coal company, and those at Pensacola by
appellant.
All the coal in question came from mines in the Birmingham
district, and was purchased by the United States for engineering
work at Mobile, Pensacola, and other places on or near the Gulf,
except 250 tons bought for the use of the United States steamship
Tonopah. It was transported on government bills of lading
and was carried in whole or in part by the use of such land-aided
railroad. The coal was furnished to the United States under a
contract with the Gulf states Coal Company of March 15, 1915, a
contract with the Imperial Coal & Coke Company of August 21,
1916, advertisements, specifications, bids, and acceptances without
formal contracts, between November 2, 1914, and September 10, 1917,
and a bid and acceptance as of April 8, 1915, for the
Tonopah.
The Court of Claims held that all shipments, except those made
under the contract of March 15, 1915, were subject to land grant
deductions. Appellant maintains that none was subject to the
reduced rates. We are of opinion that all the coal, except that
furnished the
Tonopah, was delivered to and became the
property of the United States before it was hauled by appellant,
and was entitled to the reduced rates.
The general rule is that if a consignee accepts a shipment, he
becomes liable as a matter of law for the full amount of freight
charges.
Louisville & Nashville R. Co. v. Central Iron
Co., 265 U. S. 59,
265 U. S. 70;
Pittsburgh, etc., Ry. Co. v. Fink, 250 U.
S. 577,
250 U. S. 580.
Under the Land Grant Acts, the United States was entitled to the
reduced
Page 267 U. S. 398
rates if the coal when hauled was its property. Acts of May 17,
1856, June 3, 1856, and March 3, 1857, 11 Stat. 15, 17, 200; Acts
of April 10, 1869, and March 3, 1871, 16 Stat. 45, 580; Act of
March 3, 1875, 18 Stat. 509;
Illinois Central R. Co. v. United
States, 265 U. S. 209. But
the mere use of government forms of bills of lading is not
conclusive on the question of ownership of property at the time of
transportation, and does not give the United States the right of
transportation at land grant rates.
See Transportation
Involved in Furnishing Articles by Contractor, 20 Comp.Dec. 721,
723.
The contract of March 15, 1915, was made pursuant to
advertisement and specifications. The specifications, which were
attached to and made a part of the contract, show that, in order to
permit the United States to take advantage of land grant rates, the
form of proposal contemplated either
"delivery of the whole quantity at the mine, from which shipment
will then be made on government bill of lading to Mobile,
Pascagoula, or Gulfport, as may be necessary, or delivery of about
7,000 tons at Mobile, Ala. about 5,000 tons at Pascagoula, Miss.,
and about 6,000 tons at Gulfport, Miss."
And it was specified:
"The United States will select the method of delivery which
under the proposals received proves to be most economical and
advantageous. If mine delivery is selected, the coal will be
ordered in carload lots for shipment on government bills of lading
to be furnished by the contracting officer, but the contractor will
be required to transfer it from cars to barges belonging to the
United States and will therefore include in his price his cost for
so transferring the coal at all three points of delivery. . . . If
prices based on delivery at Mobile, Pascagoula, and Gulfport prove
to be more advantageous, then these prices will be accepted and
order will be given for carload lots or less as may be required on
board United States barges or in bunkers"
at the three places
Page 267 U. S. 399
named. The contract contains the following:
"In conformity with the advertisement and specifications
hereunto attached, which form a part of this contract, the said
contractor shall furnish and have delivered on United States
barges, or in bunkers, from hoists, in carload lots at Mobile,
Alabama, when requested, eighteen thousand short tons, more or
less. . . . Coal to be shipped on government bill of lading, to be
furnished by the contracting officer, the United States to pay
railroad freight charges between Dixiana [where the mines were
located] and Mobile, and the contractor to provide for transferring
the coal from cars to United States barges and to pay all demurrage
charges that may accrue."
The United States reserved the option to call on the contractor
to tow the coal from Mobile to Pascagoula and Gulfport, and agreed
to make additional payments for that service, and also reserved the
right to inspect and test the coal after transportation and to
reject such as did not conform to specifications. The purchase
price was to be paid after delivery and final acceptance.
The language, "shall furnish and have delivered on United States
barges, . . . " if it stood alone, might be taken to indicate that
delivery was to made after transportation. But, when read, as it
must be, with the advertisement and specifications, and in the
light for what was done, it appears with reasonable certainty that
delivery at the mines was contemplated. The specifications
distinctly show that if mine delivery should be selected, the coal
would be ordered in carload lots and shipped on government bills of
lading. In harmony with that provision, the contract required
shipment in carload lots on forms of bills of lading furnished by
the contracting officer, and bound the United States to pay freight
charges from the mine to Mobile. This meant that the contractor was
not to be concerned with or responsible for the transportation by
rail. But if delivery
Page 267 U. S. 400
at Gulf ports had been selected, the contractor would have been
bound to hire the carrier and to pay the freight. The provisions of
the contract and specifications together amount to a declaration of
the parties that there was to be delivery of the whole quantity at
the mine, and the conduct of the parties was in harmony with that
purpose and inconsistent with an intention that delivery to the
United States should be made after transportation by rail was
ended. The general rule is that title passes from seller to buyer
with the delivery of the goods. All the coal except that furnished
the Tonopah was delivered by the seller to the United States at the
mines on board railroad cars of appellant, a common carrier
designated by the United States by the furnishing of government
bills of lading. It must be held that title passed at the time of
such deliveries.
See United States v. Andrews,
207 U. S. 229,
207 U. S.
240-243.
The contract contemplated service by the contractor, as well as
the sale of coal. The contractor agreed to have the coal
transferred from cars to government barges, his compensation
therefor to be included in the price, and agreed for specified
prices to tow it to points on the Gulf coast, if requested so to
do, and also undertook to furnish and deliver at various places
some 9,000,000 gallons of fresh water for steam and drinking
purposes. The services were not essential to or part of the sale,
and, as against the other facts found, the agreements to transfer
and tow the coal do not indicate that the parties intended that
delivery by the seller to the purchaser should not be made until
after transportation.
Hatch v. Oil Co., 100 U.
S. 124,
100 U. S. 137;
McElwee v. Metropolitan Lumber Co., 69 F. 302, 305;
H.
Baars & Co. v. Mitchell, 154 F. 322, 326.
The United States reserved the right to inspect and test the
coal after transportation and to reject it if found not to conform
to specifications. None of the coal was
Page 267 U. S. 401
rejected. This right was not inconsistent with transfer of title
to the United States at the time of delivery of the coal on cars at
the mine.
Delaware, Lackawanna & Western R. Co. v. United
States, 231 U. S. 363,
231 U. S.
371-372;
Illinois Central R. Co. v. United States,
supra.
By the contract of August 21, 1916, the seller expressly agreed
to deliver the coal on railroad cars at the mines at Dixiana.
Deliveries of the coal furnished without formal contracts were
covered by specifications which were the same as those forming a
part of the contract of March 15, 1915.
The conclusion that the coal furnished the
Tonopah was
to be delivered at the mine is not sustained by the facts found.
Under the invitation to bid, proposal, and acceptance, delivery was
to be made alongside the vessel at Pensacola. The coal was
transported on government bills of lading. The United States paid
the freight less land grant deductions. The use of government bills
of lading and the payment of reduced charges by the United States
are not sufficient to sustain a finding that the coal was the
property of the United States when hauled by appellant. There is
nothing to indicate that title passed before delivery at the
vessel.
We agree with the Court of Claims that acceptance of payment of
the land grant rates concludes appellant. Its conduct was
inconsistent with an intention to claim the amount of land grant
deduction, as to any of the coal. Appellant rendered bills as to
the coal furnished under the above-mentioned contracts of March 15,
1915, and August 21, 1916, upon which it stated the basic rate and
the amount to be deducted on account of land grant, and claimed the
net remaining after the deduction. There was no evidence tending to
show that, in presenting its bills at land grant rates, appellant
did not act with full knowledge of all the facts. Settlements for
transporting some of the coal were made after the commencement
of
Page 267 U. S. 402
this suit, April 26, 1916, but before the amended and
supplemental petition was filed, January 9, 1922. Appellant did not
protest against any land grant deductions. It is bound by its
acquiescence and consent, and cannot recover the amounts deducted.
Oregon-Washington R. Co. v. United States, 255 U.
S. 339,
255 U. S. 345;
New York, New Haven & Hartford R. Co. v. United
States, 251 U. S. 123,
251 U. S. 127;
New York, New Haven & Hartford R. Co. v. United
States, 258 U. S. 32;
Louisville & Nashville R. Co. v. United States,
258 U. S. 374.
The Court of Claims was right in disallowing additional pay for
switching cars to wharves or for transferring coal from cars to
boats. The tariff rates on this coal for bunkerage and purposes
other than export or coastwise traffic were $1.10 per short ton via
Flomaton to Mobile or Pensacola. Under the tariff, the cost of
transferring such coal from cars to vessels at Mobile and Pensacola
was assumed by appellant, where the road haul revenue was $1 per
ton or more; but if such revenue was less, there was an additional
charge of 10 cents per ton, plus $2 per car for switching, subject
to a maximum of $1 per ton. After land grant deduction, the balance
to be paid in money was less than a dollar per ton. But the land
grant, made many years ago in aid of the railroad enterprise, was
not a mere gift or gratuity.
See Burke v. Southern Pacific R.
Co., 234 U. S. 669,
234 U. S. 679.
The carrier's obligation to haul property of the United States at
reduced rates was a part of the consideration for which the land
grant was made. Part of appellant's compensation for hauling the
coal was paid in land, and the balance was paid in money. It cannot
be said that the total was less than a dollar per ton.
Judgment affirmed.