Full opinion text
OPINION COWEN, Chief Judge The plaintiff, a California corporation, sues to recover additional compensation in connection with the transportation for the defendant (represented by the Department of Defense) of household goods belonging to military personnel between points in the continental United States and points overseas. This is a test case, and the final disposition of the issues involved .in this case will govern the disposition of similar issues in many other cases that are pending before the court. Since June 30, 1961, the plaintiff has been authorized by the Department of Defense to transport, for compensation, the household goods of military personnel between points in the continental United States and points overseas, by two modes of service: (1) door-to-door container service; and (2) door-to-door Container-Government .(MSTS) service, otherwise known as Mode 5. Door-to-door container service involves the pre-packing and loading of each shipment of household goods into specially designed, carrier-owned containers at the origin residence of a military family, transporting the loaded containers to the port of departure, arranging for the movement of the shipment by ocean-going vessel or by air to the port of discharge, transporting the loaded containers beyond the port of discharge to the destination residence of the family, and placing the household goods into the new residence. The plaintiff assumes complete responsibility for the shipment from the point of origin to the point of destination. Door-to-door Container-Government (MSTS) service, or Mode 5, is identical with door-to-door container service except that water transportation between military ocean terminals is provided by vessels owned by, or under charter to, the defendant’s Military Sea Transportation Service (“MSTS”). Prior to March 1, 1963, the plaintiff performed the transportation service previously described pursuant to various tenders which were submitted by the plaintiff to, and accepted by, the Department of Defense. Those tenders set forth in detail the rules, regulations, rates, and charges governing shipments of military household goods. During the early 1960’s, many other companies, in addition to the plaintiff, were engaged in the business of transporting military household goods for the Department of Defense by means of door-to-door container service and Mode 5. Each company performed such service pursuant to tenders which it individually submitted to the Department of Defense for acceptance. By the fall of 1962, it had become apparent that the then-existing system of individual rate tender filings by carriers of military household goods precluded the efficient processing of the rate tenders by the Defense Traffic Management Service (“DTMS”) of the Department of Defense. The transmission of rate information from DTMS to the transportation offices at military installations was unduly delayed by the manual processing of thousands of individual tenders. Accordingly, DTMS drafted a uniform basic tender with the idea that all companies engaged in the transportation of military household goods would be required to adopt the provisions of the uniform tender instead of formulating their own tenders on an individual basis. Copies of the uniform basic tender drafted by DTMS were distributed by that agency to members of the household goods transportation industry on or about November 28, 1962. Members of the industry were informed by DTMS that all companies wishing to continue to participate in the transportation of military household goods must submit to DTMS not later than January 22, 1963, either individually or through an association to which they belonged, the uniform basic tender as a replacement for the many diverse tenders which the companies had previously submitted to DTMS. Members of the industry were further informed by DTMS that all tenders previously submitted would be canceled on February 1, 1963. Thus, the adoption by a company of the provisions of the uniform basic tender was a prerequisite to continued participation by the company in the household goods traffic of the Department of Defense. The uniform basic tender drafted by DTMS was officially designated as Military Basic Tender No. 1 (“MBT No. 1’’). It was duly filed with DTMS by the Household Goods Forwarders Association of America, Inc. (“Forwarders Association”), on behalf of the plaintiff and the other companies ■ that belonged to the Forwarders Association. . MBT No. 1 became effective on March 1, 1963; and it, as supplemented and reissued, covered all the shipments of military household goods that are involved in this case. Generally speaking, the structure of compensation under MBT No. 1 was as follows: single-factor rates, filed by the carriers on electronic key-punch EAM cards, covered the entire straight-line transportation from origin to destination; MBT No. 1 itself covered the charges to be .assessed for the performance of additional or accessorial services, and provided for allowances from the single-factor rates in certain circumstances. A single-factor rate applied from a military installation in the continental United States, or from an area within a 50-mile radius thereof, to an entire country overseas; and, in the reverse direction, such a rate applied from a military installation overseas, or within a 50-miles radius thereof, to an entire State in the United States. The “Normal Port” Diversion Claims These claims arose out of situations wherein a shipment of military household goods would originate at an over* seas point and be consigned to a certain point in the continental United States, and the' shipment, after its arrival at the port of debarkation but prior to its departure therefrom, would be diverted in accordance with instructions from the defendant to a point in the United States other than the one stated in the bill of lading. The question to be decided is the interpretation and application of the phrase “ordinarily b.e serviced,” which appears in the following portion of Item 150 of MBT No. 1: DIVERTED PRIOR TO SHIPMENT LEAVING PORT OF DEBARKATION: U.S. DESTINATION: If shipment is diverted to another point within the Continental United States that would ordinarily be serviced through the same Port of Debarkation, apply the single factor transportation rate applicable to the new destination point. If shipment is diverted to another point within the Continental United States that would not ordinarily be serviced through the same Port of Debarkation, the Port of Debarkation will be considered the destination point and the single-factor transportation rate to such point will be applicable. Further transportation to the new destination point within the Continental United States will be at the diversion rate * * *. Shipments Nos. 20 and 30 are illustrative of the “normal port” diversion claims. The facts with respect to the shipments are not in dispute and are set forth in findings 30-37. The parties are agreed that there was a diversion in each instance, but they disagree as to plaintiff’s entitlement to mileage diversion charges provided for in Item 150 of MBT No. 1. Both shipments originated in Germany and were destined for Brooklyn, New York. After arrival at the Port of New York, shipment No. 20 was diverted by order of defendant to Rochester, New York, and shipment No. 30 was similarly diverted to Areola, Illinois. On shipment No. 20, plaintiff billed the defendant for, and was paid, an amount based upon the single-factor rate between the point of origin in Germany and the Port of New York, plus a diversion fee of $5. On shipment No. 30, plaintiff billed the defendant for, and was paid, an amount based upon the single-factor rate between the point of origin in Germany and the Port of New York, plus the diversion mileage charge from the Port of New York to Areola, Illinois, and the $5 flat diversion fee. Thereafter, the General Accounting Office [hereinafter sometimes referred to as “GAO”] issued a notice of overcharge against the plaintiff with respect to the latter shipment. The amount of the overcharge, which plaintiff refunded, was computed by applying the single-factor rate from the point of origin in Germany to Areola, Illinois, and adding the flat $5 diversion fee. Plaintiff here seeks to recover diversion mileage charges under Item 150 in the amount of $55.51 due for the movement of shipment No. 20 from the Port of New York to Rochester, New York, and in the amount of $115.58 for the movement of shipment No. 30 from the Port of New York to Areola, Illinois. As shown above, Item 150 provides in substance that when a shipment is diverted prior to leaving the port of debarkation to a destination which would not “ordinarily be serviced” by that port of debarkation, the single-factor rate applies from the point of origin to the port of debarkation, and the diversion mileage rate applies from the port of debarkation to the diverted destination. On the other hand, when the diverted destination would “ordinarily be serviced” by the port of debarkation, the single-factor rate applies from the point of origin to the diverted destination. Therefore, in assessing the applicable rates for such shipments that were diverted prior to leaving the port of debarkation, a determination must be made as to what port would ordinarily or normally service the diverted destination. At the trial and in its brief, plaintiff took the position that the sole test to be employed in determining whether the port of debarkation is the normal port for the diverted destination is to ascertain whether such port is the port closest to the final destination point. Prior to the time the shipments in issue moved, plaintiff had filed with the Department of Defense a document entitled “Non-Domestic Military Household Goods Service Tender,” which, among other things, contained a list of plaintiff’s port terminal agents in the United States and in some foreign countries. Also, with respect to shipments originating in some foreign countries, the tender listed certain stateside ports. On shipments which moved prior to March 1, 1963, the GAO, in its audit of transportation bills submitted by plaintiff, referred to the list of stateside ports and then advised plaintiff that, in the absence of a definition in the service tender of the normal port of entry, the port nearest to the destination would be considered as the normal port. Plaintiff was so informed in hundreds of letters received from the GAO. Plaintiff’s position in this ease is, to a very large extent, based on GAO’s use of the “closest port” concept. We reject this interpretation of the pertinent contract provisions for several reasons. The above-quoted portion of Item 150 of MBT No. 1 is not phrased in terms of whether the port of debarkation is the port nearest to the final destination point of a diverted shipment. The evidence also shows that, while the relative proximity of possible ports of debarkation to the destination point is an important factor in the carrier’s selection of the port to which a shipment is moved, the carrier also considers other matters in attempting to achieve the lowest cost in handling the . shipment. Other considerations include the frequency of sailings and transit time to the port of debarkation, the cost of handling shipments to each port, and the practicability of consolidating a particular shipment with other shipments for land transportation. There are hundreds of ports in the United States, including some which were rarely, if ever, used by plaintiff, and possibly others which could not be used for lack of necessary facilities. In oral argument, plaintiff’s attorney conceded that the port closest to the inland destination point should not be utilized in every instance to determine the normal port, because Item 150 was intended to include ports that are regularly used to service the traffic. The defendant first contends that Item 150 of MBT No. 1 should be read in conjunction with plaintiff’s non-domestic service tender. We cannot agree with this view, because there was no definition in the service tender of the port or ports that would ordinarily be used. The tender merely listed certain stateside ports for shipments originating in various countries. In the letters mentioned above, the GAO pointed out that in the absence of a definition of the normal port of entry in the service tender, the port closest to the destination would be considered the normal port. Moreover, the unrebutted evidence and our examination of plaintiff’s service tender persuade us to find that the purpose of the tender was to describe the facilities and services which the carrier proposed to provide in order to qualify as a carrier of household goods for the Department of Defense. The tender did not purport to quote rates or to provide rules or formulae for the computation of freight charges. The carriers were not required to do so and many of them did not list stateside ports in the tenders. Defendant next argues that if the service tender does not show the normal port for a particular shipment, the question is a factual one to be determined by reference to such sources as routing guides used, by the carrier, the carrier’s method of billing, and other external facts. Although a carrier's method of billing, consistently followed before a dispute arises, may be relevant in some circumstances, we think that plaintiff’s billing practices on these shipments would be an unreliable guide for the resolution of an issue affecting so many carriers. The same is true of the routing used by a particular carrier. The determination of the port ordinarily used on a shipment-by-shipment basis as a matter of fact, as the defendant proposes, contravenes the basic purpose of MBT No. 1. Its purpose was to assure uniformity in the assessment of charges under the military basic tender, especially accessorial charges such as the diversion charges in issue, so that the only competitive variance among the carriers would be the single-factor transportation rates filed on electronic keypunch EAM cards (findings 9, 11, and 15). See also finding 17; Routed Thru-Pac, Inc. v. United States, 401 F. 2d 789, 185 Ct.Cl. 428 (1968). Thus, if the normal port should be ascertained on the basis of the varied billing practices followed by different billing clerks or the routing used by each carrier, the resulting diversion and other accessorial charges would vary from carrier to carrier and, from time to time, by the same carrier. Since there was no definition of the normal port of entry in plaintiff’s service tender or in MBT No. 1, we must look to other evidence to determine the meaning of the language that gave rise to this controversy. On September 15, 1966, the Household Goods Forwarders Association of America, Inc., acting for plaintiff and other carriers published Military Basic Tender No. 1-A, which cancelled MBT No. 1. It was a negotiated agreement and was accepted by the Department of Defense and became effective on October 1, 1966. In MBT 1-A, Item 150 was rewritten to provide that the normal port of entry was to be determined by reference to Appendix 1, a copy of which accompanies this opinion. The appendix provides as follows: Appendix 1 indicates the Ports of Embarkation or Debarkation ordinarily used to service shipments moving between CONUS and each country indicated, and are to be considered as the basis upon which the various diversion charges in this item are computed. The ordinary port utilized on a shipment destined to CONUS will be determined by selecting the port which is closest to the final destination, to which the shipment is diverted. The ordinary port utilized for shipments with an oversea destination will be determined by selecting the port closest to the origin of the shipment. [Joint Exhibit No. 4], The appendix contains a list of foreign countries arranged in ten separate groups. Opposite each group there are listed ports in the United States that are ordinarily used to service shipments moving between the continental United States and each of the countries named in that group. We resort to these provisions of MBT 1-A in reliance on the rule that, in the absence of other evidence, courts may look to subsequent agreements and acts of the parties to determine their mutual construction of the language of a previously executed agreement. National Aircraft Maintenance Corp. v. United States, 171 F.Supp. 946, 145 Ct.Cl. 505, cert. denied, 361 U.S. 895, 80 S.Ct. 198, 4 L.Ed.2d 151 (1959); Victory Inv. Corp. v. Muskogee Elec. Traction Co., 150 F.2d 889, 893 (10th Cir.) cert. denied, 326 U.S. 774, 66 S.Ct. 232, 90 L.Ed. 467 (1945); Kinard v. Mutual Benefit Health & Acc. Ass’n, 108 F.Supp. 780, 789 (W.D.Ark.1952). We hold, therefore, that Appendix 1 is a clarification, mutually adopted by the parties, of what was intended by the provisions of Item 150 of MBT No. 1 with respect to the ports “ordinarily” used during the period in issue here (January 17, 1963 through September 14, 1966). From the record as a whole, we conclude that this is not only a permissible construction of the language of Item 150 but that it is also a reasonable interpretation which conforms to the basic purpose for which MBT No. 1 was issued. “If a tariff is subject to different constructions, an interpretation which is reasonable and consistent with the purposes of the tariff should be preferred to a construction which is impractical or which leads to absurd consequences.” National Van Lines, Inc. v. United States, 355 F.2d 326, 332 (7th Cir. 1966). It follows from this construction of Item 150 of MBT No. 1 that the Port of New York was the normal port of entry for shipment No. 20, which was diverted to Rochester, New York, and that plaintiff’s charges for the shipment should be computed on the basis of the single-factor rate applicable from the point of origin to destination, plus the diversion fee of $5. On shipment No. 30, the Port of New York, the port of debarkation in this instance, was not the port normally utilized for shipments to Areola, Illinois. Since Baltimore, Maryland, was the normal port of entry for the shipment, plaintiff is entitled to the line haul charges from Germany to New York at the single-factor rate and the diversion mileage charges from New York to Areola, plus the flat $5 diversion charge. The “Port" Diversion Claims These claims involve the issue of whether, when a shipment originating at an overseas point was taken by the plaintiff (or its agent) from the pier at the port of debarkation in the United States to the plaintiff’s (or the agent’s) warehoue which serviced the port for storage-in-transit pending the receipt of delivery instructions from the defendant, the shipment should be regarded as having left the port of debarkation in relation to a subsequent diversion order from the defendant. Shipment No. 31 is illustrative of this issue. It was picked up in the Philippine Islands for transportation to Oakland, California. The bill of lading stated that storage-in-transit (“SIT”) was authorized at the carrier’s port facility for a period of not to exceed 90 days, and that the plaintiff was to “hold for disposition instructions.” Upon the arrival of the shipment at the port of debarkation, it was removed from the pier by the plaintiff’s agent and was stored in the agent’s warehouse at Oakland, which serviced the port, for a period of 20 days pending the receipt of delivery instructions from the defendant. At the end of that time, and while the shipment was still in the Oakland warehouse, the defendant directed that the shipment be diverted to the Blytheville Air Force Base in Arkansas. The question now presented for determination with respect to shipment 31 is whether the diversion to the Blytheville Air Force Base in Arkansas took place before or after the shipment left the “port of debarkation.” In connnection with this problem, the portion of Item 150 of MBT No. 1 that was applicable to a shipment diverted before it left the port of debarkation has been discussed in the preceding part of this opinion. The portion of Item 150 that was applicable to a shipment diverted after it left the port of debarkation provided in pertinent part as follows: DIVERTED AFTER SHIPMENT HAS LEFT THE PORT OF DEBARKATION: U.S. DESTINATION: If shipment is diverted to another point within the Continental United States, the point of diversion will be considered the destination point, and the single factor transportation rate to the point of diversion will apply. Further transportation will be considered a new shipment and the diversion rate of 50 cents net cwt. per 20 highway miles, or fraction thereof, will be assessed. * * * With respect to shipment 31, the plaintiff billed the defendant for charges based upon the single-factor rate from the point of origin in the Philippine Islands to the State of California, a diversion fee in the amount of $5, $35.38 for delivery into storage, $9.54 for storage and warehousing, and the diversion mileage rate from Oakland to the Blytheville Air Force Base, Arkansas. These charges, which were based by the plaintiff upon the theory that shipment 31 was diverted after it left the port of debarkation, were paid by the defendant without a prior audit. Subsequently, the General Accounting Office audited the account and then collected from the plaintiff the sum of $413.01 as an alleged overcharge. The GAO’s action was based on the conclusion that shipment 31 was divertéd before it left the port of debarkation, and, therefore, that the single-factor rate from the point of origin in the Philippine Islands to the State of Arkansas was applicable. The plaintiff seeks to recover the $413.01 in the present action. Boiled down, the question under consideration here with respect to shipment 31 is whether it left “the port of debarkation” when it was removed from the pier by the plaintiff’s agent and was taken to the agent’s warehouse which serviced the port for SIT while awaiting delivery instructions from the defendant. In this connection, the term “port of debarkation” is not defined in MBT No. 1. However, the word “port” is defined in the dictionary as follows: * * * a place where ships may ride secure from storms: HARBOR, HAVEN * * *[;] a harbor town or city where ships may take on or discharge cargo: the starting point or the destination of a voyage: a place to or from which goods may be shipped * * *[;] the entire geographical horbor area of a place * * * [WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (Unabridged, 1968).] It will be noted that none of the dictionary definitions of the word “port” justifies the narrow concept of the term “port of debarkation” for which the plaintiff contends in connection with the issue now under consideration — i. e., that it means only the pier onto which a shipment is unloaded from a ship. As previously indicated, the bill of lading — which constituted the contract between the plaintiff and the defendant with respect to the transportation of shipment 31 — stated that “SIT not to exceed 90 days is auth at carrier’s port facility” (emphasis supplied). Thus, the warehouse of the plaintiff (or its agent) which serviced the port of debarkation was characterized in the contract itself as a “port facility,” i. e., as part of the port for the purpose of the contract between the parties. This was consistent with the dictionary definition of “port” as “a harbor town or city where ships may take on or discharge cargo,” or as “the entire geographical harbor area of a place.” Consequently, it appears that a warehouse operated by the plaintiff (or its agent) for the servicing of a port of debarkation was a port facility and part of the port for the purposes of Item 150 of MBT No. 1; and, accordingly, that shipment 31 did not leave the port of debarkation when it was taken from the pier to the warehouse. Plaintiff is not entitled to any additional compensation on the ground that shipment No. 31 was diverted after it left the port of debarkation, and the petition should be dismissed to the extent that it claims any compensation on that ground. The Claims Based on “Diversions” to and from SIT The issues presented by these claims are whether there was a diversion, within the meaning of Item 150 of MBT No. 1, when the plaintiff was instructed by the defendant to place a shipment in storage at the destination point while awaiting delivery instructions, instead of making delivery to the destination address shown on the bill of lading, and whether there was another diversion when the defendant subsequently directed that the shipment be delivered to the owner's new residence. In connection with this problem, it should be mentioned that when a member of the Armed Forces is reassigned from a point within the United States to a point overseas, or vice versa, there is often some uncertainty at the time when his household goods are tendered to the carrier as to the exact location of his new residence and the exact time when he will arrive at his new station. This is well understood by members of the household goods transportation industry. In such a situation, it is customary to consign the household goods to the owner at the military installation where he is expected to serve, to authorize storage-in-transit, and to instruct the carrier that, upon the arrival of the shipment at the railhead or port servicing the destination military post, the carrier shall notify the post transportation officer before delivering the goods or placing them in storage. If the uncertainty concerning the property owner’s new residence and time of arrival has not been resolved when the shipment reaches the railhead or port servicing the destination military post, the post transportation officer directs the carrier to store the shipment while awaiting delivery instructions from the transportation officer or the owner of the household goods. This procedure is known as placing the shipment in “storage-in-transit” or in “SIT.” The warehouse for SIT is selected by the carrier, although it must be a facility which has previously been inspected and approved by the military officials. The claims based upon alleged diversions to and from SIT are illustrated by shipment No. 4, which originated at a point in Rhode Island and was consigned to “Transportation Officer, Bldg. #4 Jager,” the destination being given on the bill of lading as “Asehaffenburg, Germany.” The bill of lading authorized storage-in-transit for not to exceed 90 days at destination and instructed the plaintiff to notify the transportation officer at Asehaffenburg upon the arrival of the goods and prior to placing them in storage. Upon the arrival of the shipment at the railhead servicing Asehaffenburg, the plaintiff’s agent notified the post transportation officer and was directed to place the shipment in storage-in-transit pending the receipt of delivery instructions. The SIT was accomplished by the plaintiff’s agent in the agent’s warehouse located at Darmstadt, Germany. Subsequently, the plaintiff’s agent was directed to deliver the shipment to the property owner’s new residence in Asehaffenburg, and this was done. On shipment 4, the plaintiff billed the defendant for — and was paid without prior audit — the sum of $242.77, which included the line-haul transportation charge from the origin point in Rhode Island to Germany and, inter alia, a charge of $10.43 for delivery into storage. In the present action, the plaintiff is endeavoring to recover under Item 150 of MBT No. 1: (1) a $5 diversion charge and a diversion mileage charge in connection with the alleged diversion of the shipment from the bill-of-lading consignment address in Asehaffenburg to the SIT warehouse in Darmstadt; and (2) a $5 diversion charge and a diversion mileage charge in connection with the alleged diversion of the shipment from the SIT warehouse to the property owner’s new residence. The term “diversion” was defined in Item 150 of MBT No. 1 as meaning— - * * any change from original delivery instructions, including consignment or reconsignment of a destination point afrer commencement of transportation service, when authorized by appropriate government transportation officer * * *. Item 150 further provided that “Upon receipt of diversion instructions and such is accomplished, a $5.00 Diversion Charge will apply in addition to the following provisions, rates and charges”; and this was followed by, inter alia, the portions of Item 150 relating to shipments diverted after arriving at, but prior to leaving, the port of debarkation, and shipments diverted after leaving the port of debarkation, as described in the two immediately preceding parts of this opinion. Plaintiff’s position is that the transportation contract is the bill of lading, and the consignment address and destination marked on the bill of lading constitute the “original delivery instructions” mentioned in Item 150 of MBT No. 1. The language of that Item states that changes from “original delivery instructions” include “consignment or reconsignment of a destination point * * *.” Therefore, argues plaintiff, when shipment No. 4, destined for Aschaffenburg and consigned to the transportation officer at Building No. 4 Jager, was ordered into SIT at Darmstadt, the shipment was reconsigned, the delivery instructions changed, and a diversion occurred. When the goods were later ordered out of SIT, to be delivered at the owner’s residence in Asehaffenburg, plaintiff maintains that the goods were again reconsigned, once against changing the original delivery instructions and causing another diversion. However, these contentions ignore both the factual context of the contract provisions and the bill of lading’s authorization for storage-in-transit. The factual setting was always quite clear to both parties, i. e., that plaintiff contracted to make one pick-up, one delivery, and to furnish all the transportation in between. The parties recognized that delivery to a residence could not always be made immediately, because a property owner might not be located in his new residence when his goods arrived at the railhead or port servicing the destination. For this reason, the delivery instructions quite commonly did not specify immediate delivery to a residence, but instead authorized storage-in-transit in the event such storage was necessary. This was precisely the case in shipment No. 4. When the goods arrived in Aschaffenburg, they were ordered by defendant to be placed in SIT, and plaintiff chose his warehouse in Darmstadt as the storage area. Contrary to plaintiff’s argument, however, the arrival of the goods at the railhead servicing Aschaffenburg was not a delivery. It was not until the goods were placed in SIT in Darmstadt that the plaintiff had made a “delivery” in accordance with and as authorized by the original delivery instructions on the bill of lading. See Routed Thru-Pac, Inc. v. United States, 401 F. 2d 789, 793, 185 Ct.Cl. 428, 435 (1968). The delivery to SIT was not a diversion, as plaintiff has urged, because it involved no change from the original delivery instructions. To the contrary, it was a fulfillment of a possibility contemplated by both parties and authorized by the bill of lading, which is the transportation contract. Plaintiff’s argument that orders to place the goods in SIT constituted a consignment or a reconsignment also lacks merit, because the destination point was originally, and never ceased to be, Aschaffenburg. The goods were never ordered to be delivered to Darmstadt. Rather, they were ordered to be placed in storage, and the plaintiff chose his warehouse in Darmstadt as the most convenient place. This, quite clearly, was not a consignment or a reconsignment within the meaning of Item 150. Similarly, when the goods were later transferred from SIT in Darmstadt to the owner’s residence in Aschaffenburg, plaintiff performed not a diversion of the original delivery, but rather a second delivery. The second delivery was obviously contemplated by the original delivery instructions and was in fact ordered by additional delivery instructions, i. e., after the first delivery to SIT. The defendant concedes that the second delivery is compensable as an additional service under Item 145 of MBT No. 1. Accordingly, the petition should be dismissed as to the plaintiff's claims for a $5 diversion charge and a diversion mileage charge in connection with the placement of shipment No. 4 in the warehouse of the plaintiff’s agent for SIT, and for a $5 diversion charge and a diversion mileage charge in connection with the delivery of the shipment from the SIT warehouse to the property owner’s new residence. Plaintiff is entitled to be paid under Item 145 of MBT No. 1 for the movement of the shipment from the SIT warehouse at the destination point to the property owner’s new residence. SIT Extensions Another issue presented in this case is whether there was a diverson of a shipment, within the meaning of Item 150 of MBT No. 1, when the shipment was placed in storage-in-transit at the destination point while awaiting delivery instructions and the SIT period was subsequently extended beyond the period specified in the bill of lading. Shipment No. 18 illustrates the issue outlined in the preceding paragraph. This shipment originated in Germany' and was consigned to the property owner at Ft. Riley, Kansas. The bill of lading authorized SIT for not to exceed 90 days. Upon the arrival of the shipment, the transportation officer at Ft. Riley ordered that the shipment be placed in storage-in-transit, and this was accomplished by the plaintiff’s agent in the agent’s warehouse at Junction City, Kansas. After the shipment had been stored for 63 days in Junction City, the transportation officer at Ft. Riley ordered that the shipment be diverted to Ft. Sheridan, Illinois. Subsequently, the post transportation officer at Ft. Sheridan instructed the plaintiff’s agent in that vicinity to place the shipment in SIT while awaiting delivery instructions; and the plaintiff’s agent placed the shipment in the agent’s warehouse at Des Plaines, Illinois. While the shipment was in the Des Plaines warehouse, the owner of the goods requested the transportation officer at Ft. Sheridan to extend the SIT time authorized for this shipment in the bill of lading by 90 days, due to the unavailability of quarters. This was done by the post transportation officer, and the plaintiff’s agent was furnished a copy of the authorization. The shipment remained in SIT at Des Plaines for a total of 117 days. The plaintiff was paid the applicable storage charges -under Item 140 of MBT No. 1, and there is no dispute in the present litigation with respect to such charges. In the present case, the plaintiff claims, inter alia, that the action of the post transportation officer at Ft. Sheridan in extending the SIT period authorized in the bill of lading constituted a diversion of the shipment, and, accordingly, that the plaintiff is entitled to collect, in connection with such diversion, the $5 diverson charge authorized by Item 150. In order to determine whether the extension of the SIT period was a diversion, we must look both to the provisions of Item 150 of MBT No. 1 and the Defense Supply Agency Regulations (finding 29) which were in effect at the time and define diversion or reconsignment. Since there was no change in the original delivery instructions, the extension is not compensable as a diversion under Item 150 alone. However, plaintiff contends that it is entitled to diversion charges pursuant to the provisions of Section XXA of the regulations, which define diversion to include, among other actions, the following: 5. Any other instructions given to the carrier that are necessary to effect delivery and require a change in billing and /or an additional movement of the vehicle. We reject plaintiff’s contention and hold that there was no diversion within the meaning of the regulations with respect to the additional storage time for shipment No. 18. The instructions were not necessary to effect delivery of the shipment and there was no additional movement of the vehicle-'used by plaintiff for transporting the shipment. The petition should, therefore, be dismissed as to plaintiff’s claim for a $5 diversion charge in connection with the extension of the SIT period authorized in the bill of lading covering shipment No. 18. Movement of Shipments into and out of SIT Another issue presented in this case is whether, when a shipment was placed in storage-in-transit at the destination point while awaiting delivery, instructions and was thereafter delivered to the new residence of the property owner pursuant to delivery instructions, the carrier is entitled under Item 145 of MBT No. 1 to compensation both for performing the movement into SIT and for performing the movement out of SIT. This issue is illustrated by shipment No. 27, which originated in Germany and was consigned to the property owner at Lawton, Oklahoma. The bill of lading authorized storage-in-transit at destination for not to exceed 90 days. When the shipment arrived at Lawton, the transportation officer at Fort Sill directed the plaintiff’s agent to place the shipment in SIT, and this was accomplished in the agent's warehouse at Law-ton. The transportation officer subsequently ordered the shipment removed from SIT and delivered to the property owner at a specified street address in Lawton. On shipment No. 27, the plaintiff billed the defendant, and was paid, the sum of $24.86 under Item 145 of MBT No. 1 for the movement into SIT, and also for $24.86 under Item 145 for the movement out of SIT. The General Accounting Office issued a notice of overcharge which requested the refund of the compensation that had been paid for the movement into SIT. The plaintiff complied with that request and refunded $24.86 to the defendant. (The charge of $24.86 for the movement of the shipment out of SIT was not involved in the notice of overcharge, and the defendant concedes that it was properly collected.) In the present action, the plaintiff seeks, inter alia, to collect a charge under Item 145 for the movement of shipment 27 into SIT. Item 145 of MBT No. 1 prescribed “Pick-Up or Delivery Transportation Rates To Apply on Storage-in-Transit Shipments.” It was in Section II of MBT No. 1, which was entitled “Additional Services,” and stated that the rates and charges prescribed in the section for “additional services” were “in addition to” the single-factor transportation rates filed by carriers. This same issue has previously been before the Court of Claims in the case of Routed Thru-Pac, Inc. v. United States, 401 F.2d 789, 185 Ct.Cl. 428 (1968). In that case, the court said 401 F.2d at p. 793, (185 Ct.Cl. at p. 435) that “the single-factor rate necessarily incudes one ‘pick-up’ and one ‘delivery’ and all the land and water transportation in between;” and that “[i]tem 145 provides additional compensation only for ‘additional’ or ‘accessorial’ services rendered above and beyon,d what is required by the single-factor rate.” The court subsequently said 401 F.2d at p. 793,185 Ct.Cl. at pp. 435-436): * * * Where storage-in-transit occurs at destination, there is an additional “delivery”, but not an additional pick-up, i. e., the goods are delivered once to the warehouse and then delivered after storage to the destination residence. The first of the deliveries is compensated by the single-factor rate, since the single-factor rate necessarily includes one “delivery”. The second delivery is paid pursuant to Item 145 as additional compensation. * *x- *x- The court’s decision in Routed ThruPac clearly requires the rejection of the plaintiff’s claim for compensation in connection with the movement of shipment 27 into SIT. Therefore, the petition should be dismissed as to the plaintiff’s claim under Item 145 of MBT No. 1 in connection with the movement of shipment No. 27 into SIT. The “Diversion Without SIT” Claims Another issue presented in this case is whether, when a shipment arrived at the destination point and the carrier was directed to deliver the shipment, without SIT, to the property owner at a residence address not shown on the bill of lading, there was a diversion of the shipment, within the meaning of Item 150 of MBT No. 1. This issue is illustrated by shipment No. 33, which originated in Guam and .was consigned to the property owner at “Beeville, Texas (NAAS) [Naval Air Auxiliary Station].” Storage-in-transit for not to exceed 90 days was authorized. The plaintiff was instructed to notify the transportation officer at the Naval Air Station in Corpus Christi, Texas, upon the arrival of the shipment. When shipment 33 arrived at Beeville, the plaintiff’s agent notified the transportation officer at the Naval Air Station in Corpus Christi, and was instructed to deliver the shipment to the property owner at 173 Ann Burke Apartments in Beeville. The plaintiff was paid on October 25, 1963 for the transportation of shipment 33 on the basis of the single-factor rate from the origin point in Guam to the State of Texas. In the first amendment to the petition, which was filed on February 16, 1967, the plaintiff seeks to collect under Item 150 of MBT No. 1 a $5 diversion charge and a diversion mileage charge in the amount of $6.56, on the ground that there allegedly was a diversion of the shipment from the Naval Air Auxiliary Station in Beeville to 173 Ann Burke Apartments in Beeville. Item 150, like Item 145, is in Section II of MBT No. 1. As stated in the immediately preceding part of this opinion, Section II was entitled “Additional Services” and stated that the rates and charges prescribed in the section for “additional services” were “in addition to” the single-factor rates filed by carriers. Item 150 prescribed rates and charges for additional services which carriers were required to perform as a result of diversions ordered by transportation officers; and the term “diversion” was defined as meaning “any change from original delivery instructions.” Therefore, in connection with the claim now under consideration, the problem is whether, as a result of a “change from original delivery instructions” ordered by a transportation officer, the plaintiff was required to perform an additional service which it was not obligated to perform as part of the consideration for the line-haul transportation charge previously collected from the defendant. At the time when shipment 33 was tendered to and accepted by the plaintiff in Guam, it was known that the property owner was being transferred to the Naval Air Auxiliary Station in Bee-ville, Texas, but there was uncertainty concerning the exact location of the property owner’s destination residence, where the plaintiff would ultimately make delivery and unpack the household goods. Consequently, the plaintiff was instructed to notify the transportation officer at the Naval Air Station in Corpus Christi, Texas, upon the arrival of the shipment at Beeville, the clear implication being that the transportation officer would either give the plaintiff specific delivery instructions at that time or else direct the plaintiff to place the shipment in SIT pending the issuance and receipt of delivery instructions. Therefore, when the plaintiff’s agent, upon notifying the transportation officer relative to the arrival of the shipment at Beeville and receiving delivery instructions, delivered the shipment to the property owner’s residence at 173 Ann Burke Apartments in Beeville, the plaintiff’s agent was merely performing a service which the plaintiff had contracted to perform on the basis of its single-factor transportation rate, and was not performing an “additional” service. The single-factor transportation rate covered one delivery, and this was accomplished when shipment 33 was delivered to the property owner’s new residence in Beeville, without SIT. Furthermore, there was not involved in connection with shipment 33 “any change from original delivery instructions.” As previously indicated, the bill of lading itself did not give instructions concerning the delivery of the shipment to the serviceman’s destination residence, since the exact location of the destination residence was unknown at the time when the bill of lading was issued. Instead, the bill of lading notified the plaintiff that it would receive specific delivery instructions from the transportation officer at the Naval Air Station in Corpus Christi when the latter was informed regarding the arrival of the shipment at Beeville. Thus, the instructions from the transportation officer to the effect that the shipment was to be delivered to the property owner at 173 Ann Burke Apartments in Beeville were ■the “original delivery instructions” contemplated by the parties. The conclusion that there was no diversion of shipment 33, within the meaning of Item 150 of MBT No. 1, when the shipment arrived at the destination point and the carrier was directed to deliver the shipment, without SIT, to the property owner at his new residence address, makes it unnecessary to consider the question of whether the 3-year limitation period prescribed in 49 U.S.C. § 1006a or the 6-year limitation period prescribed in 28 U.S.C. § 2501 is applicable to this claim. The petition should be dismissed as to the plaintiff’s claim under Item 150 of MBT No. 1 for a $5 diversion charge and a $6.56 diversion mileage charge in connection with the delivery of shipment No. 33 to the property owner’s new residence, without SIT. Shipments Packed at Non-Temporary Storage Origins Another issue presented in this case is whether, when a shipment was in non-temporary storage at the origin point and the evidence indicates that the carrier packed some of the household goods prior to transporting them, the carrier is entitled to be compensated for the transportation on the basis of the full single-factor rate from origin to destination without showing either that no preliminary packing of such household goods was performed prior to storage or, in the alternative that the repacking of such household goods was directed by a transportation officer. This issue is illustrated by shipment No. 1, which was picked up by the plaintiff at a warehouse in Columbus, Georgia, where it was in non-temporary storage. The shipment was to be transported by the plaintiff to Bamberg, Germany. The documentary evidence in the record indicates that 2 barrels and 13 cartons in the shipment were packed by the plaintiff prior to the transportation of the shipment from Georgia to Germany. The plaintiff billed the defendant for, and was paid, $452.16 to cover the line-haul move from the origin point in Georgia to Germany, based on the single-factor rate of $31.40 per hundredweight. The defendant subsequently issued a notice of overcharge demanding a refund of $21.60 from the plaintiff, on the ground that the single-factor rate should be reduced by $1.50 per hundredweight in accordance with Item 25A of MBT No. 1. The plaintiff refunded the $21.60 under protest, and seeks to recover that amount in the present action. As previously indicated in this opinion, one of the services which the plaintiff was generally obligated to perform under its single-factor transportation rate was the packing of the serviceman’s household goods at his origin residence. In this connection, however, Item 25A of MBT No. 1 provided as follows: Any shipment originated at a storage warehouse, and for which preliminary packing was performed prior to storage, will not be repacked unless directed by the transportation officer to insure safe transportation to destination. When packaging is not required, the applicable single factor rate named will be reduced by $1.50 per net ewt. The problem here is to determine the proper rate for the line-haul transportation of shipment 1 from the origin point in Georgia to Germany. The plaintiff’s claim is based on the contention that the proper rate is the full single-factor rate of $31.40 per hundredweight, without any reduction. The defendant, on the other hand, contends that the proper rate is the single-factor rate less $1.50 per hundredweight under Item 25A of MBT No. 1. With respect to this claim — as with respect to all other claims asserted in the petition — the plaintiff has the burden of proof. Since the evidence showed that shipment 1 originated at a storage warehouse, the plaintiff had the burden of establishing that Item 25A of MBT No. 1 was inapplicable; and in order to do this, the plaintiff was required to prove either that no preliminary packing prior to storage was performed and the household goods which the plaintiff packed in 2 barrels and 13 cartons, or, in the alternative, that the plaintiff was directed by a transportation officer to repack such goods prior to transporting them to Germany. No evidence on either of these points was presented by the plaintiff. The documentary evidence which merely showed that the plaintiff packed 2 barrels and 13 cartons of shipment 1 prior to transporting the shipment from Georgia to Germany was not sufficient to establish the inapplicability of Item 25A of MBT No. 1. Therefore, the plaintiff has not sustained its burden of proof; and its claim for the recovery of $21.60 in connection with shipment 1 must be denied. The petition should be dismissed as to the plaintiff’s claim based on the full single-factor transportation rate, without reduction, in connection with the movement of shipment No. 1 from the origin point in Georgia to the destination point in Germany. Loss of ■ Containers Another issue presented in the present case is whether a carrier is entitied to compensation on a quantum vale-bat basis for the loss of its containers when a shipment was being transported in carrier-owned containers and the defendant ordered that such shipment be delivered in the carrier-owned containers for non-temporary storage at a warehouse operated by a company other than the carrier or its agent, or the defendant ordered that the shipment be delivered to another carrier for further transportation in the first carrier’s containers, with the result that the first carrier lost possession of its containers and never recovered them. This issue is illustrated by shipment No. 7, which originated in Okinawa and was consigned to the transportation officer at the Oakland Army Terminal in California. At the origin residence of the property owner in Okinawa, the household goods were packed in three containers belonging to the plaintiff: one 220-cubic-foot container, one 153-cubic-foot container, and one 21-c.ubic-foot container. The bill of lading directed that the shipment be held “for disposition.” Upon the arrival of the shipment at the port of debarkation the defendant directed that it be placed in storage-in-transit, and this was accomplished at the warehouse of the plaintiff’s agent in Oakland, California. After the shipment had been in SIT for 31 days, the defendant instructed that the shipment, which was still in the plaintiff’s containers, be delivered to a warehouse in San Francisco for non-temporary storage, the San Francisco warehouse being operated by a company with which the plaintiff had no agency or other relationship. When this occurred, the plaintiff lost possession of its containers. The plaintiff did not thereafter recover the containers. The plaintiff billed the defendant for the alleged value of the containers used in connection with shipment 7, i. e., $25 for the small container and $50 each for the two larger containers, or a total of $125. This charge was not paid by the defendant; and the plaintiff seeks in the present action to recover the sum of $125 for the loss of its containers. When household goods are tendered to a carrier for transportation in accordance with the door-to-door container service under MBT No. 1, the household goods are packed by the carrier at the origin residence of the property owner and are loaded into specially designed containers belonging to the carrier. At the destination residence, the household goods are unpacked from the containers, and the containers, together with the necessary packing materials, are retained by the carrier. At the time involved in the present litigation, there was no provision in the defendant’s regulations which permitted a carrier to remove the household goods from the containers prior to delivery to the destination residence, unless such removal was expressly authorized by a military transportation officer. There was an implied contractual obligation on the part of the defendant to permit a carrier to retain its containers upon the completion of the transportation service which the carrier was obliged to perform under the contract between the parties. The defendant failed to discharge its implied contractual obligation in this respect when the defendant directed the carrier to deliver a shipment, while still in the carrier’s containers, for non-temporary storage in a warehouse operated by a company with which the carrier had no agency or other relationship. Non-temporary storage is permanent storage, and is to be contrasted with storage-in-transit, which is temporary storage performed during the course of the transportation of a shipment. Non-temporary storage was not performed under the terms of MBT No. 1, but under a separate contract between the defendant and the operator of the warehouse. The defense interposed by the defendant in connection with the claim for the loss of the containers used for shipment 7, and other similar claims, is that the plaintiff at the trial did not introduce sufficient evidence regarding the value of the lost containers. The evidence in the record shows that the acquisition cost of the type of container used by the plaintiff ranged between $30 and $40. With respect to the containers that were actually used in connection with shipment 7 and the other shipments that raise the issue now under consideration, there is no evidence in the record concerning the age of the containers, the extent to which they had been used prior to the particular shipments that are involved in the present litigation, or their condition at the time when the plaintiff lost possession of them due to the directives issued by the defendant. On the other hand, it is certainly proper to infer from the evidence in the record that the plaintiff’s containers were capable of being used for the transportation of household goods and, accordingly, that they had some value at the time of their loss. This is sufficient for present purposes, since the initial trial of the case was held on the issue of liability only, with the amount of the plaintiff’s recovery (if any) being reserved for subsequent proceedings under Rule 131(c). Judgment on the question of liability should be entered for the plaintiff on its claim for the loss of the. containers used in connection with shipment No. 7. Additional Transportation Performed on Mode 5 Shipments Another issue presented in this case is whether, when an MSTS vessel carried a door-to-door Container-Government, or Mode 5, shipment before the fall of 1965 to a port of debarkation other than the MSTS port that was nearest to the destination point of the shipment, the carrier is entitled to compensation on a quantum meruit basis for the additional land transportation which it was required to perform as a result of the defendant’s failure to use the MSTS port nearest to the destination point. This issue is illustrated by shipment No. 8, a Mode 5 shipment which originated in the Canal Zone and was consigned to the property owner in Benton, Pennsylvania. The shipment moved to the continental United States from the Canal Zone aboard an MSTS vessel which was bound for the Port of New York. The shipment was picked up by the plaintiff at a pier in Newark and was transported to Benton, a distance of 176 miles. Philadelphia is an MSTS port of call, and it is located 131 miles from Benton. The plaintiff billed the defendant, and was paid, $94.50 for the transportation of shipment 8, based on the plaintiff’s single-factor rate of $18.90 per hundredweight that was applicable to Mode 5 shipments moving from the Canal Zone to points in Pennsylvania. This payment is not in dispute. In the present action, the plaintiff seeks to recover $6.75 for the additional land distance of 45 miles over which the plaintiff was required to transport shipment 8 because the defendant did not use Philadelphia as the port of debarkation. This amount is computed by utilizing as the measure of compensation the mileage rate prescribed in Item 150 of MBT No. 1. As of the time when shipment 8 moved from the Canal Zone to Benton, the evidence in the record does not reveal any contractual provision or any understanding pursuant to which the defendant, in connection with a Mode 5 shipment, agreed to utilize as the port of debarkation the MSTS port nearest to the destination point. The evidence in the record indicates that the plaintiff held itself out to the defendant as ready, willing, and able to accept Mode 5 shipments moving from the Canal Zone to points in the continental United States through the MSTS ports of New York, Norfolk, and New Orleans. As shipment 8 moved through the Port of New York, the plaintiff did no more than what it had contracted to do when it transported the shipment from the port of debarkation to the destination point given in the bill of lading. Hence, there is no proper basis for an additional recovery on the the theory of quantum meruit. The petition should be dismissed as to the plaintiff’s claim based on a charge for additional land transportation in connection with shipment No. 8. Additional Transportation Performed as Result of Maritime Strike Another issue presented in this case is whether a carrier is entitled to extra compensation on a quantum meruit basis when the defendant, because of the existence of a maritime strike at the port of embarkation closest to the origin of the shipment, requested the carrier to transport the shipment to a more distant port for loading aboard a vessel there. This issue is illustrated by shipment No. 34, which originated in Quitman, Georgia, and was consigned to the property owner in Bamberg, Germany. The nearest port of embarkation for shipments originating in Quitman, Georgia, and bound for Germany is Jacksonville, Florida, which is 136 miles from Quit-man. The Port of Jacksonville was strikebound at the time when shipment 34 was tendered to and accepted by the plaintiff. The plaintiff at first held the shipment at the origin point while awaiting the resolution of the maritime strike at Jacksonville. However, the transportation officer at the origin point requested the plaintiff to expedite the shipment and to transport it to the Army Terminal at New Orleans, Louisiana, so that the Army Terminal could arrange for MSTS to perform the ocean transportation. New Orleans is 481 miles from Quitman, Georgia. The plaintiff complied with the transportation officer’s request and sent shipment 34 to the plaintiff’s agent in New Orleans, thereby providing land transportation over a distance that was 345 miles greater than the distance between the origin point and the Port of Jacksonville. At New Orleans, shipment 34 was ultimately loaded aboard a commercial vessel, rather than an MSTS vessel, for the ocean transportation to Germany. The plaintiff was paid $224.64 under the plaintiff’s single-factor rate for the line-haul transportation from Quitman, Georgia, to Germany. In the present action, the plaintiff seeks, inter alia, additional compensation on a quantum meruit basis in the amount of $82 for the 345 additional miles of land transportation necessitated by the defendant’s request that New Orleans