Full opinion text
OPINION DURFEE, Senior Judge. These cases, which were tried jointly, arose out of the transportation by plaintiff, under Government bills of lading issued by the Department of Defense, of household goods belonging to military personnel. The shipments moved between points in the United States and points overseas. Beginning in 1965, several hundred cases, involving many thousands of claims based on separate shipments, have been filed in this court by carriers of military household goods. Some of the litigating carriers are members of the Household Goods Forwarders Association of America, Inc. and others are members of the Household Goods Carriers’ Bureau. After extensive negotiations, representatives of the carriers and representatives of the Government selected one case as presenting all of the issues that are involved in all of the cases filed by members of the Household Goods Forwarders Association of America, Inc.; and they selected two eases as together presenting all of the issues that are involved in all of the cases filed by members of the Household Goods Carriers’ Bureau. It was agreed by the parties, with the approval of the commissioner, that only the test cases thus selected would be tried; that the court’s decisions on the issues of liability in such cases would constitute the bases for the disposition of all the pending cases. The test case selected for members of the Household Goods Forwarders Association of America Inc. was Trans Ocean Van Service v. United States, No. 137-66 (“TOVS”). That case was decided by this court on May 15, 1970 (426 F.2d 329, 192 Ct.Cl. 75). The two cases now under consideration, Nos. 259-65 and 355-65, both filed by Global Van Lines Inc. (“plaintiff”), were the test cases selected for members of the Household Goods Carriers’ Bureau (“the Bureau”). It was agreed by the parties, with the approval of the commissioner, that a joint trial would be held in cases Nos. 259-65 and 355-65, and that the trial would be limited to the issues bearing on plaintiff’s right to recover on its claims, or bearing on defendant’s right to recover on its counterclaims, with the amount of any such recovery being reserved for determination in subsequent proceedings under Rule 131(c). Plaintiff is a Texas Corporation that maintains its principal place of business in Anaheim, California. At all times material to this litigation, plaintiff held itself out to the Department of Defense as ready, willing and able to transport the household goods of military personnel for compensation between points in the United States and points overseas. The principal types of service offered by plaintiff were (1) door-to-door-container service, (2) door-to-door-eontainer-Gov-ernment (MSTS) service, otherwise known as Mode 5, and (3) mo tor-van-sea-van service. * Door-to-door container service involves the pre-packing and loading of each shipment into specially designed carrier-owned containers at the origin residence, transporting the loaded containers to the port of debarkation, arranging for the movement overseas by ship or by air, transporting the loaded containers from the point of debarkation to the destination residence, and unloading the household goods from the containers and placing them into the owner’s new residence. Door - to - door - container - Government (MSTS) service, or Mode 5, is identical with the door-to-door-container service except that ocean transportation between military ocean terminals is provided by ships owned by, or under charter to, defendant’s Military Sea Transportation Service (“MSTS”). In the motor-van-sea-van service, un-crated household goods are placed into a moving van at the origin residence and are transported in the van to the port of embarkation, where the household goods are placed in sea-van containers, and loaded on a ship. At the port of debarkation, the household goods are removed from the sea-van containers, and the un-crated shipment is then placed in a moving van and transported in the van to the owner’s new residence at the destination point. The shipments transported in the door-to-door container service and in Mode 5 move under indivisible single-factor rates applicable from origin to destination. Some of the shipments transported in the motor-van-sea-van service also move under single-factor rates, while other shipments in this mode move under multiple-factor rates, i.e., separate rates for different segments of the land and water transportation performed by the carrier. The issues presented in cases Nos. 259-65 and 355-65 by the pleadings, the pretrial proceedings, and the evidence at the trial will be dealt with in the succeeding parts of this opinion. I. Alleged Diversion to New Point Without SIT (Storage-in-Transit) One issue involved in the present litigation is whether there was a “diversion” of a shipment, entitling plaintiff to compensation in addition to the line-haul transportation charge when the shipment was consigned to the property owner at a specified military base at a specified city, and plaintiff was later advised by defendant, upon the arrival of the shipment at the designated base and city, and before any storage-in-transit (“SIT”) was accomplished, that the owner’s new residence was located off the base, and that the shipment should be delivered to the owner at the off-base address. Shipments 3920 and 6940 were selected by the parties as illustrating this issue. Shipment 3920 involved a situation where plaintiff was ordered by defendant to effect delivery to the property owner at a residential address located in the same city as the military base to which the shipment was consigned. A similar situation was considered by the court in TOVS, 426 F.2d at 342-344, 192 Ct.Cl. at 101-104; and the court held that no diversion of the shipment was involved because of change from original delivery instructions. After the court’s decision in TOVS was announced, plaintiff in the present litigation informed the commissioner that it was-withdrawing its diversion claim based on shipment 3920. However, TOVS did not present for consideration any claim involving a delivery to the property owner at a residential address in a city different than the city containing the military base to which the shipment was consigned. Shipment 6940 in the present litigation involves such a claim. Shipment 6940 originated in Japan and was consigned to the property owner at Maxwell Air Force Base, Montgomery, Alabama. Storage-in-transit was authorized, and plaintiff was instructed in the Government bill of lading to notify the transportation officer at Maxwell Air Force Base upon the arrival of the shipment and prior to placing it in SIT. Upon the arrival of the shipment at the designated City of Montgomery, Alabama, plaintiff notified the transportation officer at Maxwell Air Force Base, and was instructed to deliver the shipment to the property owner’s new residence, 709 Stonewall Drive, Prattville, Alabama, which plaintiff did. The distance between Montgomery and Pratt-ville is approximately ten miles. Plaintiff has already been paid for the transportation of shipment 6940 from Japan to Montgomery, Alabama. In the present litigation, plaintiff is suing for an additional amount of $40.73, based upon the alleged diversion of shipment 6940 from Maxwell Air Force Base, Montgomery, Alabama to Prattville, Alabama. As stated in Bureau tariffs and regulations, specified in our findings of fact, the term “diversion” means, for the purposes of the present litigation: (1) a change in the name of the consignor; (2) a change in the name of the consignee; (3) a change in the destination; (4) a change in the route, when requested by the consignor, consignee, or owner of the shipment; or (5) other instructions to the carrier that require a change in billing or an additional movement of the car or truck, or both. It was part of plaintiff’s responsibility, in return for the transportation charge paid by defendant, to pack and “containerize” the household goods at the origin residence, to transport the containers to the destination residence, and to remove the household goods from the containers and place them in the destination residence. At the time when the property owner was transferred from Japan to Maxwell Air Force Base, and his household goods were tendered to and accepted by plaintiff for transportation, it was not known by the property owner, by defendant, or by plaintiff just where the property owner would be residing after he began his new duty assignment at Maxwell Air Force Base at Montgomery, Alabama. The property owner might be assigned Government-owned quarters on the base, or it might be necessary for him to obtain housing elsewhere. Consequently, plaintiff was instructed in the Government bill of lading to notify the transportation officer at Maxwell Air Force Base upon the arrival of the shipment at Montgomery, so that the transportation officer could give plaintiff specific delivery instructions (or else direct plaintiff to place the shipment temporarily in SIT until delivery instructions could be issued). When the instructions of defendant’s transportation officer were given to plaintiff, changing the specified place of delivery, the shipment had arrived in Montgomery before it had been released from the custody of the carrier. If the carrier had been then directed by the transportation officer to deliver to the Maxwell Air Force Base or to another address in Montgomery, Alabama, this would not have been a diversion; there would have been no change in the destination or the original delivery instructions. Trans Ocean Van Service v. United States, supra. (“TOVS”). In TOVS the shipment in question was consigned to the property owner at Beeville, Texas (NAAS) (Naval Air Auxiliary Station). Upon arrival of the shipment in Beeville, the carrier was instructed to deliver the shipment to the property owner at 173 Ann Burke Apartments in the same City of Beeville. We held in TOVS that this was not a diversion. The trial commissioner’s opinion correctly points out that plaintiff’s diversion claim for diversion of shipment 3920 involved a situation where plaintiff was ordered to effect delivery at a residential address located in the same city as the military base to which the shipment was consigned, and because of our decision in TOVS, plaintiff withdrew its claim for 3920. The commissioner’s distinction between the claims for diversion without storage-in-transit in TOVS, and plaintiff’s claim here on shipment 6940 is clear. Our decision in TOVS does not support defendant’s position that. there was not a change in destination under the tariff or in original delivery instructions in the present case. In contending that there can be no diversion until a first delivery has been made under the single-factor rate, defendant cites Routed Thru-Pac, Inc. v. United States, 401 F.2d 789, 185 Ct.Cl. 428 (1968), where the court said: It is undisputed in shipments not involving SIT that plaintiff is obliged in consideration for the single-factor rate to “pick-up” goods at the origin residence and “deliver” these goods to the destination residence. In other words, the single-factor rate necessarily includes one “pick-up” and one “delivery” and all the land and water transportation in between. * * * (Routed Thru-Pac, supra, 401 F.2d at 793, 185 Ct.Cl. at 435). The court stated: The issue here is whether both the movement into and the movement out of storage-in-transit are accessorial or additional services subject to additional compensation under Item 145, i.e., in excess of the compensation of the single-factor rate, or whether one of the movements relating to SIT {e.g., movement into SIT when SIT occurs at destination) is already included within the single-factor rate. [Emphasis supplied], (Routed Thru-Pac, supra, 401 F.2d at 792, 185 Ct.Cl. at 432-433). The court decided that the movement into SIT at destination was included in the single-factor rate. The question now before us does not involve the issue as stated in Routed Thru-Pac, supra, which involved movements into the SIT warehouse selected by plaintiff to serve the destination set forth on the GBL. The claim then under consideration in Routed Thru-Pac was not for a “diversion” of the shipment under the applicable tariffs. Defendant first argues that since the single-factor rate covers a delivery at the destination of Montgomery, Alabama, and since no delivery was made at Montgomery under the single-factor rate, and no change was made which affected the manner in which the shipment was handled, plaintiff is not entitled to diversion for the movement from Montgomery to Prattville. Defendant’s theory would require a delivery at the original destination specified in the GBL, and then a “change in the manner” in which the shipment was handled by the delivery of the shipment to the newly specified residential address, before there could be a diversion of the shipment. Under this theory, the transportation officer could have notified plaintiff upon arrival and before delivery of the shipment in Montgomery, Alabama, that the property owner’s new residential address was in Seattle, Washington instead of Prattville, Alabama, without any resulting “diversion” of the shipment because there was no delivery at Montgomery under the single-factor rate, and no change in the manner in which the shipment was handled since there was merely a change in address of the property owner. However, the definitions of “diversion” in the tariff and regulations do not specifically include or require a change in the manner in which the shipment was handled. Defendant does qualify its argument and limits the obligation of plaintiff to deliver to the new residential address to the extent adopted in the language of the trial commissioner’s opinion. In his opinion, the commissioner first distinguished the present claim on shipment 6940 from the claim for diversion without SIT in TOVS: “However, TOVS did not present for consideration any claim involving a delivery to the property owner at a suburban residential address outside the boundaries of the city containing the military base to which the shipment was consigned. Shipment 6940 in the present litigation involves such a claim.” [Emphasis supplied.] There is no finding of fact and no evidence in the record before us to support this conclusion as to “a suburban residential address”. Prattville is an incorporated city with a population of 13,116 people, according to the official U. S. Census Report for 1970. A suburban residential area is generally defined as “the residential area on the outskirts of any city or large town; an outlying part of a city or town; a smaller place adjacent to or sometimes within commuting distance of a city.” Webster’s Third New International Dictionary at 2281 (1967). “A usually residential area or community outlying a city: [t]he perimeter of country around a major city; environs.” The American Heritage Dictionary of the English Language at 1284 (1969). The trial commissioner’s conclusion that 709 Stonewall Drive, Prattville, Alabama was a “suburban residential address” outside the boundaries of Montgomery, Alabama, is unsupported, either by evidence or by common definition. From this unsupported premise, the trial commissioner concluded: It is reasonable to infer that plaintiff understood, when it received shipment 6940 for transportation, that delivery instructions might involve a delivery to government-owned quarters at Maxwell Air Force Base or to some other residential address located within normal commuting distance for personnel working at Maxwell Air Base. Certainly, Prattville, Alabama, being located a distance of only about 10 miles from Maxwell Air Force Base, must be regarded as being within normal commuting distance of the base. [Emphasis added.] Again, there is no finding of fact or evidence in the record before us as to what “must be regarded as being within normal commuting distance of the base.” “Commute” is defined as “travel back and forth regularly or frequently (commuting between London and New York)”. Webster’s, supra at 461. A “commuter” is defined as “one that commutes (as between suburban home and city work).” Webster’s, supra at 461, or “[a] person who travels regularly between his home in one community and his work in another.” American Heritage Dictionary, supra at 270. Obviously, any exercise in semantics offers no definitive answer as to the distance or area that we must regard as being “within normal commuting distance of the base,” and there is an equal lack of any definitive answer in the findings of fact or the record as to any common understanding or practice in the industry on this point. No expert testimony was adduced to support the theory that the transportation officer could direct delivery of shipment 6940 from GBL destination of Montgomery to Prattville because Pratt-ville was within “normal commuting distance” of Montgomery. On the contrary, defendant’s witness McNeill, Assistant to the Director of the Transportation Division, General Accounting Office, who testified as an expert for defendant on other issues, did testify that whether a carrier is entitled to diversion compensation is governed by the carriers’ tariff provisions, and that a delivery to a different address than that specified on the GBL would be a diversion. This expert opinion was corroborated by another Government witness Shinn, Supervisor of the Personal Property Branch, McGuire Air Force Base, New Jersey, who added that any “local area” or “free” delivery radius in which shipments could be diverted without any additional charge for the diversion would be set out in the carriers’ tariff. Furthermore, we note that when an extended delivery radius, such as a “normal commuting distance” from the GBL destination, was contemplated by the parties, they specifically provided for such a radius in the tariff. Section II of MRT 15, provided: * * * when storage-in-transit shipments are diverted to storage in government facilities at destination, carrier will perform delivery and unpacking service within a SO mile radius of the point of storage without additional charge. * * * [Emphasis supplied.] The rates applicable to shipment 6940 (Sec. Ill of MRT 15) applied from points in Japan to specific points within specific' zones or cities within the United States. Both Montgomery and Prattville, Alabama are stated as separate destination points. This means that any orders for transportation (as evidenced by the GBL) from origin to any point within a given destination zone would be charged for at the same rate per mile, provided the shipment is not diverted from the destination stated on the GBL. It does not mean that defendant’s transportation officer could subsequently order a shipment moved between common-rated points within a given destination zone (Montgomery and Prattville in Zone 10) without incurring additional charges determined by the tariffs and regulations. We can find no ambiguity in the identical definitions of diversion stated by plaintiff in the tariff, and by defendant in its regulation, supra. As so defined, a diversion occurs when there is « * * * (3) a change in the destination.” The term “destination” is clearly defined by defendant’s regulations in DSAR 4500, which require that, in completing the GBL, the transportation officer fills in the blank section for “destination” of the shipment by inserting therein the “City, state/country” selected by him. Under defendant’s regulations, “destination” is a specific city in a specific state or country; in this case, “Montgomery, Alabama.” Defendant contends that plaintiff’s failure to bill the Government for the diversions which it now claims are clear indications of plaintiff’s contemporary interpretation of the contracts. The trial commissioner disposed of defendant’s “billing argument” in his discussion of the estoppel issue as follows : It is true that most of the claims on which plaintiff is now suing were not involved in the initial bills which plaintiff submitted to defendant in connection with the respective shipments, and which defendant paid upon presentation. Subsequently, after plaintiff hád engaged the services of two auditing firms to go over its accounts with the Department of Defense for the transportation of military household goods, plaintiff presented to the Department of Défense supplemental bills asking for charges which were not included in the original bills, or asking for additional amounts in connection with charges previously made. In this connection, however, if plaintiff initially failed to bill defendant for — and defendant failed to pay plaintiff — the correct amount that was due for transporting a particular shipment of military household goods, there would seem to be no sound basis for permitting defendant, on the ground of estoppel, to withhold the proper amount from plaintiff. Defendant has not suffered a detriment, but, on the contrary, has had the continued use of funds which plaintiff was entitled to receive several years ago. We can see no basis for concluding that the methods of original billing are to be considered as indicating a contemporaneous interpretation of the contracts so as to be binding in the interpretation of the contracts, particularly when the original bills were later corrected by audit and supplemental bills submitted. There is nothing else in the record to indicate any use or practice of the industry as in billing practices contrary to plaintiff’s claim for diversion of shipment 6940. We later consider herein the practice followed in an alleged diversion to Non-Temporary Storage. Shipment 4430 was destined by the GBL to the Brooklyn Army Terminal, Brooklyn, New York. The shipment was not delivered to the Brooklyn Army Terminal, but was reconsigned to the property owner, and placed in non-temporary storage in a warehouse of another carrier in Jersey City, New Jersey, six miles distant, by order of the transportation officer. Defendant has conceded that there was a diversion of this shipment, and admitted liability therefor. However, defendant argues here that Claim 4430 involved a reconsignment to the property owner, and a new delivery made to a new destination. The regulations already cited point out that there is no practical distinction between a “reconsignment” and a “diversion.” The only material difference in the facts as to the two shipments is that on Claim 4430, the transportation officer, under the same circumstances, ordered a change in GBL destination to a different city six miles away from the GBL destination, whereas in Claim 6940 the City of Prattville, Alabama was ten miles away from the GBL destination in the City of Montgomery. The fact that plaintiff was instructed in the GBL to notify the transportation officer at Maxwell Air Force Base upon arrival of the shipment in Montgomery of a change so that the transportation officer could give plaintiff specific delivery instructions, or else direct placement in storage-in-transit until delivery instructions could be issued, does not alter the operation of defendant’s regulation. These instructions had two purposes : first, to allow inspection and policing by the officer of carrier’s shipment performance to the destination specified. This purpose is unrelated to the question as to whether or not a shipment is diverted. The second purpose of notifying the transportation officer prior to placing the shipment in storage was for him to order the shipment placed in storage-in-transit prior to delivery to residence in the destination city specified on the GBL, or to divert the shipment to a different destination city. That the “destination” of a shipment is restricted to a specific city or point is corroborated by the language of the applicable diversion provision in MRT 15 which provides that diversion compensation is computed from the specific destination “point” to which a shipment is originally consigned and not from a commuting radius area. Section II of MRT 15 provides as follows: Rates to Apply When Shipments are Diverted or Destination Point is Consigned or Reconsigned After Commencement of Transportation Service * * * * * -X 3. When a shipment is reconsigned or diverted while enroute to the point 6f original consignment, the single factor rate will apply to the point at which the shipment is actually intercepted, and the diversion or reconsignment rate in Paragraph 4 will apply from the point of interception to the new destination point. [Emphasis supplied] . In contrast, the record shows that when a “free” delivery radius was to apply, plaintiff’s tariff specifically provided for such a radius. Thus, Section II of MRT 15 provided a 30-mile free delivery radius for shipments which were ordered placed in storage in a Government, instead of a commercial warehouse, as we have already stated. Certainly, plaintiff must have known that it could not completely discharge its contract obligation until the household goods had been delivered to and placed in the owner’s residence, as instructed, wherever it was. However, this requirement does not determine the rate for the performance of the contract, or whether there was a diversion of the shipment; this is determined solely by the tariffs and regulations. If we were to conclude now that a destination city encompasses a “normal commuting area” and that this area includes another city ten miles distant, we would still have to define a “normal commuting area” with more definite certainty in order to apply it as a decisive factor in the many other similar claims for diversion. As already stated, there is nothing in the record before us as to establish, by common practice or definition, the extent of a “normal commuting area.” The extent of the “commuting area” in each case would depend upon the wishes and habits of third persons, e.g., the property owners, who are not parties to the transportation contract, and their willingness to commute would undoubtedly vary from base to base and from time to time at the same base, depending upon imponderables for which there may not be a determinable norm for distance — for example, the use of country roads as contrasted to expressways in order to commute. The record here does not support the assumption that Sergeant Moore, the owner of shipment 6940 would necessarily be commuting to Maxwell Air Force Base; he may have been retiring in Prattville, or he may have stayed at the base and commuted to Prattville on weekends. Upon arrival in Montgomery, the serviceman might not be assigned to the base designated in the GBL where the transportation officer is located. The transportation officer at Maxwell Air Force Base was responsible for shipments of household goods of military personnel moving to or from points in 13 counties in Alabama, including two other separate Air Force bases or stations— Gunter Air Force Base and Eufaula Air Station. By the time shipment 6940 reached Montgomery, Alabama, Sergeant Moore might have been assigned to the Eufaula Air Station, eighty miles from Prattville. In order then to deny a diversion, we would have to find that this was also a “normal commuting distance.” There are many other pending claims to be determined by our diversion ruling on shipment 6940 which will require consideration of many extraneous and imponderable factors in order to determine a “normal commuting distance” ; factors that could not have been ascertained or foreseen by these claimants or by the Government in the GBL direction of destination for the shipments. “Destination” is clearly and simply defined in defendant’s own regulations as the “City, state/country” specified in the GBL as the “destination”. This is the definition of “destination” accepted by this court in TOVS, swpra, in holding that an instruction to deliver the shipment to the property owner at a new address “within the same city” was not a diversion. It is the definition of “destination” used by the Government according to its own witnesses, and it is the definition conceded by the Government, and adopted by the commissioner and by the court for shipment 4430 in this case. Plaintiff’s tariff and defendant’s regulations provide a simple, unambiguous and certain standard for disposition of all of the pending claims for Diversion Without SIT which involve claims for “change of destination.” Accordingly, we find that the instruction of the transportation officer upon arrival of shipment 6940 at its specific destination point in the City of Montgomery, Alabama, to forward the shipment another ten miles to a new address in the City of Prattville, Alabama, ten miles distant, was a diversion of the shipment by a change in its destination within the meaning of the applicable tariffs and regulations. II. Alleged Diversion to SIT These cases initially involved the issue of whether there was a diversion when plaintiff was instructed by defendant to place a shipment temporarily in storage-in-transit at the destination point instead of making delivery to the destination address shown on the bill of lading (SIT being authorized by the bill of lading). Shipments 1100, 1240, 1520, 1820, and 5660 were selected by the parties as illustrating such issue. This same issue was considered by the court in TOVS, and the court decided that instructions for the placement of a shipment in SIT under the circumstances outlined in the preceding paragraph did not constitute a diversion (426 F.2d at 338-341, 192 Ct.Cl. at 94-98). Subsequently, plaintiff in the present litigation notified the commissioner that it was withdrawing its claims based on the alleged diversion of shipments 1100, 1240, 1520, 1820, and 5660 to SIT. III. Alleged Diversion to Non-Temporary Storage Shipment 4430 in the present litigation involves the question of whether there was a diversion of a shipment when plaintiff was instructed by defendant, upon the arrival of the shipment at the destination city designated in the government bill of lading, to deliver the shipment to a warehouse for non-temporary storage (plaintiff having no connection with such warehouse). Shipment 4430 originated in France and was consigned on the government bill of lading to the port transportation officer at the Brooklyn Army Terminal in Brooklyn, New York, but the GBL indicated that the owner was S/Sgt. Jerome E. Paul. Plaintiff was instructed in the bill of lading to notify the port transportation officer upon the arrival of the shipment in Brooklyn. Plaintiff did so, and the transportation officer directed that the shipment be placed in the Jersey City warehouse of Major Van Lines for non-temporary storage (plaintiff having no connection with that warehouse). This was confirmed through the issuance of a written “Notice of Diversion” by the transportation officer. Plaintiff has been paid for the transportation of shipment '4430 from France to New York, and has also been paid a diversion mileage charge in the amount of $22.30 for the movement from the Brooklyn Army Terminal to the non-temporary storage warehouse in Jersey City. In the present litigation, plaintiff’s claim on shipment 4430 is for the flat $5 diversion charge provided for in Item 155 of the Bureau’s Military Rate Tariff No. 4. Defendant has conceded that there was a diversion of shipment 4430, and has admitted liability for the flat $5 diversion charge with respect to this shipment. IV. SIT Extension When instituted, the present litigation involved a question as to whether there was a diversion in a situation where the government bill of lading covering a shipment authorized storage-in-transit at the destination for a period of “not to exceed 90 days,” the shipment was placed in SIT at the destination point for 90 days, and the period of storage was then extended further by defendant upon the expiration of the 90-day period. This question was raised in connection with shipments 4800 and 6980. The question outlined in the preceding paragraph was also involved in TOVS; and the court held that an extension of SIT beyond the period authorized in the bill of lading did not constitute a diversion (426 F.2d at 341, 192 Ct.Cl. at 98-100). Thereafter, plaintiff in the present litigation informed the commissioner that it was withdrawing its diversion claims based on shipments 4800 and 6980. V. Delivery From SIT Shipments 1240, 5280, 5960, and 6820 were selected by the parties to illustrate plaintiff’s claims based upon the alleged delivery of shipments from storage-in-transit. However, with respect to shipments 5960 and 6820, it subsequently developed that plaintiff had already been paid the delivery charges to which plaintiff felt entitled. Accordingly, no additional compensation is now sought by plaintiff for the delivery of shipments 5960 and 6820 from SIT. Shipment 5280 originated in England. It was consigned on the government bill of lading to the transportation officer at Luke Air Force Base, Arizona, but the bill of lading indicated that S/Sgt. Richard I. Whittaker was the property owner. The bill of lading authorized SIT at destination for a period of 90 days, and instructed plaintiff to notify the transportation officer at Luke Air Force Base prior to placing the shipment in SIT. Upon the arrival of the shipment at Phoenix, Arizona, plaintiff notified the transportation officer and was instructed to place the shipment in SIT, which plaintiff did. Plaintiff was subsequently directed by defendant to remove the shipment from the SIT warehouse in Phoenix and deliver it to the property owner in Goodyear, Arizona. In this connection, plaintiff concedes in its reply brief that the distance traveled in effecting delivery from SIT was only about 12 miles. Plaintiff has been paid charges for the transportation of shipment 5280 from England to Arizona, for the delivery of the shipment to storage in Phoenix, for the storage, and for the warehouse handling. In the present litigation, plaintiff claims additional compensation in the amount of $109.20 for the delivery of shipment 5280 from SIT, based on the rate for this service prescribed in Section Y of Supplement 15 to the Bureau’s Military Rate Tariff No. 4 (plaintiff being a party to that tariff). Shipment 5280 moved under the Bureau’s Military Rate Tariff No. 19, to which plaintiff was a party. That tariff contained a provision which dealt with the subject of “Delivery to Storage-in-Transit” and which stated in part as follows: 1. All shipments consigned to storage-in-transit are subject to a charge, to deliver to storage-in-transit, of one dollar ($1.00) per net cwt. Plaintiff’s initial bill to defendant in connection with shipment 5280 included a charge in the amount of $55.85 for delivery to SIT, based upon the tariff provision quoted in the preceding paragraph. Defendant paid the charge of $55.85, as well as the other charges contained in plaintiff’s bill. Plaintiff did not, in its initial bill, include any charge for the delivery of shipment 5280 from SIT. Subsequently, plaintiff submitted a supplemental bill to defendant, setting out an additional charge of $109.20 for the delivery of shipment 5280 from SIT. Defendant refused to pay this additional charge, and it is involved in the present litigation. Actually, the provision previously quoted from MRT No. 19, dealing with the delivery of shipments to SIT, was not applicable to shipment 5280. That provision related only to “shipments consigned to storage-in-transit,” and shipment 5280 was not in that category. Instead, shipment 5280 was consigned to the transportation officer at Luke Air Force Base, Arizona. Thus, plaintiff's charge in the amount of $55.85 — which defendant paid — for the delivery of shipment 5280 to SIT was improperly assessed. The line-haul transportation charge on shipment 5280 covered one delivery of the shipment at the destination point, and this delivery was accomplished when the shipment was delivered to the SIT warehouse in Phoenix pursuant to defendant’s instructions. On the other hand, MRT No. 19 expressly stated that the transportation charge did not cover any “extra * * * delivery.” In the case of shipment 5280, the movement of the shipment from the SIT warehouse in Phoenix over a distance of about 12 miles to the property owner in the nearby town of Goodyear was an “extra * * * delivery.” Consequently, plaintiff was entitled to receive additional compensation for accomplishing the extra delivery of shipment 5280. MRT No. 19 did not contain any provision expressly covering the delivery of shipments from storage-in-transit. However, MRT No. 19 did contain a note under the heading of “Rules, Regulations and Additional Services” which stated in part as follows: NOTE: For service charges that are not included in the transportation rates (EXCEPT for service charges provided herein), refer to Military Rate Tariff ICC No. 4 * * *. Since MRT No. 19 did not prescribe a service charge for the delivery of shipments from SIT, it is necessary, under the note just quoted, to refer to MRT No. 4 in considering this particular service charge on shipment 5280. Section V of Supplement 17 to Military Rate Tariff No. 4 prescribed “PickUp or Delivery Transportation Rates to Apply on Storage-in-Transit Shipments.” With respect to deliveries from SIT effected in Arizona, where the movement was wholly within the same municipality or involved a distance not greater than 30 miles, the rates prescribed in Section V ranged from $1.50 to $3.40 per hundred pounds, depending upon the weight of a particular shipment. This is the provision that should be applied in calculating the amount of the service charge that was due plaintiff for effecting the delivery of shipment 5280 from the SIT warehouse in Phoenix to the property owner in Goodyear. Plaintiff is entitled to recover the difference between the amount of the proper charge for the delivery of shipment 5280 from SIT and the amount of the improper charge previously collected by plaintiff for the delivery of this shipment to SIT. Shipment 1240 originated in Germany and was consigned on the government bill of lading to the transportation officer at the Army Terminal Command in Brooklyn, New York. Storage-in-transit was authorized; and plaintiff was instructed to get in touch with the transportation officer upon the arrival of the shipment in Brooklyn. Plaintiff did so, and was directed to place the shipment in storage-in-transit. The SIT was accomplished in the Hoboken, New Jersey, warehouse of plaintiff’s agent. Plaintiff was subsequently ordered by defendant to remove the shipment from SIT and deliver it to the property owner in Fort Sill, Oklahoma, and plaintiff did so. In connection with the movement of shipment 1240 from the SIT warehouse in Hoboken, New Jersey, to the property owner in Fort Sill, Oklahoma, plaintiff has been paid a mileage charge in accordance with the provisions of Military Rate Tariff No. 19 dealing with the subject of diversions. In the present litigation, plaintiff contends that its compensation for this movement should have been calculated in accordance with the delivery transportation rates applicable to storage-in-transit shipments, under the portion of Military Rate Tariff No. 4 previously discussed in connection with shipment 5280; and, therefore, that plaintiff is due the additional amount of $243.47 on the movement of shipment 1240 from the SIT warehouse in Ho-boken, New Jersey, to the property owner in Fort Sill, Oklahoma. It has been previously noted that the provision of MRT No. 4 prescribing rates for the delivery of shipments from SIT was incorporated by reference in MRT No. 19 by virtue of a note in MRT No. 19 stating that for “service charges” (other than those provided for in MRT No. 19 itself) reference should be made to MRT No. 4. With respect to the movement of shipment 1240 from the SIT warehouse in Hoboken, New Jersey, to the property owner in Fort Sill, Oklahoma, this was not a mere “extra * * delivery” of the shipment for which a “service charge” was appropriate. Rather, what was involved in this instance was a diversion — i. e., a change in the destination — of shipment 1240. Consequently, defendant did not err in computing plaintiff’s compensation for the movement of shipment 1240 from Hoboken, New Jersey, to Fort Sill, Oklahoma, on the basis of the diversion mileage rates prescribed in MRT No. 19. It necessarily follows that plaintiff’s present claim based on the contention that the movement of shipment 1240 from Hoboken, New Jersey, to Fort Sill, Oklahoma, was a delivery from SIT, and thus was compensable under Section V of Supplement 17 to MRT No. 4, cannot be sustained, and the petition should be dismissed as to such claim. VI. Additional Transportation Allegedly Performed as a Result of Maritime Strikes The parties selected shipments 3160, 5820, and 1340 as being illustrative of plaintiff’s claims based upon additional transportation allegedly performed as a result of maritime strikes that occurred in October and December of 1962. On October 1, 1962, there was a strike by approximately 50,000 longshoremen in the Atlantic and Gulf ports of the United States, from Maine to Texas. The longshoremen returned to work on October 8, 1962, pursuant to a Taft-Hartley Act injunction issued by the United States District Court for the Southern District of New York. On December 23, 1962, the longshoremen went on strike again; and this strike lasted until the latter part of January 1963. The East Coast and Gulf Coast ports were closed while the strikes were in progress. Because of the maritime strikes and their effect on overseas movements of military household goods (other than those moving in Mode 5), defendant notified plaintiff and other carriers of military household goods that if they wished to do so on a voluntary basis, they could turn shipments of military household goods over to the Military Sea Transportation Service (“MSTS”) at military ocean terminals in origin countries for transportation aboard MSTS vessels to military ocean terminals in destination countries. Any carrier wishing to avail itself of this opportunity had to agree to reduce its customary transportation charges in order to take into account the port handling and the ocean transportation provided by MSTS. Shipment 3160 was tendered to plaintiff for movement in the door-to-door container mode from Amarillo Air Force Base in Texas to the property owner at Torrejon Air Base in Spain. Plaintiff transported the shipment to New Orleans, Louisiana. Because of the December 1962 maritime strike, plaintiff voluntarily turned the shipment over to the MSTS at the Army Transportation Terminal in New Orleans for transportation to Spain. Shipment 3160 was loaded aboard an MSTS vessel in New Orleans on or about December 20, 1962; it was subsequently discharged at the MSTS ocean terminal in Cadiz, Spain; and it was then transported by plaintiff to the property owner at Torrejon Air Base. Plaintiff has been paid for the transportation of shipment 3160 from Amarillo Air Force Base in Texas to Torre-jon Air Base in Spain. Cadiz, where shipment 3160 was unloaded from the MSTS vessel, is located 443 miles from Torrejon Air Base, the ultimate destination of the shipment. The commercial port of debarkation nearest to Torrejon Air Base is Barcelona, which is located 377 miles from Torrejon Air Base. In this connection, the evidence in the record indicates that plaintiff probably would have used Barcelona as the port of debarkation for shipment 3160 if the maritime strike had not occurred and the ocean transportation had been accomplished via a commercial ship. In the present litigation, plaintiff asserts a claim for additional compensation in the amount of $39 on a quantum me-ruit basis because shipment 3160 was discharged by the MSTS vessel at Cadiz. This charge is computed by using, as the measure of compensation, the overseas transportation rate prescribed in Section VII of Supplement 17 to Military Rate Tariff No. 4 for shipments moving within Spain, and applying such rate to a distance of 66 miles (representing the difference between the 443 miles that shipment 3160 moved in traveling from Cadiz to Torrejon Air Base and the 377 miles that this shipment would have moved in traveling from Barcelona to Torrejon Air Base if a commercial ship had been used for the ocean transportation and such ship had landed at Barcelona) . If plaintiff had performed additional land transportation in connection with shipment 3160 because of some action taken by defendant, plaintiff might properly seek additional compensation on the basis of such additional transportation. However, the circumstance that shipment 3160 was debarked at Cadiz instead of Barcelona was not due to any requirement, request, or other action on the part of defendant. Rather, it was because plaintiff voluntarily elected to turn the shipment over to the MSTS for the ocean portion of the movement in order to overcome the difficulty which the maritime strike of December 1962 created for plaintiff in obtaining ocean transportation for this shipment. Plaintiff knew, when it voluntarily turned shipment 3160 over to the MSTS in New Orleans, that the shipment would be debarked at a military ocean terminal in Spain; and plaintiff thus impliedly agreed to assume any extra burden that might be involved in transporting the shipment from the military ocean terminal to Torrejon Air Base. The present situation is outside the scope of the rule stated by this court in TOVS, 426 F.2d at 349, 192 Ct.Cl. at 113, to the effect that the carrier there was entitled to “extra compensation on a quantum meruit basis in connection with the performance of additional land transportation from the port of debarkation to the destination point in a situation where the plaintiff’s normal routing procedure was frustrated by the defendant, with the result that the port of debarkation actually used was more distant from the destination point than the port ordinarily used in connection with shipments moving from the origin point to the destination point.” With respect to shipment 3160 in the present litigation, plaintiff’s normal routing procedure was not frustrated by defendant to any extent. It was the maritime strike —for which defendant was not responsible in any way — that frustrated plaintiff’s normal routing procedure and caused plaintiff to call on defendant for assistance in connection with the ocean transportation of shipment 3160. For the reasons stated, plaintiff is not entitled to recover on its claim based upon the additional land transportation which plaintiff performed when shipment 3160 was debarked at Cadiz rather than Barcelona. Plaintiff also asserts in the present litigation a claim for additional compensation in the amount of $46.58 (representing a minimum diversion mileage charge in the amount of $41.58 and the flat $5 diversion fee) based upon the alleged diversion of shipment 3160 at New Orleans. Plaintiff says in its brief that the surrender of shipment 3160 to the Army Transportation Terminal in New Orleans for ocean transportation aboard an MSTS vessel involved “a change in the routing of * * * [the] shipment” or “an instruction necessary to enable * * * [the] carrier to effect delivery,” and, therefore, amounted to a diversion. However, it is plain from the definition of “diversion” set out in part I of this opinion that “a change in the route” of a shipment constitutes a diversion only when, the change is made by the carrier at the request of someone else. In this instance, the change from the anticipated use of a commercial vessel to the use of an MSTS vessel for the ocean portion of the movement was not made pursuant to a request from someone else, but was made at the instigation of plaintiff itself. Furthermore, an “instruction” amounts to a diversion only when the carrier receives an instruction from someone else and this requires a change in the billing or an additional movement of the car or truck. In this connection, it has been noted previously that the use of an MSTS vessel rather than a commercial ship for the ocean transportation of shipment 3160 was not due to any instruction which plaintiff received from someone else, but was due to plaintiff’s own voluntary action. It is true that defendant’s transportation officer in New Orleans did issue a document designated as a “Diversion Order” with respect to shipment 3160, stating that the shipment was “diverted * * * at USATTC(G)” [U. S. Army Transportation Terminal Command (Gulf)] by plaintiff on December 20, 1962. That document, however, was not issued until February 19, 1963, or 2 months after shipment 3160 was loaded aboard an MSTS vessel in New Orleans. Thus, the so-called “Diversion Order” was, in reality, a retroactive confirmation of the acceptance of shipment 3160 by the MSTS for the ocean portion of the movement to Spain, at the request of plaintiff, rather than a directive from the transportation officer requiring plaintiff to change the handling of the shipment. In connection with plaintiff’s claim based on the alleged diversion of shipment 3160 in New Orleans, it is pertinent to note that the evidence does not show — and, indeed, plaintiff in its requested findings of fact does not ask the court to find — that plaintiff first delivered shipment 3160 to a commercial pier in New Orleans and thereafter transferred it to the Army Transportation Terminal so that it could be loaded aboard an MSTS vessel. Thus, it is reasonable to infer that, upon the arrival of shipment 3160 in New Orleans, plaintiff delivered it directly to the Army Transportation Terminal, so that no extra hauling of the shipment between piers in New Orleans was involved. Cf. TOVS, 426 F.2d at 349-350, 192 Ct.Cl. at 113-114. For the reasons indicated, plaintiff’s diversion claim on shipment 3160 must be denied, and the petition should be dismissed as to such claim. The reasoning previously set out in this part of the opinion is equally applicable to, and requires the rejection of, plaintiff’s diversion claim on shipment 5820 and plaintiff’s claim on a quantum, meruit basis for increased compensation because of additional land transportation performed in connection with shipment 1340. VII. Additional Transportation Allegedly Performed on Mode 5 Shipments Shipment 3290 was selected by the parties to illustrate plaintiff’s claims based upon additional land transportation allegedly performed in connection with Mode 5 shipments. Shipment 3290 was tendered to plaintiff in the Panama Canal Zone for transportation in Mode 5 to Fort Bragg, North Carolina, which would involve the use of an MSTS vessel for the ocean part of the movement from Panama to the United States. The shipment was transported by an MSTS vessel from Panama to New Orleans, Louisiana, where plaintiff consolidated the shipment with other shipments for further transportation by flat-bed trailer to Fort Bragg. In the petition and at the trial, plaintiff claimed that shipment 3290 should have been discharged at the port of Charleston, South Carolina, and that plaintiff was entitled to additional compensation in the amount of $93.96 on a quantum meruit basis for the additional land transportation which plaintiff was required to perform on shipment 3290 because the shipment was discharged at New Orleans rather than at Charleston. A similar issue was involved in TOVS; and the court held (426 F.2d at 346-347, 192 Ct.Cl. at 109-110) that the carrier, in accepting a shipment for transportation in the Mode 5 service, impliedly agreed to transport the shipment to the destination point from any destination-country MSTS port previously listed by the carrier as being among the ports from which the carrier was willing to provide service on Mode 5 shipments moving from the origin country. After the decision in TOVS was announced, plaintiff informed the commissioner that it was withdrawing its claim for additional compensation on shipment 3290 with respect to the additional land transportation performed. VIII. Shipments Originating Outside Tariff Pickup Radius Shipments 120, 8720, and 3019 were selected by the parties as illustrating plaintiff’s claims based on additional land transportation allegedly performed in picking up shipments at points outside the pickup radius prescribed in an applicable tariff provision. The evidence in the record shows that shipment 120 was picked up by plaintiff at a point in the Philippine Islands outside the applicable pickup radius prescribed in Section IV of Supplement 3 to Military Rate Tariff No. 6, and that shipment 8720 was picked up at a point in Japan outside the applicable pickup radius prescribed in the same section. However, the evidence also shows that plaintiff has already been paid the amount of $64.23 claimed for the additional land transportation performed in connection with shipment 120. Therefore, plaintiff is not entitled to any additional recovery on shipment 120. With respect to shipment 8720, defendant concedes that plaintiff was originally entitled to receive compensation for the additional land transportation performed in picking the shipment up at a point outside the applicable tariff pickup radius. Defendant contends, however, that plaintiff’s claim on shipment 8720 is now barred by the pertinent statute of limitations. This contention is rejected in part XVIII of the opinion. Consequently, plaintiff is entitled to recover on its claim relative to shipment 8720. The evidence in the record shows that shipment 3019 was not picked up by plaintiff outside the applicable tariff pickup radius. Plaintiff stated in its requested findings of fact that it was withdrawing its claim for additional compensation on the ground that shipment 3019 allegedly originated outside the applicable tariff pickup radius. IX. Shipments Allegedly Packed At Non-Temporary Storage Origins Shipments 4240 and 5080 were selected by the parties to illustrate a controversy that arose over the question of whether, when a shipment was in non-temporary storage at the origin point and it appeared that plaintiff packed some of the household goods prior to transporting them, plaintiff was 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 the household goods was performed prior to storage or, in the alternative, that the repacking of such household goods was directed by a transportation officer. A similar controversy was involved in TOVS, and the court held (426 F.2d at 344-345, 192 Ct.Cl. at 104-106) that a carrier picking up a shipment from non-temporary storage, and performing some preliminary packing of the household goods prior to the movement was not entitled to charge the full line-haul transportation rate unless the carrier proved either that no preliminary packing of the household goods was performed by anyone else prior to storage, or that the repacking was directed by a transportation officer of the defendant. After the decision in TOVS was announced, plaintiff informed the commissioner that it was withdrawing its claim on shipment 4240. In connection with shipment 5080, plaintiff was actually paid the full single-factor transportation rate from origin to destination. Plaintiff billed for this shipment (which moved from Marysville, California, to Ramey Air Force Base, Puerto Rico) on the basis of a single-factor rate of $27.45 per cwt. prescribed in Tariff ICC 731; and the bill was paid by defendant. In the present litigation, defendant filed a counterclaim for the amount of $13.80 on shipment 5080, contending that the line-haul transportation rate of $27.45 per cwt. was subject to the $1.50 per cwt. reduction provided for in MRT No. 16 with respect to shipments originating at non-temporary storage warehouses. Since the evidence in the record fails to show that no preliminary packing was performed on the household goods in shipment 5080 prior to their placement in non-temporary storage, and there is no evidence indicating that defendant directed plaintiff to repack these goods, it must be concluded that the line-haul transportation rate of $27.-45 per cwt. should have been reduced by the $1.50 per cwt. provided for in MRT No. 16 with respect to shipments originating at non-temporary storage warehouses. In its reply brief, plaintiff does not interpose any objection to a recovery by defendant on its counterclaim with respect to shipment 5080. X. Warehouse Handling Allegedly Performed in Government Warehouse Shipments 1040 and 1669 illustrate claims asserted by plaintiff on the basis of warehouse handling allegedly performed in government-owned warehouses. As indicated in previous portions of this opinion, a carrier of military household goods is sometimes directed, upon the arrival of a shipment at the destination point, to place the shipment temporarily in storage-in-transit pending the issuance of specific directions with respect to the delivery of the shipment to the property owner at his new residence. The SIT may be accomplished in a commercial warehouse or in a government-owned facility, if available. The placement of a shipment in SIT involves the performance of a service known as “warehouse handling.” Warehouse handling is the service of (1) moving a shipment from the platform at the entrance of the storage warehouse to the area within the warehouse where the shipment will remain during the SIT period, (2) the necessary record-keeping, and (3) the reverse movement out to the platform when the shipment is removed from SIT. Warehouse handling is always performed by someone when a shipment is placed in storage-in-transit, and it consists of the same activities irrespective of whether the service is performed in a commercial warehouse or in a government-owned storage facility. Shipment 1040 originated in Germany and was consigned to the property owner at El Paso, Texas. Upon the arrival of the shipment, plaintiff was instructed by defendant to place the shipment in a government-owned warehouse facility at Fort Bliss for SIT. Fort Bliss is located on the outskirts of El Paso. Subsequently — and again pursuant to a directive from defendant — plaintiff removed shipment 1040 from the government-owned warehouse and delivered it to the property owner in El Paso. Shipment 1669 originated in Olympia, Washington, and was consigned to Fort Kobbe, Panama Canal Zone. On arrival, the shipment was placed in a government-owned warehouse for SIT pending the issuance of definite delivery instructions. Plaintiff is asserting claims in the present litigation on the basis of warehouse handling allegedly performed in connection with shipments 1040 and 1669. The subject of warehouse handling performed in a government-owned warehouse was dealt with in TOVS; and the court held (426 F.2d at 350-351, 192 Ct. Cl. at 115-117) that a carrier is entitled to assert a claim when the carrier performs this necessary service in a government-owned warehouse, to the same extent as if the service had been performed by the carrier in a commercial warehouse. However, the evidence in the prior ease showed — and the court found as a fact — that the necessary handling of the shipment into and out of the government-owned warehouse was performed by the carrier (through its local agent). In the present litigation, the evidence in the record does not show who performed the necessary warehouse handling service in connection with the placement of shipments 1040 and 1669 in, and their removal from, SIT. The essential warehouse handling service in connection with either shipment may have been performed by plaintiff (or plaintiff’s local agent), or it may have been performed by personnel of defendant on duty at the particular government-owned warehouse. Ob