court held that the rate for scrap iron applied and the Circuit Court affirmed that action.
The case of Nashville, C. & St. L. Ry. v. Breman, D.C.N.D.Ga.1947, 75 F.Supp. 539, is very similar to the case in issue. The question was whether the rates pertaining to scrap iron, or the higher rates applicable to bolts and nuts, should apply. There, as here, the shipper paid the lower rate and the railroad sued for the difference. The Weighing and Inspection Bureau, after an inspection, changed the bills of lading to the higher classification, although none of the material could be used in its original state. The court held the lower classification of the shipper was proper and gave judgment for the defendant saying, at page 540:
'As pointed out by the Circuit Court of Appeals of the Eighth Circuit in Atchison, T. & S.F. Ry. Co. v. United States ex rel. Sonken-Galamba Corp., 98 F.2d 457, the Weighing and Inspection Bureaus are highly technical in their definitions and that they make their classifications regardless of whether it would be practicable or impracticable to use the material for any other purpose than remelting and regardless of how much or how little or whether there is any demand therefor for any other purpose.'
In support of its view, the plaintiff cites Sonken-Galamba Corporation v. Union Pac. R. Co., 10 Cir., 1944, 145 F.2d 808, where the court reviewed a number of cases dealing with the problem of whether particular metals tendered for shipment were or were not scrap iron, holding that the use which may be subsequently made of the material does not control the question. But, even so, in reversing the lower court which gave judgment for the railroad company, the court held that the lower rates for scrap were applicable, concluding, at page 813: '* * * it is clear from the evidence that predominantly the only value attributable to these tank bottoms was for remelting purposes only * * *.' Furthermore, in many cases cited by the court in its opinion the material could be used for its original purpose. That is not our case.
This Court is of the opinion that the present shipment was not spitting cups as manufactured, but that the material had deteriorated to a point where it should have been classified as waste paper. The lower rates were applicable, and having been paid by the defendant, judgment will be entered in its favor.
The foregoing findings of fact and conclusions of law embodied in this opinion may be taken as the Findings of Fact and Conclusions of Law of the Court.
An appropriate order will be submitted.
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