Findings of Fact 136 C. Cls. than subject to the established carload minimum weight for each car used. An exception was provided as to Rule 29 of the Consolidated Classification or to any similar provision in other tariffs relating to minimum weights of carload shipments of articles which by reason of their length require two or more open cars for their transportation. Under Service Order No. 68, shippers are not required to accept cars of a different size than those ordered, but, if they accept and use such cars, they must either load the minimum weight for the car used or pay charges on the basis of the minimum weight for the car used. The effect of this order was to materially increase the loading of freight cars. It also brought to light the fact that certain existing carload minimum weights were not properly adjusted. In order to handle protests against the operation of this order and to suggest changes which might alleviate hardships from this order, we appointed an employees' committee consisting of the Directors of the Bureaus of Traffic, Service, and Inquiry and two examiners. This committee is called the Advisory Committee on Car Service Orders. Certain adjustments in minimum weights have been made by the carriers in cooperation with this committee, including a general change in the minimum weights applicable to open-top cars. 18. On five different occasions, the War Department went to the Interstate Commerce Commission, complaining about the effect of Service Order No. 68 and requesting that military shipments be exempted from the provisions of the order. The first attempt in this regard was made on July 1, 1943, when the Under Secretary of War wrote Interstate Commerce Commissioner J. Monroe Johnson as follows: It has been brought to my attention that Service Order No. 68 issued by your commission and effective 15 February 1942 has resulted in a very substantial increase in the War Department's transportation expenditure due to the necessity of moving freight by means of whatever equipment is available regardless of whether the size of the car furnished meets the particular needs of a shipment. I am also informed that the constant shortage of open-top equipment has aggravated this situation. The Department appreciates that the purpose of Service Order No. 68 was to effect the further conserva 1 Findings of Fact tion of railroad equipment. It is the intention of the Department, to the extent that military requirements permit, to obtain the maximum use of all railroad equipment utilized in the movement of Army shipments. Every effort has been made and will continue to be made to assure maximum loadings and the elimination of all inefficient use of equipment. The War Department is of the view that Service Order No. 68, in so far as it is applicable to Department traffic, does not operate to conserve railroad equipment. It has, however, caused very substantial increases in transportation charges and unwarranted and increased revenue to the carriers. It is therefore requested that consideration be given to the issuance of an amendment to Service Order No. 68. An amendment containing substantially the following is suggested: The provisions of this order in so far as it applies to the operation of tariff provisions and car service rules relating to shipments by or consigned to any organization or installation of the United States War Department, be and it is hereby, vacated. You may desire to confer with a representative of the Department concerning this matter. Accordingly, I have directed The Judge Advocate General to designate an officer of his Department to call upon you. This representative will be available for conference and will endeavor to furnish any additional information you may desire. Commissioner Johnson replied by letter of September 4, 1943, denying the relief requested and stating in pertinent part as follows: Service Order No. 68 is quite broad in its application. In addition to its operation when a larger car is furnished than ordered, it suspends Rule 24 of the Consolidated Freight Classification providing for the use of follow-lot or trailer cars and a waiver of the carload minimum; it also suspends that portion of Rule 34, providing for the furnishing of two smaller cars for a larger car ordered, with a waiver of carload minimum weights. If shipments consigned by or to the Army were exempted from the operation of Service Order No. 68, two cars could be furnished where only one was ordered, and this certainly would have an adverse affect [sic] upon carloading as well as car supply. It is contended in the third paragraph of your letter that the order has not operated to conserve railroad Findings of Fact 136 C. Cls. equipment. This order has been very instrumental in utilizing available car supply at a particular shipping point without resorting to the wastage of transportation by hauling empty cars hither and yon to meet the needs of a shipper for a car of a particular dimension. While it is undoubtedly true that the order has caused increases in transportation charges with a consequent increase in revenue to the carriers, this fact alone is not a proper objection to the order in view of the limited number of cars which the railroads have at their disposal and the large volume of traffic being now carried. For the present, at least, I feel that exemption of shipments by or consigned to any organization or installation of the United States War Department would be unwise. 19. On October 30, 1943, the War Department submitted to the Interstate Commerce Commission a formal petition requesting that Service Order No. 68 be set aside to the extent that it suspended the operation and application of Sections 2 (a) and 6 (a) of Rule 34 with respect to shipments made by or consigned to the War Department. The petition read in part as follows: (4) The War Department makes and receives numerous interstate shipments of carload freight by common carriers by railroad, the transportation charges on which are paid by the War Department. In many instances, particularly in the case of open-top equipment, the rail carriers are unable to furnish cars of the length required and ordered and furnish cars which are greater in length than required and ordered for the transportation of said shipments. Some of the shipments comprise commodities which are light loading, the weight of the quantity to be shipped barely equaling or being less than the minimum weight for the length of car ordered. Many shipments consist of articles which are of such size and shape that only a certain number can be loaded, regardless of the length of the car furnished. For example, only three gun mounts of a particular type can be loaded in a car, whether the car is 40 or 50 feet long. A great many shipments of War Department freight are of an emergency character and must be loaded and transported promptly in whatever cars are available at the time and place of shipment. Due to the emergency character of the shipments and the inability of the carriers to furnish cars of the length ordered, it is necessary to use the cars furnished 1 Findings of Fact by the carriers for the transportation of such shipments, even though the cars are longer than required and ordered and the circumstances of the particular shipment make it impossible to utilize the full capacity of the cars. A considerable number of shipments of this character are subject to Rule 34 of the Consolidated Freight Classification. The provisions of Service Order 68, as amended, require, however, that the carriers assess and collect from the War Department charges based upon the minimum weight established for the length of the car furnished by the carrier and used in the transportation of the shipment, notwithstanding the fact (a) that the minimum weight for the car furnished exceeds the minimum weight for the car ordered and the actual weight of the shipment, (b) that in box cars the loading capacity of the car furnished was not used, and (c) that on open-top equipment the lengths of the article or articles shipped were such that they could have been loaded on the car ordered. (5) Service Order 68, as amended, in so far as it affects shipments made by or to installations of the War Department, does not result in heavier loading and a more efficient use of railway cars than would exist without said order. On the contrary, and for the reasons previously stated, the application of the order has resulted in the assessment to the War Department of increased transportation charges which are excessive and unjust and unreasonable. Said order has caused, and, so long as it is made applicable to War Department traffic, will continue to cause, a substantial increase in the aggregate amount paid or to be paid by the War Department for transportation services, required in the prosecution of the war, a result which, in the opinion of your petitioner, was not contemplated or intended at the time when the order was issued. On December 13, 1943, the Commission granted the application for permission to file the petition. However, on March 6, 1944, the Commission entered an order denying the petition. 20. On January 9, 1945, the War Department submitted a second petition to the Interstate Commerce Commission, requesting that Service Order No. 68 be set aside to the extent that it suspended the operation and application of Section 6 (a) of Rule 34. The petition stated that Service Order No. 68 was less applicable to open-top equipment than Findings of Fact 136 C. Cls. to box cars, because (1) shipments in open cars can easily be checked to determine whether the articles could have been loaded on a car of the size ordered; (2) only 57 percent of the flat and gondola cars were 41 feet 6 inches in length or less, and therefore the order affected 43 percent of the opentop cars but only 10 percent of the box cars. The petition also alleged that a tremendous volume of War Department traffic moved on open-top cars, and that many War Department shipments were of an emergency nature which had to be loaded and transported promptly in whatever cars were available at the time and place of shipment, even though the cars furnished were longer than the cars needed and ordered. It was further contended in the petition that Service Order No. 68 had not resulted in a more efficient use of open-top cars transporting War Department shipments, but had caused the assessment of increased charges which were excessive, unjust, and unreasonable; that in furnishing longer cars than ordered, the carriers were being unjustly enriched at the expense of the War Department, since it was unable to refuse the use of the cars furnished. Attached to the petition was a schedule of shipments made in 1944, less than two years prior to the filing of the petition, on flat and gondola cars. The schedules showed that excess charges of more than $1,000,000 per year had resulted from the application of Service Order No. 68. The Interstate Commerce Commission never acted on the petition of January 9, 1945. It was withdrawn because on July 20, 1945, the carriers extended to the Government a rate quotation granting certain reductions, pursuant to Section 22 of the Interstate Commerce Act. 21. On January 10, 1949, representatives of the War Department conferred with Commissioner J. Monroe Johnson of the Interstate Commerce Commission and again requested relief from the application of Service Order No. 68. No action was taken to modify or vacate the order at that time, but Commissioner Johnson requested the American Association of Railroads to advise all the rail carriers that when the Army ordered cars of a size or type that were not immediately available, the carriers should inquire whether the shipments were of sufficient urgency to justify the use |