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1. Plaintiff is a corporation created, organized, and existing under the laws of the State of Virginia, is a common carrier by railroad of persons and property for hire in the southeastern section of the United States, and as such is engaged in interstate commerce and subject to the Interstate Commerce Act, its tariff charges for transportation services rendered being duly published and filed as required by law. Plaintiff's lines of railroad connect with the lines of other common carriers by railroad who are likewise engaged in interstate commerce and subject to the Interstate Commerce Act and whose tariff charges for transportation services rendered are duly published as required by law.

2. The plaintiff sues the Government for freight charges earned by it in carrying goods for the Government, but not paid because they were set off by the Government's fiscal officers against alleged overcharges on an earlier shipment. In 1944 the Government ordered five open cars, each to be 40 feet long, to carry certain trailers from Mansfield, Louisiana. The trailers could have been loaded on 40-foot cars. The railroad presented five cars, each 42 feet long. The Government used the 42-foot cars. By published tariffs in force at the time, the minimum weights for which the shipper had to pay freight charges for carload shipments, even though his load weighed less than those minima, were, for 40-foot cars, 20,000 pounds, and for 42-foot cars, 24,400 pounds. The trailers weighed less than either of these minima. The difference in freight charges for the different minimum weights for the five cars was, for the shipments here in question, $239.80.

3. The dispute between the parties arises out of the interpretation and application of Service Order No. 68, which was issued by the Interstate Commerce Commission on January 30, 1942, and became effective February 15, 1942. Service Order No. 68, promulgated under the authority granted by the provisions of the Interstate Commerce Act, 49 U. S. C. 1 (15), provided as follows:

It appearing, That, due to the existing state of war, an emergency exists which, in the opinion of the Commission, requires immediate action to prevent shortage of railroad equipment and congestion of traffic; and

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136 C. Cls.

It further appearing, That the provisions contained in Rules 24 and 34 of Consolidated Freight Classification No. 14, as amended, and other tariffs containing similar provisions in respect of the furnishing, substitution, and use of multiple cars for single shipments, supject to carload rates, result in wasteful car service in interstate commerce; and

It also appearing, That such misuse and wasteful use of railroad equipment is detrimental to the public interest and to the prosecution of the war:

Therefore, in respect to interstate commerce:

It is ordered,

1. That the operation of Rule 24 of Consolidated Freight Classification No. 14, as amended, be, and it is hereby, suspended.

2. That the operation of Rule 34 of Consolidated Freight Classification No. 14, as amended, in so far as it permits railway freight cars to be used for the shipment of carload freight otherwise than subject to the carload minimum weight for each car used be, and it is hereby, suspended: Provided, That this paragraph shall not be deemed to apply to or affect those portions of Rule 34 which provide carload minimum weights graduated according to car length or capacity.

3. That the operation of all provisions in all other tariffs filed by common carriers by railroad with the Commission which, in like manner, as or in modification or extension of, Rule 24 and of that portion of Rule 34 herein suspended, permit railway freight cars (whether such cars are loaded by shipper or carrier) to be used for the shipment of carload freight, including livestock, otherwise than subject to the established carload minimum weight for each car used, be, and they are hereby, suspended: Provided, That this paragraph shall not be deemed to apply to or affect the provisions of Rule 29 of Consolidated Freight Classification No. 14, as amended, or any similar provisions in other tariffs, relating to minimum weights for carload shipments of articles which by reason of their length require two or more open cars for their transportation.

4. That all outstanding orders of the Commission, in so far as they conflict with the provisions of this order, be, and they are hereby, suspended.

5. That this order shall become effective February 15, 1942, and shall remain in force until further order of the Commission; that a copy thereof shall be served upon each common carrier by railroad subject to the Interstate Commerce Act; and that each of said railroads, on

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or before the effective date hereof, and upon one day's notice to the Commission and to the public, in substantial accordance with the provisions of Rule 9 (k) of the Commission's Tariff Circular No. 20, shall publish, file, and post a supplement to each of its tariffs affected hereby, announcing the suspension of any of the provisions therein.

6. That notice of this order be given to the general public by depositing a copy thereof in the office of the Secretary of the Commission at Washington, D. C.

4. On or prior to June 5, 1944, the Government ordered from the W. C. Nabors Company of Mansfield, Louisiana, certain stockroom trailers and spare parts, and supplied that company with the necessary Government bills of lading for use in shipping the trailers. The Nabors Company ordered from the Mansfield Railroad and Transportation Company five flat cars, each to be 40 feet long, to carry the trailers from Mansfield, Louisiana, consigned to the Depot Quartermaster, Camp Lejeune, North Carolina, near Jacksonville, North Carolina. The shipping charges were to be billed to the office of the Quartermaster General of the Marine Corps. The shipper's authorized agent or employee was declared to be the W. C. Nabors Company.

The following information appeared on the Government bills of lading under which the shipments were made:

5. The Mansfield Railroad and Transportation Company, the initial carrier, the Texas & Pacific Railway Co., which furnished the cars and moved them over its route toward the destination, and plaintiff, which was the terminal carrier, were all participating carriers in the classifications and tariffs applicable to the shipment.

The shipments involved in this proceeding originated at Mansfield, Louisiana, and moved in June 1944 to Jacksonville, North Carolina, on 42-foot flat cars furnished by the

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136 C. Cls.

carrier, in lieu of 40-foot cars ordered by the shipper. All of the shipments, which consisted of stockroom trailers and spare parts, weighed less than the applicable carload minimum weight provided for such commodities in Item 43535 of Western Classification No. 71, also known as CFC No. 16, which minimum weight was 20,000 pounds subject to Rule 34. Southwestern Lines' Tariff No. 254-B, which published the rates between South Mansfield, Louisiana, and Jacksonville, North Carolina, states on its face that it is governed, except as otherwise provided therein, by Western Classification No. 70, R. C. Fyfe's ICC No. 28 and by exceptions thereto, Southwestern Lines' Tariff No. 173-P, J. R. Peel's ICC No. 3526, and Western Trunk Line Tariff No. 386-D, J. R. Peel's ICC No. 3519, and supplements to or successive issues of these publications. Western Classification No. 71 canceled No. 70 and was in effect at the time these shipments moved. Southwestern Lines' Tariff No. 173-P and Western Trunk Line Tariff No. 386-D are not involved here. The title page of Southwestern Lines' Tariff No. 254-B provides "This tariff is subject to the provisions of Tariff No. S. O. 68, Agent L. E. Kipp's ICC No. A-3391, MF ICC No. A 126, supplements thereto or successive issues thereof."

6. Rule 34 of the Consolidated Freight Classification No. 16, Western Classification No. 71, had been in effect for many years prior to February 15, 1942, at which time Interstate Commerce Commission Service Order No. 68, issued January 30, 1942, became effective. Sections 1, 2, 3, and 4 of Rule 34 apply to closed or box cars, while Sections 5 to 8 relate to open cars. Pertinent provisions of Rule 34 as set out in CFC No. 16, which was in effect at time of movement here involved, are:

SECTION 5. When articles shown in the Classification, exceptions thereto or in tariffs governed thereby, subject to this Rule by specific reference to the number thereof, or to the letter "R," are loaded in open cars 41 feet 6 inches or less in length, they shall be charged at minimum CL weights specified therefor in separate descriptions of articles. When such articles are loaded in open cars exceeding 41 feet 6 inches in length, mini

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mum CL weights to be charged shall be as provided in Section 8. Weight in excess of minimum weight provided for in this Rule must be charged for.

SECTION 6. (a) If carrier is unable to furnish open car of length ordered, and furnishes longer car, minimum weight shall be that fixed for car furnished, except that if articles are of such length as could have been loaded on car of length ordered, minimum weight shall be that fixed for car ordered.

Notation must be made by agent on Bill of Lading and Waybill:

Car

ft. in length ordered by shipper and ft. in length furnished by carrier under Rule 34 of Consolidated Classification.

car

SECTION 7. Except when furnished by carrier in place of shorter open car ordered, if an open car over 36 feet 6 inches in length is used by shipper for loading articles subject to Rule 34, without previous order having been placed by shipper with carrier for car of such size, minimum weight shall be that fixed for car used.

SECTION 8. (a) Table showing minimum CL weights applicable on articles made subject to Rule 34, in open cars, see Note 3.

Under Section 8 is a tabulation of various minimum weights which, insofar as here applicable, provides that when the minimum carload weight provided in the Classification for the articles shipped is 20,000 pounds (as in this case) and the open car used was over 41 feet 6 inches and not over 42 feet 6 inches in length (in this case), the minimum weight shall be 24,400 pounds, which was the weight applied by plaintiff in billing the defendant for these freight charges. Under Section 8 appeared Note 3, which read:

When a shipper orders a car of a specified length within and including the minimum and maximum lengths for which the same minimum CL weight is provided in Section 8, the furnishing by a carrier of a car of any length between and including such minimum and maximum lengths will be a fulfillment of shipper's order. The above-quoted Sections 6 and 7 were preceded by a symbol consisting of a circled letter "s", which was explained in the same tariff by the following statement: