(dissenting).
The division of opinion already existing as to the true meaning of the words “loading capacity” in Rule 34 indicates that the language itself is reasonably susceptible of more than one construction. I think the proper interpretation is that contended for by appellant, because such interpretation is reasonably consistent both with the language of the rule and with the purposes therein attempted to be subserved.
By its terms, Sec. 3(a) of the rule applies only when a shipper has ordered a car of a certain length and, because such car was unavailable, has been furnished one that is longer. The reason for the rule is obvious. It would be unfair to the shipper if his freight charges were increased as a result of the carrier’s lack of an adequate present supply of standard equipment, for this would penalize the shipper to the benefit of the carrier for a situation occasioned by circumstances wholly within the control of the carrier. It would be no less unfair to permit the shipper to secure an advantage in freight rates by allowing him to load the car furnished beyond the capacity of the car ordered at the rate applicable to the car ordered. One of the bases of administrative regulation of tariffs is the prevention of discrimination. With deference, I think the opinion of the majority opens wide the door to potentially preferential practices.
The freight needs of the shipper are best known to the shipper, and it is his responsibility to order such car as will most economically serve his requirements. If the shipment exceeds the capacity of a 40-' foot car, a larger car should be ordered in the first instance, in which event the minimum for the car ordered is charged. If a larger car is furnished and the shipper decides to ship therein freight in excess of the maximum capacity of the car ordered, he should pay rates calculated upon the-same basis as if the car furnished had been originally ordered.
The Interstate Commerce Commission repeatedly has construed the rule to authorize rates based upon the 40-foot minimum only if the freight load does not exceed the capacity of a 40-foot car. This construction is not binding upon this court, but it is entitled to serious consideration. I think this construction is in harmony with the letter and the spirit of the rule, and should be applied here. I respectfully dissent.