dissenting:
I would require the Government to pay the domestic rate for failure to give the notice required by ARE Section 22 Quotation No. 265-A. The Government should not be allowed to benefit from its failure to fully comply with the explicit and unambiguous terms of the agreement. In order to receive the benefit of the export rates the Government was required to give the 60-day notice of export. This it failed to do. We find no provision which says that because the shipments were actually exported, and this fact known to the carrier, the Government is relieved of the requirement of notice. Having failed in this respect, I believe the Government has forfeited its right to the lower rates.
*624FINDINGS OF FACT
Tbe court, having considered tlxe evidence, the briefs and argument of counsel, and the report of Trial Commissioner Wilson Cowen, makes the following findings of fact:
1. The plaintiff, a corporation of the State of Utah, is a common carrier by railroad over its own lines and in connection with other carriers.
2. During the year 1950, plaintiff performed transportation services for the Government by transporting various commodities on Government bills of lading from Arsenal and Ogden, Utah, to Seattle, Washington. The bills of lading show on their face that the shipments were intended for export and were consigned to the Port Transportation Officer, Seattle Port of Embarkation, Seattle, Washington, the inland rail destination. Each bill of lading was receipted for and accomplished by the Port Transportation Officer.
With respect to such shipments, the sole issue is whether the transportation charges should be assessed on the basis of the domestic rates, as plaintiff contends, or whether such charges should be assessed at the export rates provided in A. A. R. Section 22 Quotation No. 265-A and amendments thereto, as defendant urges.
3. On February 10,1944, plaintiff and other carriers, which were parties to TCFB Export Tariff 29-series, offered to the War Department and other Government agencies, A. A. R. Section 22 Quotation No. 265, quoting the export rates published in TCFB Export Tariff 29-series (without land-grant deductions) on Government traffic to Pacific coast ports for export, without requiring compliance by the Government with items 235, 270, 275 and 290 of the said tariff. The quotation applied retroactively to Government traffic shipped from points of origin named in the tariff on or after January 1, 1942. This quotation was formally accepted by the War Department through its authorized representative, as well as by other Government agencies. On August 29, 1944, A. A. R. Section 22 Quotation No. 265-A was issued, cancelling A. A. R. Section 22 Quotation No. 265 and re*625mained in effect with, amendments during the period of the shipments herein.
The quotation provided in pertinent part as follows:
For and on behalf of carriers by railroad parties to Trans-Continental Freight Bureau Westbound Tariffs hereinafter referred to, I am authorized to and do hereby quote and offer to the United States Government, pursuant to Section 22 of the Interstate Commerce Act, the transportation services hereinafter described for the charges and under and subject to the terms and conditions herein stated.
Item 1
Rates currently in effect from time to time in Transcontinental Freight Bureau Export Tariff 29-series (not subject to land-grant deduction) will be applied oy the carriers on traffic shipped by or for account of the various Departments, Bureaus and Agencies of the United States Government, and on which the United States Government assumes the freight charges, moving from origins and to United States Pacific Coast Porte named in said tariff and forwarded overseas from such ports to the destination territory named in Trans-Continental Freight Bureau Tariff 29-series but without requiring compliance upon the part of the Government with Items Nos. 235? 270, 275 and 290 of said tariff. Carriers will accord like treatment to Government traffic shipped from said points of origin on and after J anuary 1,1942.
* He * * H:
Item 6, as amended by Amendments Nos. 3, 4, 5 and 6, is amended further to read:
Item 6
An authorized Government representative will furnish the Pacific Coast Terminal rail carriers within sixty (60) days (See Notes 1 and 2) after exportation a certificate to the effect that the traffic was loaded for a point within the destination area covered by Transcontinental Freight Bureau Tariff 29-series and tender and acceptance or such certificate will be considered final by both Government and carrier as to destination. Said certificate should be sufficiently specific to enable Accounting Departments to determine what rate should be applied in those instances where different rates are • named in the export tariff conditioned on the particular country or countries of destination, and should show *626separately tonnage loaded at ports provided for in Items 1, 2, and 4, respectively, and in addition name of the port through, which actual exportation was made.
Note 1.
(a) The sixty (60) day limitation for certification will not apply to shipments which move frompoints of origin prior to March 1, 1944. Certificates covering such shipments must be furnished Pacific Coast Terminal rail carriers not later than June 30, 1946.
Note 2.
(b) Certificates covering shipments which move from point of origin in period March 1, 1944, to May 31, 1945, inclusive, must be furnished Pacific Coast Terminal rail carriers not later than December 31, 1945. When security regulations or other unavoidable conditions prevent filing certificates within the limitation of sixty (60) days, carriers will accept such certificates if filed within a period of not in excess of fifteen (15) additional days.
Item 7
Preservation of the exact identity of each inbound shipment is not required, but tonnage exported must be of the same quantity and character of traffic as handled into the depot or activity in the car specified in the certification of exportation.
4. On April 4,1944, Mr. F. L. McCaffrey of the Southern Pacific Company, wrote certain Government agencies requesting confirmation of the following agreement relative to the handling of shipments under A. A. B. Section 22 Quotation No. 265:
(1) Government bills of lading covering export traffic will be marked “Export” and promptly surrendered to carriers’ freight agents at Pacific Coast ports.
(2) Carriers will prepare bills initially for traffic identified as export on the basis of rates provided in Section 22 Quotation 265, with appropriate notation that bills will be_ subject to correction if export certificate is not furnished within required time, with the understanding that the Government will pay these bills promptly. If certificate of exportation is not furnished within the time specified, supplemental bill will be rendered against the Government for the difference between amount initially billed and charges at rates under do*627mestic tariffs, or other A. A. R. Section 22 Quotations. Col. Williamson will handle with Mr. E. H. Bunnell, Vice President, Finance, Accounting, Taxation and Valuation Department, A. A. R., the question of filing blanket agreement to cover this.
(3) Export certificates will be surrendered by Governmental agencies to local railroad agents on sixtieth day after exportation. Form similar to Treasury Department LL-216 is to be adopted by all branches of the Government. Certificates will carry initials and numbers of bill of lading, date surrendered, and car initials and number. Carriers will decline to accept certificates, as not valid, if the initials and number of the Government bill of lading are not shown.
(4) Local Governmental agencies will surrender to local railroad agents certificates on back business and the carriers will make refunds on receipt of certificates. Certificates will conform to Item 3.
(5) Claims for amounts due Government on shipments moving on commercial prepaid bills of lading are to be filed with the initial line and will include the 30 allowance for terminal charges, if properly due.
5. After the shipments in controversy were delivered by plaintiff to defendant’s Port Transportation Officer, the shipments were thereafter loaded on ocean steamships for overseas destination. The defendant did not issue or furnish to plaintiff any export certificates with respect to such shipments as required by item 6 of A. A. E. Section 22 Quotation No. 265-A.
6. Plaintiff originally billed the Government and was paid freight charges based on the export rates provided in A. A. E. Section 22 Quotation No. 265-A and amendments thereto.
7. Within 2 years after the transportation services had been performed, plaintiff filed supplemental bills predicated on the domestic rates. Since no export certificates had been furnished, plaintiff claimed that the export rate was not applicable. The supplemental billing was made pursuant to the procedure described in finding 4.
8. These supplemental bills were settled by the Government on the basis that the export rate was applicable under the terms and conditions of Trans-Continental Freight Bureau Tariff 29-series and the port allowance of three cents per hundred pounds was refunded to plaintiff by supplemental payments.
*6289. In view of this court’s decision in Union Pacific Railroad Company v. United States, 182 C. Cls. 213, defendant in this action contends that the applicable rates on the shipments in dispute are the export rates provided in A. A. K. Section Quotation 22 No. 265-A and amendments thereto.
10. In addition to the shipments in issue, the petition covers nine bills of lading on which there is no controversy and with respect to which it has been agreed that there is due plaintiff the net sum of $245.65.
11. If it is held that the charges on the shipments in issue should be based upon the domestic rates, it has been stipulated that plaintiff is entitled to recover the sum of $13,881.92 thereon, plus $245.65 on the shipments not in dispute, or a total of $14,127.57. The parties have also agreed that if it is held that the transportation charges on the shipments in controversy should be based on the export rates provided for in A. A. E. Section 22 Quotation No. 265-A, the defendant is entitled to recover thereon the sum of $1,472.66, less the $245.65 referred to in the preceding finding, or a net amount of $1,227.01.
CONCLUSION OF LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and the petition is therefore dismissed. The court further concludes that the defendant is entitled to recover on its counterclaim the sum of $1,227.01. It is therefore adjudged and ordered that the defendant recover of and from the plaintiff the sum of one thousand two hundred twenty-seven dollars and one cent ($1,227.01).