I conclude that the decision of our Court of Appeals in United States v. Interstate Commerce Commission1 is controlling here and requires reversal of the Commission’s order dismissing the complaint of the United States. The United States alleged, in pertinent part: under the export tariffs involved here, the railroads were obligated to furnish wharfage and handling services; when the railroads declined to perform these services on traffic moving over Army Base Piers at Norfolk, Virginia, the Army itself did so; ■ and the United States was therefore entitled to an allowance for what the railroads would have had to pay for these services. Refusal of the railroads ' to make such allowance, says the United States, subjected it to the payment of unjust and unreasonable rates in violation of the Interstate Commerce Act.2
Like Chairman Alldredge of the Interstate Commerce Commission, who dissented from the order we now review, I, too, “am unable to discover any substantial differences” between the tariffs and facts of record here, and those covered by the Court of Appeals’ decision. There it was pointed out that “even assuming that performance by the carriers would not have been ‘practical’ — that no arrangement satisfactory to the Army could have been worked out — the carriers’ inability to perform would not of itself release them from their tariff obligation.” 3 That obligation includes wharf-age and handling. Here, as there, the Army’s “action, taken in an emergency to assure a smooth flow of war materiel, [did not] increase the cost to the railroads or inconvenience them in any way. Moreover, had [the public wharfinger continued to act on behalf of the railroads], the Army could still have controlled the piers and the shipments passing over them by the use of military priorities and routings. See Interstate Commerce Act § 6(8), as amended, 49 *37U.S.C.A. § 6(8). * *' * All'the Government now asks is that the railroads pay it for wharfage and handling what they would have paid the [public wharfinger for such services] * * *.”4
. 1952, 91 U.S.App.D.C. 178, 198 F.2d 958.
. 24 Stat. 379 (1887), as amended, 49 U.S.C.A. §§ 1(5), 1(6), 2, 3(1), 6(7).
. 91 U.S.App.D.C. at page 190, 198 F.2d at page 969.
. 91 U.S.App.D.O. at page 191, 198 F.2d at pages 970-971.