(dissenting).
With deference to the views of my colleagues, I am constrained to dissent. In the simplest terms in which I am able to state the issue it is: In 1951 irregular air carriers were authorized by action of the C.A.B. to engage in the carriage of military personnel by contracting for charter flights upon the filing of tariffs, the relevant portions of which are set out in footnotes 7 through 13 of the opinion ; the military services were using not only air, but also rail and bus transportation; in order to determine which type of transportation to use the military service needed to know the cost of the transportation, even though the cost alone was not always the sole deciding factor;1 in order to ascertain the cost of a proposed movement the local command requested a bid from a carrier such as the appellee; this bid designated a specified aircraft, showed the place where the passengers were to be picked up, the place to which they were to be flown and also the place where the aircraft was to be based, before flying to the point of pick-up of the passengers; it also prescribed the point to which it was to be returned after completing carriage of passengers; if the bid was accepted the plane was flown to the point of pick-up, the passengers were carried, and the plane was returned to the designated point of rest. The two trips flown without passengers were known as “front” and “rear” ferry flights.
Out of the many trips flown (known as CAM’s) a number involved ferry flights from points more distant from the point of pick-up than those specified in the bid. The government contends that the rate of pay provided for “ferry miles” as prescribed in the tariff should apply only to the agreed itinerary as stated in the bid, whereas the carrier claims it is entitled to have the rate of pay per mile for the miles actually flown without reference to the points of departure named in the bid.
I agree that the contract of carriage controls, and that the understanding or notice to the agents or officers of the parties is immaterial to the proper determination of the issue before us. The point at which I depart from my colleagues is that I think it clear that the contract of carriage calls for application of the tariff rate to the number of miles between the points between which the parties agreed, the chartered plane was to fly rather than between those points between which it did actually fly, if the latter distance was greater.
Of course, no tariff has any life as a contract until it is called into being by a shipper ordering transportation from a carrier. Moreover, I know of no rule of law that prevents a shipper from agreeing with a charter carrier as to what the point of origin, intermediate points and point of destination shall be. For carriers other than operators of chartered transport the cost of the carriage can readily be determined by reference to filed tariffs between fixed points. For a carrier which operates charter service, too, the shipper can readily ascertain the cost of the transportation per mile by reference to the *842tariff, which states the charge per mile for “live miles” and the lower cost per mile for “ferry miles.” But in the case of a charter carrier the shipper cannot know that a plane will be available to it at any given point. This can be known only if the shipper agrees that the chartered plane will be based at a given point. Therefore, the only unknown quantity for which a bid is of any value at all is: where will the plane be based before flying to the point of pick-up? This is the only element of cost that the using service cannot determine by the simple matter of multiplying the live miles by the known distance between pick-up and destination. Since the record discloses that the mode of transportation used by the military services must be determined by considering the comparative costs of (Competing forms of transportation, we «cannot, it seems to me, hold that the term 'of the contract which alone furnished the element by which cost could be computed is void and of no effect unless such result is demanded by some positive command of statute or decisional law. It is my opinion that there is no law requiring that we hold that the term of the contract prescribing the point where the chartered aircraft is based is void and of no effect merely upon a showing that the aircraft was actually flown from some different point to pick up its passengers.
The opinion of the majority is posited on the proposition that the provisions of the tariff are absolutely binding, and they may not be departed from. Certainly that is true as to those matters which the tariff is designed to cover. I have never known, however, of a tariff being designed to determine the terminal points of a shipment to which its rate schedules will then apply. The opinion here finds •such determination of terminal points in the definition of “ferry miles,” footnote 10, which defines ferry miles thus: '“means miles which Carrier is required to operate an aircraft without payload between points where it is based by the Carrier and the origin of a charter flight and between the destination of a charter flight and the point to which the aircraft is to be returned for the next operation by the carrier.”
It seems clear to me that the definition clause was not intended to answer the substantive question of what were the points of origin and destination of the charter at all, but was rather intended to distinguish between “dead head miles” and “live carriage miles” to which different rates apply. Nevertheless, the government does not urge this point, and I assume, for the purpose of expressing the views here, that this definition is controlling. It becomes necessary then to construe it. The opinion of the Court says: “The tariff is self-sufficient and needs no extraneous agreement on standards.” It seems to me that this is meaningless or that it is patently incorrect, because the entire formula of rates is to be applied, as to ferry miles, on the number of “miles which Carrier is required to operate [the] aircraft without payload between points where it is based by the Carrier and the origin of a charter flight.” (Emphasis added.) The opinion itself recognizes the need to go outside the language of the tariff to ascertain where the aircraft is based. It approved the trial court’s determination that in effect the aircraft were based wherever they happened to be immediately preceding their use for a particular CAM so long as they did not get there as a result of a commercial rather than military flight. It also approved the court’s finding that the flight from such place was “required” unless it was done for maintenance, for carriage of other passengers, or on a dog-leg route.
It seems to me that there is a fundamental error in the Court’s construction of this definition paragraph to fix points of origin and destination. A plane is not necessarily based wherever it happens to be at rest. Where it is based is a matter of intent on the part of its owners, and it seems to me that what the bid did here, and what it was intended to do, was to fix by agreement where the specified aircraft was to be based prior to its being dispatched for the live mileage. *843The opinion recognizes the necessity to go outside the tariff to find where the plane was based. It simply assumes that it was based wherever it was found. I think it was based where the parties agreed it was based.
Thus, within the terms of the bid, which when accepted, called the tariff into life, and the tariff itself, all the terms necessary to determine the cost of carriage are spelled out. The parties agreed that as to a particular CAM (to use the illustration in footnote 5) the troops were to be carried from San Antonio to Memphis, and that the plane was to be based at El Paso. The using service could then compute the cost for charter miles from San Antonio to Memphis and the ferry miles from El Paso to San Antonio. The bid would thus have some meaning. It would contain all the elements necessary for the using service to compare the cost with competing types of transportation. Now, where it develops that the designated aircraft for the CAM was actually in Albuquerque before being flown to San Antonio, this does not, it seems to me, change the fact that it was based in El Paso as stated in the bid. In other words, I think the answer to the question “where is the aircraft’s base from which point the carrier is required to ferry it ?” is found by reference to the parties’ contract touching on that identical point rather than by asking, “where was the aircraft flown from to pick up the passengers at San Antonio?”
There are several circumstances in this case and in transportation law in general that, it seems to me, strongly support this construction. The first is the introductory clause of the tariff itself:
“Application of the Tariff:
“This tariff is published and filed * * * on behalf of the following participating carriers * * * for the provision of air Transportation under [C.A.B.] Order No. E- 516G, dated March 21, 1951, pursuant to contracts with departments of the military establishment and of uniformed military personnel traveling at their own expense to or from miltary bases designated by departments of the military establishment.” (Emphasis added.)
Thus, it is clear that the tariff clearly assumes, as it must, the making of a contract of carriage. Such a contract must define the service to be performed. It sets out in the definition section next discussed the yardstick to which the tariff rates for the two defined types of ferry flights are to be applied.
The next such circumstance is the definition clause which describes “charterer” as follows.2
“Charterer: means a person, group of persons, firm, partnership, association, corporation or body politic acquiring,
“[1] at a fixed charge,
“[2] the use of an aircraft operated by Carrier for
“[3] the transportation of persons
“[4] from a specified origin to a specified destination or
“[5] for a particular itinerary,
“[6] agreed upon in advance.”
Note: brackets inserted:
This clause makes clear that what is dealt with here is a shipper (the government) that has acquired at a fixed charge an aircraft for transportation from a specified origin to a specified destination or for a particular itineraryP agreed upon in advance. Practically every term of the definition emphasizes the idea of an agreed definite understanding as to the origin and destination of the flight and the charge to be made. This strongly supports my understanding that the “ferry miles” clause is to be construed to refer to a base already-agreed on.
*844The third circumstance is the general proposition, in my opinion too lightly dismissed by the majority, that the purpose of a tariff is to let the shipper know what services a carrier will furnish under certain conditions and at what price. Union Wire Rope Corp. v. Atchison, T. & S. F. Ry. Co., 8 Cir., 66 F.2d 965, 966. This Court has said that tariffs “must be expressed in clear and plain terms, so that those dealing with and governed by them may understand them and act advisedly.” Atlantic Coast Line R. Co. v. Atlantic Bridge Co., 5 Cir., 57 F.2d 654, 655. Is it possible for any one to say here that a shipper would be expected to find the point of origin of a charter flight fixed by the language of a definition section when the parties have already attempted to fix it by the contract calling the tariff into life? Also, the Court of Appeals for the Ninth Circuit said of tariffs generally:
“It is a general principle of transportation law that tariff rates must be determinable at the time the shipment is made.” United States v. Spokane, Portland & Seattle Ry. Co., 9 Cir., 261 F.2d 681, 684.
In rejecting the government’s contention that tariff rates must be determinable at the time the shipment is made, the majority opinion speaks of it as though it were a contention for “a requirement of preshipment calculation of exact cost.” Of course, the government makes no such contention. It merely argues, and I think correctly, that the formula by which the charge can be figured and the yardstick to which it is to be applied must be contained in the tariff or be agreed to in advance of shipment. Here, unless the specified points of departure are taken as agreed to in the bid, the one essential fact permitting such computation is entirely missing.
It seems to me to be clear that nothing in the tariff had the effect of changing . the contractual terms designating the base from which the ferry mileage was to be computed. It seems plain that if the definition section is to be looked to for the purpose of ascertaining what mileage was ferry mileage, it prescribed it as between the place where the parties had agreed the plane was based and the origin of the charter miles rather than, as the Court has decided, between whatever place the plane was found and such place of origin.
The majority criticizes the government for contending that the bid base controls if the plane traveled in excess of that mileage but that the actual miles control if the plane traveled less than the distance between the bid base and place of origin of the charter flight. I think this is strictly in line with general transportation law which prohibits a carrier from collecting for services not actually performed. Moreover, both the bid contract and the definition clause provided for this treatment. The bid contract provided “if the agreed upon ferry mileage can be eliminated or reduced by rescheduling the assigned equipment in regular or chartered services, the benefit of such reduction in ferry miles flown shall be credited back to the [government].” It is against this term of the bid contract that we read the language of the definition section: “miles which Carrier is required to operate an aircraft without payload between points where it is based, etc.” If the carrier is not required to operate the aircraft as many miles as the bid contract specifies, the tariff definition itself excludes the excess miles. Thus it is, that the government contends, correctly I think, that this is a contract that, coupled with the filed tariff, prescribes a maximum charge for the charter service.
That this is not deemed either economically unfair or morally or ethically improper is indicated by the fact that the C.A.B. at the instance of both the carrier and the government has, by the granting of an exemption, authorized charter contracts, spelling out this precise arrangement. Civil Aeronautics Board, Order No. E-13158, Docket No. 7186.9916, dated November 14, 1958.
I think, therefore, that this obligation of the government for charter charges was fixed by the tariff based on the stated base of the aircraft in each CAM less such ámount as represented mileage not *845actually flown between the specified base and the place of origin of the charter flight. What has been said relating to the front ferry miles should, of course, be applied equally to rear ferry miles. This is: the mileage payable to the specified point of rest is the maximum for computing the charter cost, the actual mileage flown, if less than that, to be the actual basis of the charge.
We are told by the government that the method of computation, which I think is called for, was acquiesced in by the carriers for the first two years of these operations. 33 Comp.Gen. 483,487. Such conduct, of course, would not be effective to change the contract of carriage, since one of the significant things about tariffs, agreed to by all members of the court, is that the parties cannot by agreement change the filed tariff. It is significant, however, I think, when we are faced with a problem of construing the contract, since the construction placed upon it by the parties is somewhat persuasive as to its proper construction.
I would reverse the judgment and remand for a finding of the sum due the parties in accordance with the legal principles enunciated here.
. It is not significant that cost alone did not always control. It is undisputed that cost was a factor in making the comparison, and if it was a factor, it had to be known quite as much as if it were always the controlling factor.
. As I have previously said, I doubt seriously whether these substantive matters were intended to be controlled by the sections defining terms of the contract. However, if we assume the definition sections are to be given such effect, then all of them must be considered.