dissenting:
I dissent from the majority’s holding that the Docks Department grain storage tariff unambiguously charges Bunge at the rate of %<p per bushel per day for the days of storage after the effective date of the tariff. The tariff establishes an escalating rate schedule that increases according to the length of storage. The majority view the point of ambiguity as being from what time the length of storage is measured. I agree that the tariff, when applicable, unambiguously requires that the length of storage be measured from the expiration of the initial ten days of free time. Neither the parties nor the majority have come to grips with the principal ambiguity in the tariff, however, which is whether the rates apply at all to one such as Bunge whose term of storage began before the effective date of the tariff.
On its face the tariff is plain enough: after the expiration of ten days of free time storage charges are assessed according to the escalated schedule set forth. The effective date of the tariff is May 6, 1978. The textual ambiguity is whether, under this effective date provision, storage terms already in progress are governed by the new tariff. There are two plausible meanings of the instruction that this tariff takes effect on May 6, 1978. The first is that the tariff controls only storage terms that begin after May 6, in other words, that the effective date governs the “free time” language as well as the rate schedule language. Under this interpretation, which gives only prospective effect to the tariff, Bunge would not be subject to the new tariff at all because its free time (which marks the start of its storage) occurred before the effective date. The second plausible reading is that this tariff governs any assessment of storage fees that occurs after the effective date even though the term of storage might have transpired in part be*68fore the effective date. Under this retroactive interpretation Bunge would be subject to the increased rates not only for days of storage after May 6 but also for days of storage prior to May 6.
Confusion has arisen in this case because neither of these two interpretations of the tariff and its effective date has been proffered by the parties; rather, each asserts an intermediate interpretation. The Docks Department attempts to apply the new rates to only that portion of Bunge’s storage term that extended beyond the effective date but foregoes any attempt to collect the increased rates for days of storage prior to the effective date. Bunge argues that the new schedule should apply to it but only by running anew beginning on the effective date. Neither of these applications that the parties advocate is called for by the tariff’s language. The Docks Department is free to collect less than it may be due, and Bunge is free to concede more than it owes, but the court should not be led astray into adopting an initial construction of the tariff that is not suggested by its language.1
It might be that once the intended application of the tariff is initially ascertained then that application should be modified to avoid unfairness or unallowable retroactivity. Thus, the parties’ interpretations of the tariff are not necessarily unreasonable in a broader sense; they simply are not suggested by the language of the tariff itself. ' But before deciding which, if either, of the intermediate interpretations advocated by the parties is correct, the principal ambiguity must be resolved.2
Resolution of this principal ambiguity should be done initially by the district court because its prior decision was rendered without a clear view of this ambiguity and without the parties having either briefed or argued it. I would, therefore, vacate the decision of the district court and remand for a hearing on the proper construction of the tariff.
. These tactical efforts by each party to obtain a safe half loaf neither bind nor limit this court, nor should they hypnotize it either. See n.2, infra.
. We are not precluded from adopting an interpretation of the tariff not proffered by the parties. The larger issue of ambiguity has been raised, and in viewing that issue we are not constrained by the parties’ respective views of what the ambiguous document means when construed.