(dissenting).
I concur in the opinion only insofar as it approves an increase in demurrage charges for the first, second and third demurrage levels. I would remand the matter to the I.C.C., instructing it to take additional evidence at the earliest possible date to determine whether the increased demurrage charges for the first four detention days after the expiration of free time will, in fact, significantly increase the availability of box cars to shippers. I would require the railroads to account for all sums collected from this date forward for the period in question, and to deposit all funds thus collected in an escrow account. Finally, I would have this Court retain jurisdiction to insure that an expedited appeal could be taken from any new order of the I.C.C.
As I read this record, there is simply no showing that a one hundred per cent increase in demurrage charges for the first four detention days will be likely to increase the availability of box cars to shippers. On the contrary, the evidence indicates that the railroads have a major responsibility for the delays during the four-day detention period.
The decision of the Commission appears to be based on the assumption that if it costs a shipper more to hold a box car, it will release the cars quicker, and that the railroads will promptly make these cars available to shippers who need them. The Commission cites a 1966-1967 railroad-sponsored study as supporting this assumption. The study showed that when demurrage rates for the four-day period were doubled for a two-year period, 19.42% of box cars were retained beyond the free period; but it also showed that when the rates were reduced to the old levels, 21.39% of the box ears were retained beyond the free period. This is hardly a sufficient showing to justify a doubling of demur-rage rates. Moreover, the study was based on an inadequate sample. It failed to take into account all relevant factors and failed to show that anyone but the railroads benefited from the increased rates. Most importantly, the study did not show that more box cars were available to shippers as a result of the increase, or that the flow of products from farms and manufacturers to markets improved as a result of the doubled demurrage charge.
The railroads concede that they have not proved that more box cars were available to shippers during the two years that higher demurrage rates were in effect, and that there is no showing that more freight was moved with the available cars. However, they argue that they are in the business of furnishing box cars to shippers, and that if they have more cars available,, they will do what is best for their business and make the additional cars promptly available to shippers. There is logic to the argument, but it is based on the premise that all railroads are, in fact, dedicated to providing better service to their shippers. I am unwilling to accept that premise. The facts of the matter are that: (1) some railroads provide erratic and unreliable service and don’t seem to be organized to improve that service; (2) some railroads are more interested in abandoning lines than they are in improving service; and (3) some railroads use available funds to diversify into non-railroad operations. To these railroads, the increased demurrage charges may be a windfall.
The I.C.C. should be asked to require the railroads to prove that there has been, and will continue to be, a direct relationship between higher demurrage rates for the four-day period and the number of box cars actually available to shippers at loading and unloading points, and to further establish that the *1286railroads can and will move the additional box cars promptly after they are loaded or unloaded. Unless we require the I.C.C. to take this kind of hard-nosed approach, the railroads will receive increased revenue, but wheat and corn will continue to rot in the fields, oil and gas will not be delivered to users, merchandise will not be moved to distributors, and our transportation system will continue to deteriorate.
On rehearing, the parties would have had more than two years experience to draw on. See, United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972). This experience could be analyzed thoroughly to determine whether the increased demurrage rates for the four-day period have, in fact, made more box cars available to shippers, and whether more freight has been moved in the available cars. If the evidence showed that the increased rates have had and will continue to have these effects, the I.C.C. could make findings which we would be required to approve. If not, the I.C.C. would have to find other ways of ending the “box car shortage.”