in the main have the storage or loading facilities required for such group loading. The result was to prevent savings in switching costs, and to increase the time the cars were in the possession of the shippers, thereby adding a cost in terms of delay in car utilization -- a cost that, incidentally, falls upon other rail carriers and other shippers as well.
One shipper only testified that delays in loading were caused by the plaintiffs' failure to supply cars, that its storage facilities were adequate to keep the different grades of clay separate and continuously ready for loading, and that, if cars were provided, 10-car units could be loaded in one day. This testimony, however, was weakened by admissions that this shipper, being by far the largest, was not typical of the other shippers in respect of storage facilities and flexible capacity for volume handling, and that even it frequently interrupted the export loadings in order to fill domestic orders as promptly as possible.
It is also pressed upon us now that savings in clerical costs were foregone because the plaintiffs used separate waybills for each car. This, so we are told, resulted from the plaintiffs having supplied too many defective cars. The record does contain a statement by a carrier witness that separate waybills were a guard against bad-order cars. But there was also testimony to the effect that bad-orders were due not only to the age of the equipment (which assertedly did not exceed ordinary standards of utilization and wear and tear), but also by the nature of the clay itself and the tendency of some shippers to overload the cars. The highly efficient, but extremely scarce, covered hopper cars had not been used for clay because of the long periods the cars were detained at the ports. It was represented, however, that 200 new such cars were being purchased by plaintiff Southern Railway for use in the clay traffic.
There were, of course, no findings made by the Commission with respect to any of these matters; and, indeed, on this markedly imprecise state of the record, findings of any real value would have been difficult to make. The fact appears to be that the parties did not try the case before the examiner by reference to the theory on which the Commission later decided it, and which the Government and the protestants urge upon us now. We are not to be understood as saying that under no circumstances could considerations of this kind be relevant with respect to the termination of a multicar rate. What we do hold is that the Commission, on this record and in the face of the findings accepted by it without question, could not properly find the plaintiffs deficient in terms of the burden of proof Congress intended them to carry.
Wherefore, it is ordered, adjudged, and decreed that the Commission's orders respectively served on January 4, 1972, May 9, 1972, and December 11, 1972, are hereby permanently enjoined, set aside and nullified.