                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 12-1674


ABB INC.,

                 Plaintiff - Appellant,

            v.

CSX TRANSPORTATION, INC.,

                 Defendant – Appellee,

------------------------------

 TRANSPORTATION AND LOGISTICS COUNCIL, INC.,

                 Amicus Supporting Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:08-cv-00025-F)


Argued:   March 21, 2013                    Decided:   June 7, 2013


Before AGEE, KEENAN, and FLOYD, Circuit Judges.


Vacated in part and remanded by published opinion. Judge Keenan
wrote the opinion, in which Judge Floyd joined.     Judge Agee
wrote a separate opinion concurring in part and dissenting in
part.


ARGUED: Jeffrey Mark Young, ABB INC., Raleigh, North Carolina,
for Appellant.     Hyman Hillenbrand, HILLENBRAND, O'BRIEN &
SOLOMON, LLP, Fort Lauderdale, Florida, for Appellee. ON BRIEF:
Dauna L. Bartley, SESSOMS & ROGERS, P.A., Durham, North
Carolina, for Appellant. Thomas D. Garlitz, THOMAS D. GARLITZ,
PLLC, Charlotte, North Carolina, for Appellee.         Raymond A.
Selvaggio,   PEZOLD,   SMITH,   HIRSCHMANN  &   SELVAGGIO,    LLC,
Huntington, New York, for Amicus Supporting Appellant.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

       In March 2006, rail carrier CSX Transportation, Inc. (CSX)

transported an electrical transformer worth about $1.3 million

from   shipper   ABB   Inc.’s     plant    in    St.   Louis,   Missouri     to   a

customer in Pittsburgh, Pennsylvania (the March 2006 shipment).

ABB Inc. (ABB) later filed a complaint in the district court

alleging that the transformer was damaged in transit, and that

CSX was liable for over $550,000, the full amount of the damage.

CSX denied full liability, and alternatively contended that even

if the court found CSX liable for the cargo damage, the parties

had agreed in the bill of lading to limit CSX’s liability to a

maximum of $25,000.

       The district court held that the parties had limited CSX’s

potential   liability   in   the    bill    of    lading   to    $25,000.     The

parties thereafter entered into a consent judgment, reserving

ABB’s right to appeal the district court’s resolution of the

liability limit issue.          Upon our review, we conclude that the

Carmack   Amendment    to   the   Interstate      Commerce      Act,   49   U.S.C.

§ 11706, subjected CSX to full liability for the shipment, and

that the parties did not modify CSX’s level of liability by

written agreement as permitted in that statute.                    We therefore

vacate the portion of the district court’s judgment limiting any

liability on the part of CSX to $25,000.



                                      3
                                                I.

     We begin with a discussion of the complex regulatory scheme

governing      interstate          freight       shipments,        and    the     historical

context in which the shipment in this case occurred.                                   We also

address      the    role    of     the    Carmack         Amendment,     which     restricts

carriers’ ability to limit their liability for cargo damage.



                                                A.

        In    1887,      Congress        enacted      the      Interstate      Commerce      Act

(ICA), 24 Stat. 379, to regulate the transportation industry.

Emerson Elec. Supply Co. v. Estes Express Lines Corp., 451 F.3d

179, 183 (3d Cir. 2006).                      The Interstate Commerce Commission

(ICC)    initially        was    designated          to   administer     this      regulatory

regime, but was replaced in 1995 by the Surface Transportation

Board.       Id. at 183, 186; ICC Termination Act of 1995, Pub. L.

No. 104-88, 109 Stat. 803, 932-34.                        Among other things, the ICC

“regulated         the    railroad       industry         by   requiring       rates    to   be

‘reasonable and just’ and prohibited certain railroad practices,

such as rate discrimination [and] price fixing,” and eventually

expanded       to        include        the     regulation         of      motor       vehicle

transportation.          Emerson, 451 F.3d at 183.

     Until 1995, carriers were required to file their rates, or

“tariffs,”         publicly      with     the    ICC.          Tempel    Steel     Corp.     v.

Landstar      Inway,      Inc.,     211       F.3d    1029,     1030    (7th    Cir.    2000);

                                                4
Comsource Indep. Foodserv. Cos. v. Union Pac. R.R., 102 F.3d

438, 442 (9th Cir. 1996).                Under this scheme, “the filed rate

govern[ed] the legal relationship between shipper and carrier,”

and the carrier could not deviate from the published tariff.

Maislin Indus., U.S. v. Primary Steel, 497 U.S. 116, 119-20, 126

(1990).         For these reasons, shippers and carriers generally were

charged         with    notice   of   the    terms    that    were    required    to    be

included in the carrier’s published tariffs.                          See id. at 127

(citing Louisville & Nashville R.R. Co. v. Maxwell, 237 U.S. 94

(1915)).

       In 1995, in an effort to ease regulatory burdens on the

transportation industry, Congress abolished the requirement that

tariffs be filed as public documents.                     ICC Termination Act of

1995, Pub. L. No. 104-88, 109 Stat. 803; Tempel Steel Corp., 211

F.3d       at   1030.      The   term   “tariff,”      even    when    still    used    by

shippers         and     carriers     “out    of     habit,”    is    now      merely    a

contractual term with “no effect apart from [its] status as [a]

contract[].” 1          Tempel Steel Corp., 211 F.3d at 1030.



       1
       At the time of the 1995 deregulation, Congress imposed on
rail carriers a new obligation to make their rates available to
shippers, in lieu of the public-filing requirement.          ICC
Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803, 830
(codified at 49 U.S.C. § 11101). Section 11101(b) provides:

     A rail carrier shall also provide to any person, on
     request, the carrier’s rates and other service terms.
(Continued)
                                              5
                                        B.

    The      Carmack   Amendment,       49   U.S.C.     § 11706, 2    originally

enacted in 1906 as an amendment to the ICA, “creates a national

scheme of carrier liability for goods damaged or lost during

interstate    shipment   under      a    valid   bill     of   lading.” 3    5K

Logistics, Inc. v. Daily Express, Inc., 659 F.3d 331, 335 (4th

Cir. 2011) (citation and internal quotation marks omitted).                 The

statute requires that a rail carrier issue a bill of lading for

property it transports, and that a carrier is liable to the

“person entitled to recover” under the bill of lading “for the




     The response by a rail carrier to a request for the
     carrier’s rates and other service terms shall be—

          (1)   in  writing  and   forwarded  to  the
          requesting person promptly after receipt of
          the request; or

          (2) promptly      made    available     in     electronic
          form.
     2
       This appeal involves rail carriers, which are subject to
the provisions of 49 U.S.C. § 11706. Today, motor carriers are
also subject to a separate provision of the Carmack Amendment,
codified at 49 U.S.C. § 14706.
     3
       A bill of lading “records that a carrier has received
goods from the party that wishes to ship them, states the terms
of carriage, and serves as evidence of the contract for
carriage.” Norfolk S. Ry. v. James N. Kirby, Pty Ltd., 543 U.S.
14, 18-19 (2004).



                                        6
actual loss or injury to the property” caused by a carrier. 4                       49

U.S.C.    § 11706(a).            The    Carmack      Amendment     specifies      that

“[f]ailure to issue a receipt or bill of lading does not affect

the liability of a rail carrier.”              Id.

      Subsection    (c)     of    the    statute     provides     only   a     limited

exception to full carrier liability:

              (1) A rail carrier may not limit or be exempt
              from liability imposed under subsection (a) of
              this   section   except   as  provided   in  this
              subsection.   A limitation of liability or of the
              amount of recovery or representation or agreement
              in a receipt, bill of lading, contract, or rule
              in violation of this section is void. . . .

              (3) A rail carrier providing transportation or
              service subject to the jurisdiction of the Board
              under   this   part   may  establish    rates for
              transportation of property under which—

                   (A) the liability of the rail carrier for
                   such   property  is   limited   to a value
                   established by written declaration of the
                   shipper or by a written agreement between
                   the shipper and the carrier. . . .

49   U.S.C.    § 11706(c)    (emphasis        added).     In     other   words,    the

Carmack    Amendment      “constrains         carriers’     ability       to     limit

liability by contract,” Kawasaki Kisen Kaisha Ltd. v. Regal-

Beloit Corp., 130 S. Ct. 2433, 2441 (2010), by requiring that a


      4
       To establish a prima facie case of carrier liability under
the Carmack Amendment, a shipper must show (1) delivery of the
goods to the carrier in good condition; (2) the cargo’s arrival
in damaged condition; and (3) the amount of damages.     Oak Hall
Cap & Gown Co. v. Old Dominion Freight Line, Inc., 899 F.2d 291,
294 (4th Cir. 1990).


                                          7
rail       carrier    remains       fully    liable         for    damage    caused       to   its

freight unless the shipper has agreed otherwise in writing.                                     49

U.S.C. § 11706(a), (c); see also Emerson, 451 F.3d at 186 (“[A]

carrier’s         ability     to    limit     [its]         liability       is     a    carefully

defined exception to the Carmack Amendment’s general objective

of   imposing        full    liability       for      the    loss    of   shipped        goods.”)

(quoting Carmana Designs Ltd. v. N. Am. Van Lines, Inc., 943

F.2d       316,    319      (3d    Cir.      1991))         (internal       quotation        marks

omitted). 5          The Carmack Amendment thus protects shippers from

attempts      by     carriers      to    avoid       liability      for     damage      to   cargo

under the carriers’ control, and “relieve[s] cargo owners of the

burden      of    searching        out   a   particular           negligent      carrier       from

among       the    often      numerous       carriers         handling        an       interstate

shipment of goods.”                 Kawasaki, 130 S. Ct. at 2441 (citation

omitted).

       To determine whether a carrier has limited its liability

consistent with the strictures of the Carmack Amendment, courts

       5
        In this opinion, we reference cases involving the
transportation of goods by motor vehicles under Section 14706,
as well as cases involving rail carriers under Section 11706.
As relevant here, pursuant to Section 14706, motor carriers are
by default liable for “the actual loss or injury to the property
caused” by the carrier, but the carrier’s liability may be
limited “to a value established by written or electronic
declaration of the shipper or by written agreement between the
carrier and shipper if that value would be reasonable under the
circumstances surrounding the transportation.”     49 U.S.C. §
14706(a)(1), (c)(1)(A).



                                                 8
have applied a four-part test, under which carriers must: (1)

provide the shipper, upon request, a copy of its rate schedule; 6

(2) “give the shipper a reasonable opportunity to choose between

two   or       more    levels    of       liability;       (3)     obtain    the       shipper’s

agreement as to his choice of carrier liability limit; and (4)

issue      a    bill    of    lading       prior     to    moving     the    shipment         that

reflects        any    such     agreement.”           OneBeacon       Ins.       Co.    v.    Haas

Indus.,        634    F.3d    1092,       1099-1100       (9th    Cir.     2011);      see   also

Chandler v. Aero Mayflower Transit Co., 374 F.2d 129, 137 (4th

Cir. 1967) (explaining the requirement of “reasonable notice” to

choose between levels of liability).                             The Carmack Amendment’s

exception        allowing       for       limited    liability        is    “a   very     narrow

exception to the general rule” imposing full liability on the

carrier.             Toledo Ticket Co. v. Roadway Express, 133 F.3d 439,

442     (6th     Cir.        1998)    (citing        Carmack       Amendment        for      motor

carriers, as previously codified at 49 U.S.C. § 10730).                                   Courts

“will      []    carefully       scrutinize[]”            any    alleged     limitation        of

liability “to assure that the shipper was given a meaningful

choice     and       exercised       it    as   evidenced        by   a    writing.”          Acro



      6
       Before deregulation, the first part of this test required
that the carrier have maintained a tariff with the ICC.
OneBeacon Ins. Co. v. Haas Indus., 634 F.3d 1092, 1099 (9th Cir.
2011) (citing Hughes Aircraft Co. v. N. Am. Van Lines, 970 F.2d
609, 611-12 (9th Cir. 1992)).



                                                 9
Automation Sys. v. Iscont Shipping, 706 F. Supp. 413, 416 (D.

Md. 1989).



                                          II.

      In its complaint filed against CSX, ABB alleged that CSX

was   liable      for   the   “actual     loss   or   injury   arising    from     the

damage to the [t]ransformer” under the Carmack Amendment.                          ABB

also asserted       state     law   claims      for   negligence    and   breach    of

contract.

      CSX did not admit liability, but raised as an affirmative

defense that any liability on its part was limited to a maximum

of $25,000. 7      CSX argued that the bill of lading (BOL) executed

by    ABB   had    incorporated      by     reference     a    $25,000    liability

limitation contained in a separate price list used by CSX.

      The district court did not consider the issue whether ABB

had established a prima facie case of liability against CSX but,

on    submissions       by    the   parties,      proceeded    to    consider      the

liability limitation issue.             The court awarded summary judgment

to CSX based on its defense that it had limited its liability.

The court also reasoned that the Carmack Amendment did not apply

to the shipment because the shipper, rather than the carrier,

      7
       CSX also argued in the district court that the parties had
entered into a private shipping contract governed by 49 U.S.C.
§ 10709, but assumed for purposes of summary judgment that the
shipment was subject to the Carmack Amendment.


                                           10
had drafted the BOL.                  Pursuant to the consent judgment entered

into       by   the     parties,       ABB    timely    appealed       from   the    district

court’s determination regarding CSX’s limitation of liability. 8

       Before beginning our analysis of the Carmack Amendment, we

describe the two documents central to our resolution of this

appeal.         First, the BOL governing the March 2006 shipment is a

partially completed copy of ABB’s standardized bill of lading.

The BOL included general information about the shipment, such as

the date of transport, pick-up and destination locations, and

scheduled           transportation          route.      In    the   space     on    the   form

labeled             “product     value,”        ABB’s        traffic     manager,         Brian

Brueggeman,           entered        “$1,384,000.”       Although       the    box    labeled

“prepaid” (compared with “collect”) was marked, the BOL did not

include         a    price     for    the    shipment    or    indicate       the    level   of

liability assumed by CSX for lost or damaged cargo. 9                               The space

labeled “rate authority” was left blank, as was the box that

included the following pre-printed language:




       8
       The district court also dismissed ABB’s state law claims,
which decision is not at issue in this appeal.
       9
       In his deposition testimony, Brueggeman stated that he
thought that ABB would receive full liability coverage by
declaring the value of the transformer in the body of the BOL,
although he did not include a notation to this effect in the
document.



                                                11
     NOTE – Where the rate is dependent on value, shippers
     are required to state specifically in writing the
     agreed or declared value of the property.

     The agreed or declared value of the property is hereby
     specifically stated by the shipper to be not exceeding
     $___. 10


     The    BOL   also     included      certification   language,    which

provided in part:

     It is mutually agreed . . . that every service to be
     performed hereunder shall be subject to all the terms
     and conditions the Uniform Domestic Straight Bill of
     Lading   set   forth  .   .   .   in  Uniform Freight
     Classification in effect on the date hereof, if this
     is a rail or a rail-water shipment . . .

     Shipper hereby certifies that he is familiar with all
     the terms and conditions of the said bill of lading,
     including those on the back thereof, set forth in the
     classification    or   tariff    which   governs   the
     transportation of this shipment, and the said terms
     and conditions are hereby agreed to by the shipper and
     accepted for himself and his assigns.

(emphasis added). 11     The BOL was signed by Brueggeman.

     The second document at issue in this appeal is CSX Price

List 4605, which was “issued” by CSX on November 18, 2005 and

became    “effective”    on   December     14,   2005.   This   twelve-page


     10
         ABB employees were unable to edit or enter any
information into this “declared value box” due to a feature of
the computer program.
     11
        In addition to the reference to a “tariff” in the
certification, the following language appeared at the top of the
BOL: “RECEIVED Subject to the Classifications and Lawfully filed
tariffs in effect on the date of the issue of this Bill of
Lading” (emphasis added).


                                      12
document     sets     forth     numerous        rules     applicable         to     CSX’s

transportation of machinery, such as, for example, procedures

related to billing and to the loading and unloading of cargo.

Relevant    to    this    appeal    is   the    section    of     Price      List   4605

entitled    “price       restrictions.”         This    section      lists    eighteen

provisions, including the following:

     Carriers’ maximum liability for lading loss or damage
     will not exceed $25,000 per shipment.  Full liability
     coverage is only available by calling your sales
     representative for a specific quote.

CSX’s    corporate    representative,          Joseph   McCauley,      testified        in

his deposition that Price List 4605 does not provide varying

rates associated with different levels of liability, and that in

order to receive coverage for full liability under the list, a

shipper must negotiate a rate directly with the carrier.

        Neither   Brueggeman       nor   his   predecessor      in    ABB’s       traffic

manager position, Craig Steffey, was aware of the existence of

Price List 4605 prior to the March 2006 shipment.                         During his

tenure,     Steffey      had   obtained    rate     information       from        CSX   by

contacting the carrier directly and obtaining a quote specific

to the intended shipment.

        With respect to the March 2006 shipment at issue in this

appeal, Brueggeman sought rate information on multiple occasions




                                          13
without success from CSX personnel and from the CSX website, 12

and thus was unable to complete the space designated on the BOL

for the “rate authority.” 13      Brueggeman explained that because he

had been unable to obtain the rate authority in advance, he

would only learn the price of the shipment when he eventually

received an invoice from CSX.



                                   III.

     ABB   argues   that   the   district   court   erred   in   failing   to

apply the Carmack Amendment to ABB’s shipment.               According to

ABB, because the parties did not agree in writing to limit the

carrier’s liability, CSX is liable under the plain language of

the Carmack Amendment for the full value of the cargo damage.

     In response, CSX argues that ABB, as the drafter of the

BOL, is not entitled to the protection of the Carmack Amendment

     12
         Although McCauley claimed that Price List 4605 was
available on the CSX website, Brueggeman testified that he could
not recall ever seeing a price list, despite “look[ing] all over
the website.”    In any event, it is undisputed that shippers
could not request a full liability quote from CSX through the
website.
     13
        At oral argument and in portions of its briefing, CSX
appears to contest that Brueggeman attempted to obtain rate
information for the shipment.    Yet elsewhere in its briefing,
CSX acknowledges that Brueggeman consulted the CSX website and
made inquiries to certain CSX personnel.          Despite CSX’s
allusions to the contrary, the record clearly indicates that
Brueggeman affirmatively sought rate information from CSX, to no
avail.



                                    14
and    that,    regardless,     the     BOL    incorporated            by    reference    the

limitation      of    liability    included      in    Price       List        4605. 14     We

disagree with CSX’s arguments.

       We nevertheless observe at the outset that ABB’s problem in

this case is partly of its own making.                     The record reflects that

Brueggeman did not exercise due diligence in performing a key

aspect of his job, namely, negotiating and obtaining rate and

liability      information       for    the     shipment          of        very   expensive

equipment. 15        We also recognize that ABB could have prevented

many of the problems that occurred in this case not only by

properly negotiating the shipping rate, but also by revising its

standardized bill of lading to exclude outdated references to

“tariffs” and “classifications” that were part of the pre-1995

regulatory scheme.

       Despite       ABB’s   failures,    however,          the    Carmack         Amendment

imposed the burden of securing limited liability on the carrier,

CSX,    not    on     the    shipper,    ABB.         49     U.S.C.          § 11706;     Acro

Automation Sys., 706 F. Supp. at 416.                 The plain language of the


       14
        Based on the facts of this case, we are not confronted
with a possible “written declaration of the shipper” as an
exception to the imposition of full liability under the Carmack
Amendment. 49 U.S.C. § 11706(c)(3)(A). Accordingly, we address
only the “written agreement” exception. Id.
       15
       We note that CSX’s conduct also was culpable, given CSX’s
lack of accessibility to shippers over an extended period of
time.


                                          15
statute    provides       that    in    the       absence    of    a     clear,     written

agreement    by     the    shipper,      the       carrier    is       subject     to    full

liability for actual losses.             See 49 U.S.C. § 11706(a), (c).

      To overcome this default posture of full liability imposed

by the Carmack Amendment, the carrier and the shipper must have

a written agreement that is sufficiently specific to manifest

that the shipper in fact agreed to a limitation of liability.

“[A] carrier cannot limit liability by implication.                              There must

be   an   absolute,       deliberate     and       well-informed         choice     by    the

shipper.”    Acro Automation Sys., 706 F. Supp. at 416 (citation

omitted).    Without a rule requiring at least some specificity in

a written agreement, the shipper would not have “a reasonable

opportunity to choose between two or more levels of liability,”

OneBeacon    Ins.    Co.,       634   F.3d    at    1099,    but       instead    would    be

automatically       and      unwittingly           subject        to     the      carrier’s

unilateral choice of a rate authority.                       Cf. N.Y., New Haven &

Hartford    R.R.    Co.    v.    Nothnagle,        346   U.S.     128,    135-36        (1953)

(“Binding [the shipper] by a limitation which [the shipper] had

no reasonable opportunity to discover would effectively deprive

[the shipper] of the requisite choice; such an arrangement would

amount to a forbidden attempt to exonerate a carrier from the

consequences of its own negligent acts.”).

      We disagree with the district court’s conclusion that, as a

general matter, the Carmack Amendment does not apply when the

                                             16
shipper drafts the bill of lading.                  The text of the Carmack

Amendment imposes full liability on carriers, without regard to

which party prepared the bill of lading.                   The statute provides

that a carrier’s failure to issue a bill of lading “does not

affect the liability of a rail carrier.”                 49 U.S.C. § 11706(a).

     In this case, the parties did not reach a written agreement

to limit CSX’s liability and, accordingly, the Carmack Amendment

operated to impose full liability on CSX.                  On its face, the BOL

governing   the   March     2006    shipment       was    silent   regarding      the

extent of CSX’s liability.          The space on the BOL labeled “rate

authority,”    where    a    notation        regarding     rate    and    liability

normally would be listed, was left blank.                 Moreover, the BOL did

not contain any references to an identifiable classification, a

rate authority code, a price list, or any other indication that

the carrier assumed only limited liability.

     CSX    contends,       nonetheless,       that      Price     List    4605    is

incorporated   by   reference       into     the   BOL     through   standardized

language    appearing   on    the   BOL,      indicating      that   the    shipper

agreed to the terms and conditions in “the classification or

tariff which governs the transportation of this shipment.”                         In

CSX’s view, this standardized language is adequate to meet the

“written agreement” exception for avoiding full liability under

the Carmack Amendment.



                                        17
       We cannot endorse CSX’s position urging limited liability

under these circumstances, because the language in the BOL does

not    specifically         reference      Price       List        4605.         Under    CSX’s

proposed      rule,       shippers    would      be    charged       with        notice    of    a

private price list created by the carrier, even when the list

was    not    filed       for   public     inspection,         the       shipper     had      not

previously shipped cargo pursuant to that list, and the shipper

had    sought       the    pricing    information           unsuccessfully          from      the

carrier      before       drafting   the   BOL.            Under    such    a     theory,      the

shipper’s “knowledge” of the list could be proved solely by use

of    the    generic      and   outdated    word       “tariff”         being     employed      as

standard language in a bill of lading.

       Prior to deregulation, courts reasonably held shippers to

constructive knowledge of a published tariff based on a generic

reference to the tariff in a bill of lading.                               See Mech. Tech.

Inc., v. Ryder Truck Lines, Inc., 776 F.2d 1085, 1087-89 (2d

Cir. 1985).         Today, however, carriers are not required to file

such public tariffs.            Tempel Steel Corp., 211 F.3d at 1030.                           To

permit a carrier to assume that a shipper is familiar with a

carrier’s       price       list,    without          any    manifestation           of       that

familiarity in the bill of lading or in an external agreement

limiting      the     carrier’s      liability,        would       be    contrary        to    the

Carmack      Amendment’s        command    that        a    carrier        may    only    limit



                                            18
liability pursuant to an express, written agreement with the

shipper.      49 U.S.C. § 11706(c).

       Extended to its logical extreme, CSX’s proposed rule would

encourage absurd results.            One such example would be a situation

in which the bill of lading references a general “tariff,” but

does    not   specify     a    particular       rate    authority    or    other    code

indicating     the   applicable       rate      and    liability    level.     In    the

absence of publicly filed tariffs, or a citation to a specific

rate authority or code, a carrier could change unilaterally its

level of liability, unbeknownst to the shipper, by altering its

price list a day before the shipment takes place.

       Additionally, we observe that a decision in favor of CSX

would    be    required       if   Price   List        4605   had   been   referenced

specifically in the BOL, even if ABB had not actually been aware

of the limitation of liability contained in that price list.                         In

such a circumstance, the shipper reasonably would be charged

with notice of the meaning of a precise, currently applicable

term that the shipper included in the BOL.

       The Eleventh Circuit’s decision in Siren, Inc. v. Estes

Express Lines, 249 F.3d 1268 (11th Cir. 2001), on which the

district court and CSX have relied, is distinguishable on this

basis.     In Siren, the shipper prepared the bill of lading and

noted twice that the shipment would move under “Class 85,” a

term understood in the trucking industry as limiting liability

                                           19
to a certain amount per pound of cargo, although the shipper

maintained       it   had   no   actual     knowledge   that   this    class

designation provided such a limitation of liability.              249 F.3d

at 1269, 1272.        Nevertheless, the shipper was aware that it had

received     a    significant    discount     from   the   carrier’s   full

liability rate for the shipment in question, and that the rate

it received was based on the “Class 85” designation.             Id.    The

Eleventh Circuit concluded that, because “[the shipper] drafted

the bill of lading, [the shipper] chose to use the term ‘Class

85’, [the shipper] did not rebut [the carrier’s] assertion at

trial that ‘Class 85’ included a limiting aspect, [the shipper]

knew ‘Class 85’ determined the freight rate charged, and [the

shipper] knew that it received a 62% discount from [the] full

freight rate,” the shipper could not avoid the limitation of

liability it had included in the contract, because it was not

“proper or necessary to protect shippers from themselves.”              Id.

at 1271, 1273.

     We agree with the Eleventh Circuit’s determination that, by

including a specific class designation in the bill of lading,

the shipper was bound to the terms and conditions associated

with that class designation.        Cf. Hughes Aircraft Co. v. N. Am.

Van Lines, Inc., 970 F.2d 609, 612 (9th Cir. 1992) (holding that

a shipper had “reasonable notice and an opportunity to make a

deliberate, thoughtful choice in selecting” a limit of liability

                                     20
when the shipper drafted the bill of lading and negotiated its

terms).         In   the   present      case,      however,    the    BOL    is   entirely

silent    regarding        any    current     rate,     classification,           or   other

specific authority governing the shipment.                           There also is no

evidence that the parties had a written agreement establishing a

limit     of    liability        separate     from    the     BOL.         Therefore,       as

discussed above, we decline to conclude that a shipper should be

held to notice of a privately held price list based only on

generic        and   ambiguous       language        referencing      a     “tariff”        or

“classification.” 16

     Our       conclusion        that   the     parties       did    not    agree      to    a

liability limitation is not altered by CSX’s reliance on its

     16
        We disagree with the dissent’s contention that the facts
of this case are “indistinguishable” from the facts in Werner
Enters. v. Westwind Mar. Int’l, Inc., 554 F.3d 1319 (11th Cir.
2009). Post at 30-32. In Werner, the invoice for the shipment
expressly notified the shipper of the potential for a limitation
of liability. The invoice provided:

     Third parties to whom the goods are entrusted may
     limit liability for loss or damage; the Company will
     request excess valuation coverage only upon specific
     written instructions from the Customer, which must
     agree to pay any charges therefore; in the absence of
     written instructions or the refusal of the third party
     to agree to a higher declared value, at Company's
     discretion, the goods may be tendered to the third
     party, subject to the terms of the third party's
     limitations of liability and/or terms and conditions
     of service.

554 F.3d at 1322. In the present case, however, the BOL did not
contain any such limiting language.    In light of this material
distinction, we conclude that Werner is inapposite.


                                              21
past    course    of       dealing       with   ABB.         The     Carmack   Amendment’s

requirement      of    a       written    agreement         undermines    CSX’s    argument

that    the   parties’         alleged     course      of    dealing     can   serve    as   a

substitute       for       a    written     limitation          of     liability       for   a

particular shipment.               See Mooney v. Farrell Lines, Inc., 616

F.2d 619, 626 (2d Cir. 1980) (declining to limit a carrier’s

liability by evidence of the parties’ course of dealing, when

the liability limit was not included in the bill of lading); cf.

Camar Corp. v. Preston Trucking Co., 18 F. Supp. 2d 112, 115 (D.

Mass.     1998)        (rejecting           argument           that      the      shipper’s

sophistication and the parties’ course of dealing evidenced an

“absolute, deliberate and well-informed choice by the shipper”

to limit the carrier’s liability, in the absence of a bill of

lading or other written agreement).

       Moreover, the present record lacks any evidence that ABB

previously had shipped under the terms of Price List 4605, or

otherwise was familiar with that list.                             Of the seventy-three

total bills of lading pre-dating March 2006 in the record, none

references Price List 4605.                 Indeed, Price List 4605 was issued

in November 2005 and became effective in December 2005, only

three months before the shipment at issue in this case, and

there is no evidence that ABB shipped any cargo pursuant to that

list in the interim three-month period.



                                                22
     Of the nine ABB-CSX bills of lading included in the record,

several different rate authority codes were used, and the record

contains     no   evidence       regarding    the    limits     of   liability

associated with those codes. 17        Steffey, Brueggeman’s predecessor

in the traffic manager position, testified that he entered these

rate authorities on the bills of lading after being instructed

to do so by CSX representatives with whom he had negotiated

rates for particular shipments, not because he was generally

familiar with CSX price lists.         Counsel for CSX also conceded at

oral argument that CSX’s price lists are regularly changing,

further undermining the contention that ABB should have been

familiar with Price List 4605 at the time of the shipment. 18

     We appreciate the common sense observation that a shipper

drafting an imprecise bill of lading should not stand to benefit

from its own lack of precision, as well as the district court’s

reflection    that   such    a   shipper     need   not   be   protected   from

     17
        On one of the ABB-CSX bills of lading, Steffey included
the notation “FULL LIABILITY REQUIRED!!!,” at the direction of a
CSX marketing representative.
     18
        The dissent broadly asserts that ABB has admitted that in
its past dealings with CSX, it “always had to expressly request
full liability coverage in order to receive it.”      Post at 32.
We do not discuss the evidence underlying this broad assertion,
because   any   alleged  course   of  dealing   prior   to  CSX’s
implementation of Price List 4605 does not bear on the question
whether the parties had memorialized in writing an agreement
that the March 2006 shipment would proceed under Price List
4605.



                                      23
itself.    Nevertheless, we are bound by the express language of

the Carmack Amendment, which puts the burden on the carrier to

demonstrate that the parties had a written agreement to limit

the   carrier’s        liability,      irrespective    whether    the   shipper

drafted the bill of lading.            See 49 U.S.C. § 11706(a), (c).        The

general contract principle that ambiguous contracts be construed

against the drafter, see, e.g., Wheeler v. Dynamic Eng’g, 62

F.3d 634, 638 (4th Cir. 1995), is inapplicable in the face of

statutory language that unambiguously imposes the risk of error

on one particular party, the carrier, to the exclusion of the

other party, the shipper. 19

      Finally,    we    note    that   important   practical     considerations

support the conclusion we reach today.                 Shippers by necessity

entrust rail carriers with the safekeeping of expensive cargo

and, under the Carmack Amendment, are entitled to presume that

carriers   will   be     held    fully   responsible    for   damage    incurred

during transit unless otherwise agreed.                Our ruling encourages

parties to employ precise bills of lading, which reflect fully

and specifically the parties’ choice of liability terms, and to




      19
        For the same reason, we disagree with the dissent’s
reliance on the state law principle that a unilateral mistake
does   not   justify  rescission   of   a   contract under  the
circumstances of this case.     Post at 35 (citing Kassebaum v.
Kassebaum, 42 S.W.3d 685, 693 (Mo. Ct. App. 2001)).


                                         24
memorialize   these     terms   in      writing       as    Congress    intended      by

passage of the Carmack Amendment.               See 49 U.S.C. § 11706.



                                          IV.

     In    sum,   we   conclude    that         the   district     court      erred   in

awarding    summary    judgment      in    favor       of    CSX   on   its    claimed

liability    limitation    of     $25,000.            We    therefore   vacate        the

portion of the district court’s judgment fixing that liability

limitation    and      remand     the      case       for    further    proceedings

consistent with this opinion.



                                                  VACATED IN PART AND REMANDED




                                          25
  AGEE, Circuit Judge, concurring in part and dissenting in part:

       I concur in the majority opinion except as to those parts

of Sections III and IV that conclude that the district court

improperly granted CSX’s 1 motion for partial summary judgment. In

my view, both the record and circuit precedent support the grant

of   partial        summary   judgment   in    favor    of    CSX.   Accordingly,    I

respectfully dissent as to the above-noted parts of the majority

opinion.



                                           I

       As    a     preliminary   matter,   the    BOL    in    the   transaction    at

issue was drafted by ABB, the shipper, on its own standardized

form. The BOL clearly stated,

                      Shipper hereby certifies that he is
                 familiar with all the terms and conditions
                 of the said bill of lading, including those
                 on the back thereof, set forth in the
                 classification or tariff which governs the
                 transportation of this shipment, and the
                 said terms and conditions are hereby agreed
                 to by the shipper and accepted for himself
                 and his assigns.

J.A. 121.

CSX’s effective rate schedule at the time of the shipment, Price

List       4605,    clearly   stated,    “Carriers’      maximum     liability     for

       1
       For brevity and clarity, I adopt the same conventions as
in the majority opinion. For example, I refer to the defendant
as “CSX,” the plaintiff as “ABB,” and the Bill of Lading as
“BOL.”
lading loss or damage will not exceed $25,000 per shipment. Full

liability    coverage     is   only   available   by   calling   your   sales

representative for a specific quote.” J.A. 117.

      Although ABB employees testified that they were not aware

of Price List 4605 prior to drafting the BOL, CSX employees

testified that Price List 4605 was published on the CSX company

website and was available upon request from any of its sales

representatives. ABB does not dispute that Price List 4605 was

available on CSX’s company website. ABB merely asserts that its

employees attempted to contact CSX to obtain a price quote, but

had   no   success   in   receiving    rate   information   by   telephone. 2

Despite its inability to receive price information from CSX, ABB

still chose to ship a $1.384 million transformer using CSX as

the carrier.



                                       II

                                       A


      2
        The majority opinion states that Brueggeman, ABB’s
employee, attempted to retrieve the price list from CSX’s
website without success. Majority Op. 14 & n.13. Yet contrary to
the majority opinion’s recitation, Brueggeman testified only
that “I looked all over the website and tried to find a lot of
different things and I do not ever remember seeing a price list
that they made available on the website for me to go and look
at.” J.A. 236. Brueggeman did not testify that the CSX website
did not contain Price List 4605. The record contains no evidence
contradicting CSX’s claim that Price List 4605 was published and
available on its website.


                                       27
     The    majority    holds    that    “the    parties    did   not   reach   a

written agreement to limit CSX’s liability and, accordingly, the

Carmack Amendment operated to impose full liability on CSX.”

Majority Op. 17. 3 On this point, we disagree. The record shows

that the parties made such a written agreement and that the

agreement    complies     with    the        requirements   of    the   Carmack

Amendment and limits CSX’s liability.

     The Carmack Amendment allows a commercial rail carrier to

limit its liability with the shipper’s written consent.

            A rail carrier providing transportation or
            service subject to the jurisdiction of the
            Board under this part may establish rates
            for transportation of property under which—

                 (A) the liability of the rail carrier
                 for such property is limited to a value
                 established by written declaration of
                 the shipper or by a written agreement
                 between the shipper and the carrier; or

               (B) specified amounts are deducted,
               pursuant to a written agreement between
               the shipper and the carrier, from any
               claim against the carrier with respect
               to the transportation of such property.
49 U.S.C. § 11706(c)(3).

     Courts determine whether such written consent is effective

under the Carmack Amendment by considering whether the carrier

     3
       The majority holds that the district court erred in
concluding that the Carmack Amendment does not apply when the
shipper has drafted the bill of lading. On this point, I agree
with the majority opinion; however, for the reasons stated
herein, I would hold that ABB does not prevail under the Carmack
Amendment.


                                        28
(1) provided a tariff to the shipper upon the shipper’s request, 4

(2) “gave the shipper a reasonable opportunity to choose between

two or more levels of liability” (at least one of which was full

liability coverage), (3) “obtain[ed the] shipper’s agreement as

to his choice of carrier liability,” and (4) “issue[d] a bill of

lading prior to moving the shipment.” See OneBeacon Ins. Co. v.

Haas Indus., Inc., 634 F.3d 1092, 1099–1100 (9th Cir. 2011). 5


     4
        Prior to deregulation, courts held that a written
agreement limiting liability was valid only if the carrier
“maintain[ed] a tariff in compliance with the requirements of
the Interstate Commerce Commission.” Hughes Aircraft Co. v. N.
Am. Van Lines, Inc., 970 F.2d 609, 611 (9th Cir. 1992). However,
Congress eliminated the requirement that carriers file tariffs
with the government in 1994. OneBeacon, 634 F.3d at 1099. Courts
responded by holding that a carrier must provide its tariff to
the shipper upon the shipper’s request. Id. at 1100.

     ABB argues that Price List 4605 is not a “tariff” because
the term “tariff” refers only to tariffs lawfully filed with the
ICC prior to deregulation, rendering that term essentially
meaningless   in   the   deregulation   era.  Yet   even   after
deregulation, rate schedules and price lists, such as Price List
4605, are still commonly referred to as tariffs. See, e.g.,
Sassy Doll Creations, Inc. v. Watkins Motor Lines, Inc., 331
F.3d 834, 841 (11th Cir. 2003). As discussed more fully below,
post-deregulation, a “tariff” and “schedule of rates” are
equivalent terms in the contemporary trade.
     5
       The Eleventh Circuit has provided that a carrier and
shipper may effectively agree to a limitation on liability in
compliance with the Carmack Amendment if, for example, “a) the
carrier prepares a bill of lading which incorporates the
carrier's tariff by reference, b) that tariff contains an
applicable limitation of liability provision and c) the shipper
agrees to and signs the bill of lading,” or if “the shipper
. . . prepare[s] a similar bill of lading that the parties agree
to and sign.” Siren, Inc. v. Estes Express Lines, 249 F.3d 1268,
1270 (11th Cir. 2001) (emphasis omitted).


                                29
         Two of the above requirements are easily disposed of. As to

the first requirement, ABB does not dispute that CSX never, in

fact, received a request for its rates or tariff from ABB. While

ABB asserts that it made several telephone calls to CSX that

went unreturned, ABB presented no evidence that it ever made

actual contact with an authorized CSX agent to request CSX’s

rate information. Nor does ABB present any evidence to rebut

CSX’s testimony that its rate information was available on its

website. And courts have concluded that the fourth requirement,

that a carrier issue a bill of lading prior to shipment, is also

satisfied when the shipper prepares the bill of lading. See,

e.g., Siren, Inc. v. Estes Express Lines, 249 F.3d 1268, 1273

(11th Cir. 2001). Thus, at issue in this case is only whether

ABB had a reasonable opportunity to choose between two or more

levels of liability and whether ABB agreed in writing to limited

liability on the part of CSX.

         The record reflects that CSX provided ABB with a reasonable

opportunity         to   choose   between    different    levels   of   liability

coverage. The facts of this case seem indistinguishable from

those in Werner Enterprises v. Westwind Maritime International,

Inc. 6       In   Werner,   the   Eleventh    Circuit    considered     whether   a


         6
       The majority opinion distinguishes Werner on the basis
that the contract between the shipper and the carrier suggested
that certain third-party carriers could limit their liability by
(Continued)
                                         30
shipper     was    given    a   reasonable       opportunity    to    elect   full

liability coverage when the shipping document incorporated by

reference    the     carrier’s     tariff,    which    contained       a   $200,000

limitation on liability. 554 F.3d 1319, 1328 (11th Cir. 2009).

Notably, the tariff at issue in Werner instructed a shipper to

specifically notify the carrier when it wanted full liability

coverage. Id. As in the case at bar, the shipper in Werner never

expressly requested full liability coverage from the carrier.

Id. at 1323. The shipper in Werner argued that it did not have a

meaningful        opportunity    to     request    full   liability        coverage

because the carrier’s default coverage was limited. Id. at 1327.

Faced with this argument, the Eleventh Circuit held that the

carrier properly limited its liability within the requirements

of the Carmack Amendment because it provided the shipper with

the right to request full liability coverage. Id.

     ABB    makes     the   same      argument    rejected     by    the   Eleventh

Circuit in Werner—that CSX’s default policy of limited liability

deprived it of a reasonable opportunity to choose full liability




default and that full liability coverage was available only upon
a specific written request. While the BOL in this case did not
contain such a requirement on its face, it did incorporate this
requirement by reference to CSX’s “tariff which governs the
transportation of this shipment.” Moreover, even disregarding
ABB’s incorporation of CSX’s tariff by reference, ABB admits
that it was familiar with CSX’s default policy of limited
liability.


                                         31
coverage. Yet like the carrier in Werner, CSX merely reserved

“the right to approve the request [for full liability coverage]

and charge a correspondingly higher rate.” Id. CSX’s effective

tariff, Price List 4605, incorporated by reference in the BOL,

provided     shippers     with          the    right     to    elect     full    liability

coverage.

      Although ABB argues that it was not aware of Price List

4605, it is undisputed that CSX’s policy requiring its shippers

to affirmatively request full liability coverage was not new to

Price     List   4605   and       was    not    a    change    in   policy      from   prior

dealings between CSX and ABB. In fact, ABB admits that in its

past dealings with CSX as well as other carriers, it always had

to expressly request full liability coverage in order to receive

it   and   that    it   was       aware       that   rail     carriers    limited      their

liability to amounts as low as $25,000 prior to the shipment at

issue. It is therefore easy to conclude that, as in Werner, CSX

provided     ABB   with       a    reasonable          opportunity       to   elect    full

liability coverage, an opportunity ABB chose not to avail itself

of for reasons known only to ABB. 7

      This conclusion is further supported by the fact that ABB

      7
       The likely reason ABB did not pursue full liability
coverage was the incompetence or negligence, or both, of
Brueggeman, its agent. Nonetheless, the salient point for
Carmack Amendment purposes is that ABB had the option to pursue
full liability coverage and chose to ship its transformer
without doing so.


                                               32
drafted the BOL in this case. ABB argues at length that various

problems     with     ABB’s      own     BOL        deprived    it   of     a     reasonable

opportunity      to    choose       full    liability          coverage.        Among    other

things, ABB argues that its form bill of lading would not allow

the employee filling it out to enter a value in the “declared

value” box of the form. ABB’s entire line of argument, however,

completely ignores the fact that ABB created the bill of lading

form and tendered it as a contract to CSX. While a carrier may

not require a shipper to use a form that deprives the shipper of

a reasonable opportunity to request full liability coverage, any

defects in a form created by a shipper are “no more than a

unilateral mistake” that cannot later be used against a carrier.

Sassy   Doll,    331    F.3d     at      842;   see     Werner,      554    F.3d    at     1328

(stating that, while rejecting a similar claim, the court was

“particularly persuaded by the fact that the shipper drafted the

bill of lading.”); Norton v. Jim Phillips Horse Transp., Inc.,

901 F.2d 821, 830 (10th Cir. 1989) (“Carriers should not be held

to a standard that would impose liability on them due to a

unilateral      mistake     by      an    experienced          shipper.”);        Hughes    v.

United Van Lines, Inc., 829 F.2d 1407, 1418–19 (7th Cir. 1987)

(“[O]nce the shipper was aware that the document signed was a

contract for transporting his goods, absent fraud or bad faith,

the shipper cannot reform the bill of lading without the consent

of   the   carrier     on     the      grounds       that   they     were       unilaterally

                                               33
mistaken about the terms of the contract.”). ABB cannot rely on

its own negligence in introducing its own defective document

into    the        commercial          marketplace           to        avoid     the       resulting

consequences            of   its      contractual           covenants.         Nothing      in     the

Carmack      Amendment         requires       the      carrier         to   hold     the    shipper

harmless for the shipper’s negligence, particularly where the

carrier has every reason to take the shipper at its word.

       Moreover,         ABB    agreed       in   writing         to    CSX’s    limitation         on

liability. On its face, the BOL unambiguously incorporated CSX’s

effective      tariff,         which     was      Price      List       4605,    and       therefore

functioned         to    limit     CSX’s      liability           in    accordance         with   the

Carmack      Amendment.          Specifically,             ABB    certified         that    it     was

“familiar with all the terms and conditions . . . set forth in

the classification or tariff which governs the transportation of

this shipment” and that it agreed to be bound by those terms and

conditions.         J.A.       121.      The      majority             opinion      treats        this

unambiguous, binding contract language as inoperative, however,

because      (1)    the      reference       to      the     “tariff        which    governs       the

transportation of this shipment” is generic boilerplate language

and (2) the BOL does not specifically mention Price List 4605.

       ABB    concedes         that    the     BOL     is    a    valid,       binding     contract

between the parties. The Court must therefore read that contract

consistently with the applicable contract law of the state in

which the contract was formed. See CTI/DC, Inc. v. Selective

                                                  34
Ins. Co. of Am., 392 F.3d 114, 118 (4th Cir. 2004). Because ABB

asserts that the contract was formed in Missouri and CSX does

not argue otherwise on appeal, we apply Missouri law.

       Under Missouri law, the parol evidence rule bars courts

from    considering        whether    a    party       to   a    contract         may    have

“intended anything other than what was written” in the contract

document. See Celtic Corp. v. Tinnea, 254 S.W.3d 137, 143 (Mo.

Ct. App. 2008). One party’s unilateral mistake cannot serve as

the basis of rescission under Missouri law unless the mistake

related to a material fact and the other party to the contract

knew   or   should    have    known       of    the   mistake.       See    Kassebaum     v.

Kassebaum, 42 S.W.3d 685, 693 (Mo. Ct. App. 2001).

       ABB argues that the contract language is unenforceable as

written     because    the     term       “tariff”      refers       only    to     tariffs

lawfully filed with the ICC prior to deregulation, rendering

that term essentially meaningless in the ensuing 20 years of the

deregulation era. Yet even after deregulation, rate schedules

and price lists, such as Price List 4605, are still commonly, if

not uniformly, referred to as tariffs. See, e.g., Werner, 554

F.3d   at   1328     (referring       to       the    carrier’s      post-deregulation

shipping document as a “tariff”); Sassy Doll, 331 F.3d at 841

(holding    that,     in    the   deregulation          era,    “a    carrier       is   now

required to provide a shipper with the carrier's tariff if the

shipper requests it, instead of the shipper filing its tariff

                                               35
with the now-defunct ICC”). Moreover, Price List 4605 clearly

falls within the plain meaning of the term “tariff,” which is

defined     as    “a    listing       or   scale   of     rates    or    charges    for   a

business or a public utility.” 8 Webster’s Third New International

Dictionary 2341 (2002). Thus, the BOL plainly and unambiguously

stated on its face that ABB was familiar with the terms and

conditions of CSX’s effective tariff, which was Price List 4605,

and that ABB agreed to be bound by those terms. Consequently,

ABB’s argument that it intended the reference to “tariffs” in

its own document to carry no meaning is foreclosed by basic

principles       of    Missouri       contract     law.    See    Celtic     Corp.,      254

S.W.3d at 143.

      ABB    concedes      in     its      opening      brief,    “There     is    nothing

ambiguous about the form language in the BOL.” Appellant’s Brief

47. Nonetheless, ABB argues that the court should not bind it to

its   unambiguous        contract       provision       because    ABB    did     not   have

actual    knowledge       of    CSX’s      effective      tariff    and     because     the

provision        at    issue    was     outdated     boilerplate         language 9—i.e.,


      8
       Price List 4605 also falls within the plain meaning of the
term “classification,” which is defined as “a publication
containing for the purpose of tariff assessment a list of
articles, the classes to which they are assigned, and the rules
and regulations governing the application of class rates.”
Webster’s at 417. ABB presents no argument that Price List 4605
is not a classification.
     9
        ABB emphasizes that the contract language at issue is
boilerplate language. Yet neither ABB nor the majority opinion
(Continued)
                                             36
because ABB made a unilateral mistake in its drafting of the

BOL, albeit one it has perpetuated on a routine basis for two

decades. Yet ABB presents no evidence and makes no argument CSX

knew or should have known of ABB’s “mistake.” Rather, ABB admits

that it        never   had   two-way    communication        with   CSX    and   simply

faxed the completed BOL to CSX and relied on CSX as its carrier

for the shipment of the transformer. Upon CSX’s receiving the

completed BOL that unambiguously stated on its face that ABB was

aware of and accepted the terms of its effective tariff, CSX had

no reason to believe that ABB, an experienced shipper, did not

mean exactly what it stated in plain language on its own form.

Thus, in the absence of any evidence of bad faith on the part of

CSX, Missouri law prohibits ABB from avoiding the provision of

its own BOL that it now finds unfavorable. See Kassebaum, 42

S.W.3d at 693.

      The majority rejects the plain language interpretation of

the     BOL,    arguing      that   under        such   an   interpretation,      “the

shipper’s ‘knowledge’ of the [effective price] list could be

proved solely by use of the generic and outdated word ‘tariff’

being    employed      as    standard    language       in   a   bill     of   lading.”




cite to any authority suggesting that boilerplate contract terms
are somehow less binding than other contract terms, particularly
when the party seeking rescission of those terms is the party
that drafted them.


                                            37
Majority    Op.    18.    Having     already     demonstrated      that    the    term

“tariff” remains in common usage in the shipping industry, see

Sassy Doll, 331 F.3d at 841, I also note that ABB did not simply

make a general, passing reference to a “tariff” in the BOL.

Instead, ABB certified, in binding contract language, that it

was familiar with the terms of CSX’s tariff. That ABB now argues

it did not actually have the knowledge it then claimed it had is

simply     no     basis    upon      which      to    render    meaningless        the

unambiguous,      binding      terms    of     its   contract   with   CSX.      ABB’s

unilateral failure to draft its own contract with specificity

should     not    allow   it    to     later     abandon   terms    that    it,     in

hindsight, no longer finds favorable. As the Eleventh Circuit

stated in Sassy Doll, the Court’s sympathy should “not go out to

the drafter of a bill of lading who blames another party for the

results that flow from defects in that document.” 331 F.3d at

843; see also Werner, 554 F.3d at 1328 (holding that courts

should be “reluctant to protect a sophisticated shipper from

itself when it drafts a shipping document”).

     Ultimately, it is undisputed that ABB is “an experienced

shipper[,] was not forced to employ [CSX],” and used its own BOL

contract. Mech. Tech. Inc. v. Ryder Truck Lines, Inc., 776 F.2d

1085, 1088 (2d Cir. 1985). It is therefore appropriate to bind

ABB to its own choices, even if ABB now argues it made those

choices by its own unilateral mistake. See Norton, 901 F.2d at

                                          38
830   (“Carriers         should    not      be    held       to    a   standard   that     would

impose     liability       on    them      due    to     a    unilateral      mistake      by   an

experienced        shipper.”);          see      also        Siren,     249   F.3d    at    1272

(refusing to reform a shipping contract subject to the Carmack

Amendment        when    the    shipper          made    a     unilateral       mistake).       As

expressly contemplated in Siren, ABB “agree[d] in writing to a

limitation of liability” by “prepar[ing] a bill of lading which

incorporate[d] [CSX’s] tariff by reference,” and CSX’s tariff

“contain[ed] an applicable limitation of liability provision.”

Siren,     249    F.3d at       1270. 10 As        the       Eleventh     Circuit     noted     in

Werner, “the [Carmack Amendment] requires nothing more than a

valid      written      contract        between         the       parties     establishing       a

reasonable value for the purpose of limiting the liability of

the   carrier.”         554    F.3d   at      1328      (quoting       Siren,   249   F.3d      at

1271.)



                                                 III

      For all the foregoing reasons, I conclude that the BOL,

incorporating Price List 4605 and its limitation on liability,

      10
        The majority opinion rejects these cases, each of which
apply the doctrine of unilateral mistake in the Carmack
Amendment   context,   by   stating,   without   citation  to   any
authority,   that  the    Carmack   Amendment  overrides   standard
principles    of  contract     interpretation   by   “unambiguously
impos[ing] the risk of error on one particular party, the
carrier, to the exclusion of the other party, the shipper.”
Majority Op. 24.


                                                 39
fully     complies    with     the    Carmack        Amendment     as        a     “written

agreement    between     the     shipper       and   the    carrier.”            49   U.S.C.

§ 11706(c)(3). I would therefore hold that the district court

properly    applied    the     Carmack     Amendment       exception        for       written

agreements    of     limited    liability        and,   thus,     properly            granted

partial    summary    judgment       to   CSX.    Accordingly,         I    respectfully

dissent from the portion of Section III of the majority opinion

regarding    the     majority’s      interpretation        of    the       BOL    and    from

Section IV of the majority opinion. I would affirm the district

court’s     order     granting       CSX’s     motion      for    partial             summary

judgment.




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