Plаintiff, Toledo Ticket Company (“Toledo Ticket”), appeals from the district court’s order granting summary judgment to defendant, Roadway Express, Inc. (“Roadway”), a common carrier in the business of moving freight. The district court ruled that Roadway had, in accordаnce with the Interstate
FACTS
Toledo Ticket and Roadway entered into a written contract calling for Roadway to deliver specific items, on behalf of Toledo Ticket, to the Golden Gate Bridge Highway and Transportation Department (“Golden Gate”) in San Francisco, California, for a fee of $965.79. Roadway agreed to deliver 188 cartons, each carton containing 800 books of toll tickets for travel on the Golden Gate Bridge. Roadway picked up all 188 cartons but delivered only 186 of them, as two cartons wеre stolen during shipment. As a result, Toledo Ticket sued Roadway for $13,020 in damages, an amount equalling the amount of loss Golden Gate had asserted against Toledo Ticket. Roadway, however, maintained that it was entitled to rely upon a limitation of liability fоund in the tariff it had filed with the Interstate Commerce Commission (“ICC”). The district court granted summary judgment to Roadway, holding that Roadway had limited its damages to $34.
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We review de novo the order granting summary judgment.
Brooks v. American Broadcasting Cos.,
ANALYSIS
Toledo Ticket’s claim for damages is governed by the Interstate Commerce Act (“ICA”), an act preempting stаte and common law actions relating to the shipment of goods by interstate carriers.
See W.D. Lawson & Co. v. Penn Cent. Co.,
If, pursuant to § 10730, a carrier receives authorization for a tariff that includes a shipping rate hmiting its liability for lost or damaged goods to the value established by the shipper (called the “released value” of the goods), and the shipper is willing to limit the carrier’s liability to a value lower than the actual worth of the goods, the carrier will be in a positiоn to shift some of the risk of loss of the goods back to the shipper. In exchange for agreeing to this lower released valuation, the shipper can expect to enjoy a lower shipping cost. The shipper is not required to accept the lower shipping rate and share the risk of loss; instead, it can select a
For a carrier to limit its liability pursuant to § 10730, it must satisfy four requirements. The carrier must: (1) maintain approved tariff rates with the ICC; (2) give the shipper a fair opportunity to choose between two or mоre levels of liability;' (3) obtain the shipper’s written agreement as to his choice of liability; and (4) issue a receipt or bill of lading prior to moving the shipment.
Rohner Gehrig,
1. ICG-approved tariff
To satisfy the first requirement, a carrier must file a rate schedule, called a “tariff,” for apprоval with the ICC. The district court found, and Toledo Ticket does not 'dispute, that Roadway maintained an approved tariff. The tariff included a shipping rate that was based upon a fifty cent per pound released value for “printed matter having exсhange value.”
2. Fair opportunity to choose carrier’s liability
With regard to the second requirement, the Supreme Court has noted that “only by granting its customers a fair opportunity to choose between higher or lower liability by paying a correspondingly greater or lesser charge can a carrier lawfully limit recovery to an amount less than the actual loss sustained.”
New York, N.H. & H.R. Co. v. Nothnagle,
Roadway contends that it satisfied the fair opportunity requirement when it gave Toledo Ticket a bill of lading that included a box in which the following language appeared:
WHEN 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: $_PER__
Toledo Ticket’s employee left this box blank. Elsewhere, the bill of lading provided that “FREIGHT MOVING UNDER THIS BILL OF LADING IS SUBJECT TO TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION.” Roadway’s tariff provides that it may insure the shipper’s goods at the lowest rеleased value permitted in the tariff if the shipper fails to declare a value in the bill of lading.
4
Hence,
Toledo Ticket argues that Roadway failed to limit its liability beсause it did not give Toledo Ticket reasonable notice of the liability limitation and a fair opportunity to choose among options. Toledo Ticket offered an affidavit from the employee who filled out the bill of lading on its behalf, Jeаn Kroncke. According to Kroncke, she completed the bill of lading in accordance with the procedures and instructions provided by Roadway and was never aware she had a choice regarding the level of Roadway’s liability. The district сourt rejected Toledo Ticket’s argument, holding that, given its status as a sophisticated, frequent shipper, Toledo Ticket could not “credibly claim” to be unaware of this common form of liability limitation.
5
However, in order to provide the shipper with the reasonable notice that will permit the carrier to limit its liability, we believe the carrier must bring to the attention of the shipper its option to choose between levels of lability, whether or not the shipper is “sophisticated.” Furthermore, a carrier cannot satisfy its heavy burden of complying with the statutory scheme by simply alluding to language on file with the ICC as part of its tariff.
Bio-Lab,
We cannot accept Roadway’s argument that the effect of the quoted language from its bill of lading is that if a shipper fails to declare a released value for its goods, then Roadway enjoys the option of choosing to insure the goods at the lowest released value. In the first place, the lаnguage simply does not say as much. Furthermore, even if the obtuse language of the bill of lading could be construed as affording someone an option, surely Roadway has the option reversed. Under the statutory scheme, the carrier is liable for the full value of lost goods unless the shipper agrees to a lower value. The option to limit recovery for loss belongs to the shipper, not the carrier.
Clearly, Toledo Ticket was not provided with a choice among levels of liability; nor was it told that Roadway’s liability was limited. Accordingly, we conclude that Toledo Ticket was not given a fair opportunity to choose between two or more levels of liability-
3. Shipper’s written agreement
In order to satisfy the third requirement, a carrier must obtain the shipper’s written declaration or agreement to abide by a lower valuation of its property. That declaration or agreement must evince an absolute, deliberate and well-informed choice by the shipper to abide by a limited valuation of its proрerty.
Carmana,
J. Issuance of a receipt or bill of lading
To satisfy the fourth requirement, a carrier must provide the shipper with a receipt or bill of lading before transporting shipper’s goods. Toledo Ticket acknowledges that Roadway provided it a bill of lading before it transported the cartons of toll tickets. However, Toledo Ticket never
CONCLUSION
For the reasons stated above, we reverse the order of summary judgment in favor of Roadway and remand this cause to the district court for furthеr proceedings.
Notes
. The district court found that the two stolen cartons weighed a total of 46 pounds and that Roadway had limited its liability to fifty cents per pound. Thus, the court held that Roadway's liability was limited to $23 plus $11 freight charge reimbursement for a total of $34.
. Citations to the ICA refer to the sections as numbered at the time this cause of action arose: February 1995. Subsequent amendments, though not substantively affecting the provisions at issue here, led to a reorganization and renumbering of many sections. See ICC Termination Act of 1995, Pub.L. No. 104-88, 109 Stat. 803 (effective January 1, 1996). The ICA provisions discussed herein now appear at 49 U.S.C. § 14706.
. Section 10730 provides, in relevant part:
(a) The Interstate Commerce Commission may ... authorize a carrier ... to establish rates for transportation of property under which the liability of the carrier fоr that property is limited to a value established by written declaration of the shipper, or by a written agreement....
(b)(1) Subject to the provisions of paragraph (2) of this subsection, a motor common carrier ... may, subject to the provisions of this chаpter ... establish rates for the transportation of property ... under which the liability of the carrier ... for such property is limited to a value established by written declaration of the shipper or by written agreement between the carrier ... and shipрer if that value would be reasonable under the circumstances surrounding the transportation.
(2) Before a carrier or freight forwarder may establish a rate for any service under paragraph (1) of this subsection, the Commission may require such carrier or freight forwarder to have in effect and keep in effect, during any period such rate is in effect under such paragraph, a rate for such service which does not limit the liability of the carrier or freight forwarder.
49 U.S.C. § 10730.
. Specifically, the tariff prоvides: "When tariff provisions provide for alternative actual value or released value declarations by the consignor at time of shipment and carrier receives the shipment without such declaration, the shipment will
. Because the issue of whether Roadway gave Toledo Ticket a fair opportunity to choose was before the district court on summary judgment, the court was, of course, in no position to evaluate Kronke’s credibility.