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 
2

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.
3

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.
4

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); 
5

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)
6

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). 
7

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. RegalBeloit 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). 
8

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).
9

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)). 
10

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. 
11

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. 
12

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).
13

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 
14

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. 
15

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. 
16

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 
17

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. 
18

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 
19

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 
20

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 
21

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.
22

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. 
23

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.
24

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)). 
25

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
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’s1 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.”
27

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.
28

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.
29

(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).
30

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)
31

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.
32

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.
33

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 
34

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 
35

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 
36

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 language9

—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)
37

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.
38

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 
39

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. 
40

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.