Later courts went against this
Superseded on other grounds by Cincinnati Milacron, Ltd. v. M/v American Legend, Her Engines, Boilers, Etc., and United States Lines, Inc., 804 F.2d 837 (1986)
784 F.2d 1161, superseded on other grounds, 804 F.2d 837 (4th Cir.1986), the Fourth Circuit held that the limitation of liability is effective only when the carrier gives the shipper a fair opportunity to choose between higher or lower liability.
The opinion
PHILLIPS, Circuit Judge,
dissenting:
I would hold that a short form bill of lading which incorporates COGSA by reference and also incorporates all of the terms and conditions of the corresponding long form bill of lading, including the COGSA § 1304(5) limitation on liability, provides a shipper with a “fair opportunity” to avoid the $500 limitation by declaring a higher value for the goods shipped. Carriers customarily utilize short form bills of lading as convenient working documents, while reserving for the more cumbersome long forms most of the substantial terms of the shipping agreement. See Commonwealth Petrochemicals, Inc. v. S/S PUERTO RICO, 607 F.2d 322, 327 (4th Cir.1979). In this case, U.S. Lines’ long form bill of lading, which specifically incorporated and described the COGSA § 1304(5) limitation on liability, was posted both in its office in Felixstowe and on board the AMERICAN LEGEND, was filed with the Federal Maritime Commission, and was available upon request as provided in the short form given to shippers. While it may indeed be unfair to hold the newcomer or unsophisticated shipper to the terms of COGSA when they nowhere appear in the shipping documents, see Pan American World Airways, Inc. v. California Stevedore and Ballast Co., 559 F.2d 1173 (9th Cir.1977), it does not seem unduly burdensome to impute to shippers knowledge of all of the terms in the more accessible long form bill of lading including, where they appear, the applicable provisions of COGSA.
Accordingly, I respectfully dissent.