# Petition — Howe v. Allied Van Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0244%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 992 ## Text Supreme u FI L ms 5 80-223 AUG 41989 a [iadlctacs RODAK, JR., CLERK IN THE SUPREME COURT OF THE UNITED STATES October Term, 1980 DONALD D. HOWE, ET AL., Petitioners ©. ALLIED VAN LINES, INC., ET AL., Respondents (Additional Petitioners and Respondents listed on page 1) PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT LEONARD S. WISSOW Attorney for Petitioners WISSOW AND ODZA 21 South Twelfth Street Philadelphia, Pa. 19107 (215) 564-2466 THE LEGAL INTELLIGENCER. 66 NORTH JUNIPER STREET, PHILA., PA. 19107 (215) 561-4050 QUESTION PRESENTED Whether interstate motor common carriers may limit their liability for loss or damage to household goods of members of the armed services shipped at govern- ment expense without having complied with the provi- sions of (former) 49 U.S.C. §20(11), now 49 U.S.C. §§11707 and 10730 (1980). Other parties involved in this petition are: Jerry P. Hill, Petitioner, v. Trans-American Van Service, Inc., Re- spondent United States Automobile Association, Petitioner, v. Aero May- flower Transit Co., Inc. and United States of America, Respon- dents Dale DeFrank, Petitioner, v. Pyramid Van Lines, Inc., Respondent Norman R. Foley, Petitioner, v. American Red Ball Transit Co., Inc. Respondent Donald E. Madonna, Petitioner, v. Richardson Transfer & Storage Co., Inc., Respondent Glenn D. Wilkerson, Petitioner, v. Engel Van Lines, Inc., and United States of America, Respondents George J. Merkler and Jur D. Merkler, Petitioners, v. Aero Mayflower Transit Co., Inc., Respondents Henry Cevallos, Petitioner, v. Vanpac Carriers, Inc., and Clemmer Moving & Storage Inc., Respondents United Services Automobile Association, Petitioner, v. Wheaton Van Lines, Inc., Respondent. Williarn E. Blase and United Services Automobile Association, Peti- tioners, v. National Van Lines, Inc., and United States of Amer- ica, Respondents. United Services Automobile Association, Petitioner, v. Rocky Ford Moving Vans, Inc., and United States of America, Respon- dents. TABLE OF CONTENTS The Petition for Writ of Certiorari Page EE ET IE re re a Pre 2 PEERS EP Oe SUE ee ee 2 iy bce 4 aha Wes «47d oes ba ee a 3 i r,s. sks tk bade SAS eC 3 rr ar cree Ce... sae ee od eee 4 Reasons for Granting the Writ ................ 5 Point 1. The Decision Exempts the Major Op. eration of the Nation’s Moving Van Industry from the Liability for Cargo Damage Placed upon such Common Carriers by the Control- ling Statute and Is in Direct Conflict with the Decisions of this Court and Other Courts of Ap- peals as well as the Position of the Interstate caemmenos Compmiesion ........60600ces 0 5 1. The Decision Conflicts with other Decisions which Hold that the Provisions of 49 U.S.C. §20(11) Must Be Strictly Construed ..... 5 2. The Court Below and the First Circuit Have Entered Contradictory Judgments Based upon Essentially Identical Facts in a Matter Involving a Substantial Federal Question . 9 3. The Decision below Holding that the Provi- sions of 49 U.S.C. §20(11) Do Not Control the Matter of the Common Carrier’s Liabil- ity for Cargo Loss on Government Ship- ments Conflicts with Decisions of this Court and other Courts of Appeals ............ 11 4. The Court Below Did Not Consider the Posi- tion of the Interstate Commerce Commis- sion or the Terms of the Governing Tariff . 14 TABLE OF CONTENTS (Continued) Page 5. The Decision Below Impairs the Uniformity of Application of the Law Governing the Op- erations of Interstate Common Carriers .. 15 Point 2. The Legislative Intent as to Interstate Commerce Commission Regulation of Govern- ment Shipments of Household Goods Is Re- vealed in the Motor Carrier Act of 1980 To Be Contrary to that Found by the Court of Appeals 16 EP YR SLIIA SERA Pd A SEIN OS Aree 5 ee aE Oe 18 The Appendix Findings of Fact and Conclusions of Law of the United States District Court .............. Al Orders of the United States District Court— Howe v. Allied Van Lines ................ Al Hill v. Trans-American Van Service, Inc. .... A12 Faris v. Aero Mayflower Transit Co., Inc. ...A13 Billiter v. Wheaton Van Lines, Inc. ........ Al4 DeFrank v. Pyramid Van Lines, Inc. ....... Al5 Foley v. American Red Ball Transit Co., Inc. . Al6 Cevallos v. Vanpac Carriers, Inc., v. Clemmer Moving and Storage, Inc. ........... ree 2; Blase v. National Van Lines, Inc. v. United mOUONE CE FID. seed oi nce ass Al8 Madonna v. Richardson Transfer & Storage, RGR REICH eons OA Pig EPL Rae eee rie ee A20 Wilkerson v. Engel Van Lines, Inc. v. United I re re cel Gaga ales A21 Acreback v. Rocky Ford Moving Vans, Inc. .. A22 il TABLE OF CONTENTS (Continued ) Page Merkler et ux. v. Aero Mayflower Transit Co., Inc. and United States of America ..... A23 Opinion (Gibbons, C.J.) of the United States Court of Appeals for the Third Circuit Dated May 9, ST Gk ore ae tae ei es Ww a anys we hess A28 ‘Judgment of the United States Court of Appeals for eas ae ee ee tae eee A52 The Federal Statutes Involved— Sections 20(11) and 22, Part I, Interstate Com- merce Act of 1887, as amended, 49 U.S.C. SO gE. . Serer aie aie ae A53 Section 219, Motor Carrier Act of 1935, as amended, Part II, Interstate Commerce Act of 1887, as amended, 49 U.S.C. §319 A60 Sections 10721, 10730, 10922 and 11707, Re- vised Interstate Commerce Act of 1978, 49 U.S.C. §§10721, 10730, 10922 and 11707 A60 Motor Carrier Act of 1980 ................ A68 Rule 40, Federal Rules of Appellate Procedure ...A75 Extract from Justitication of Estimates for FY 1981, Change of Station Travel — Department of the PNR i ar rete ar erare rarer rere ware a A76 Extract from Justification of Estimates for FY 1981, Change of Station Travel, Department of the PO er tera as ove ne a nom cm 9 bene A A77 Extract from Justification of Estimates for FY 1981, Change of Station Travel, U.S. Marine Corps. A78 Extract from Justification of Estimates for FY 1981, Change of Station Travel, U. S. Air Force ...A79 ill .' TABLE OF CONTENTS (Continued ) Page U. S. Government Bill of Lading (household goods and personal effects of James R. Farris) ....A80O U. S. Government Bill of Lading (household goods and personal effects of Norman R. Foley) ... A81 U. S. Government Bill of Lading (household goods and personal effects of Glenn D. Wilkerson) . A82 Extract from Government and Military Rate Tender No. 1-H, effective May 1, 1976 ............ A83 Extract from Government Rate Tender I.C.C. No. 1- ¥, elmpctive Baap 8, FONT ce. ce ca cubase A84 TABLE OF CITATIONS Cases: Page Adams Express Co. v. Croninger, 226 U.S. 491 ht PPP rar oa AT Gem, oP tain 12-13, 14 Adams Express Co. v. Darden, 265 U.S. 265 (1924) 8-9 American Ry. Express Co. v. Lindenburg, 260 U.S. re Ce) 4 sn vce bk ee eee 9 Anton v. Greyhound Van Lines, Inc., 591 F.2d 103 ¢ oe ee ee 9, 10, 11, 13 Caten v. Salt City Movers, 149 F.2d 428 (2nd Cir. PE) as cea ae ke eee ee le ee 9 Chandler v. Aero Mayflower Transit Co., Inc., 374 Ff. 120 (40m Cer. 1087) 2. rc nc dilcas 9 Fourco Glass Co. v. Transmirra Products Corp., 353 eu GP EOD: 6 ob 584 ho cas ae eee 12 Ft. Worth & Denver Ry. Co. v. United States, 242 FP .e Fee Ce Sos BOO) 0-04 eo ulea epee 9, 13, 14 iv —_— a TABLE OF CITATIONS (Continued ) Page Glickfield v. Howard Van Lines, Inc., 213 F.2d 723 i ER a el Ga hw st ca eke ee ks g Hollerbach v. United States, 233 U.S. 165 (1914) 13 New York, N.H. & H. R.R. Co. v. Nothnagle, 346 ee OO Gt ss ale aA va ee ys 7-8, 9 Pennsylvania R.R. Co. v. Hughes, 191 U.S. 477 SE SS gil Ne ea Phat a Gi SGN es et yo. = 12 Rocky Ford Moving Vans, Inc. v. United States, 501 op Mh (De A . . } Rh or 13 Southwestern Sugar & Molasses Co., Inc., v. River Terminals Corp., 360 U.S. 411 (1959) ..... 8, 14 St. Louis, B. & M. Ry. Co. v. United States, 268 U.S. RR ET NG alae a anne Ae Pte he ae PEPE 13 Strickland Transportation Co. v. United States, 334 Pf Rey fo. Ee AR) Ge 7.- i United States v. Rutherford, 422 U.S. 544 (1979) 7, 17n Zimmerman v. Allied Van Lines, Inc., 317 F.2d 72 EI UE SE en ae a rere ee 9 Interstate Commerce Commission (Motor Carrier) Cases: Practices of Motor Common Carriers of Household Goods, 95 M.C.C. 138 (1964) .......... 7. .14, 16 Federal Statutes: Part I, Interstate Commerce Act of 1887, as amended, §§20(11) and 22, 49 U.S.C. EE ONE Soy sy bla oko wo ee 5 et seq. Motor Carrier Act of 1935, as amended, Part II, In- terstate Commerce Act of 1887 as amended, Se ee Pa, OO 8 oe oe se he ewe 5 et seq. TABLE OF CITATIONS (Continued) Page Revised Interstate Commerce Act of 1978, 49 id cs EERE NOOR on ba eb eee ee kee es 5n Motor Carrier Act of 1980 .............. lin, 16-18 Federal Rules of Appellate Procedure: ER ee act en aoe gk ee aie es oa ea 16n vl IN THE SUPREME COURT OF THE UNITED STATES October Term, 1980 No. DONALD D. HOWE, ET AL., Petitioners, v. ALLIED VAN LINES, INC., ET AL., Respondents* PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT To The Honorable, the Chief Justice of the United States and the Associate Justices of the United States Su- preme Court: “Other parties involved in this petition are: Jerry P. Hill, Petitioner, v. Trans-American Van Service, Inc., Re- spondent United States Automobile Association, Petitioner, v. Aero May- flower Transit Co., Inc. and United States of America, Respon- dents Dale DeFrank, Petitioner, v. Pyramid Van Lines, Inc., Respondent Norman R. Foley, Petitioner, v. American Red Ball Transit Co., Inc. Respondent Donald E. Madonna, Petitioner, v. Richardson Transfer & Storage Co., Inc., Respondent Glenn D. Wilkerson, Petitioner, v. Engel Van Lines, Inc., and United States of America, Respondents George J. Merkler and June D. Merkler, Petitioners, v. Aero Mayflower Transit Co., Inc., Respondents Henry Cevallos, Petitioner, v. Vanpac Carriers, Inc., and Clemmer Moving & Storage Inc., Respondents United Services Automobile Association, Petitioner, v. Wheaton Van Lines, Inc., Respondent. William E. Blase and United Services Automobile Association, Peti- tioners, v. National Van Lines, Inc., and United States of Amer- ica, Respondents. United Services Automobile Association, Petitioner, v. Rocky Ford * Moving Vans, Inc., and United States of America, Respon- dents. 2 The Petitioners, Donald D. Howe, et al., pray that a Writ of Certiorari issue to review the judgment of the United States Court of Appeals for the Third Circuit en- tered in the above entitled cases on May 9, 1980. OPINIONS BELOW The findings of fact and conclusions of law of the United States District Court for the Eastern District of Pennsylvania, orally delivered on March 29, 1979, are unreported. The transcript is printed in the Appendix, which is hereafter cited by its page as “A- ” (Al). The opinion rendered by the United States Court of Appeals for the Third Circuit, dated May 9, 1980, affirming the judgment of the District Court is not yet officially re- ported and is printed in the Appendix at A25. STATUTES INVOLVED See Appendix at A53. 3 JURISDICTION The Judgment of the United States Court of Ap- peals for the Third Circuit was entered May 9, 1980, and this Petition for Certiorari was filed within ninety days of that date. No petition for rehearing was filed. This Court’s jurisdiction is invoked under 28 U.S.C. §1254(1). QUESTION PRESENTED Whether interstate motor common carriers may limit their liability for loss or damage to household goods of members of the armed services shipped at govern- ment expense without having complied with the provi- sions of (former) 49 U.S.C. §20(11), now 49 U.S.C. §§11707 and 10730 (1980). 4 STATEMENT OF THE CASES The Supreme Court is requested to review the judg- ment rendered by the United States Court of Appeals for the Third Circuit disposing of the appeals taken in 12 cases which had been combined as related cases in the United States District Court for the Eastern District of Pennsylvania and consolidated for purposes of briefing and argument in the Court of Appeals. Reduced to its simplest terms, the question common to all the cases is: If an interstate motor common carrier’s liability for loss or damage to its household goods cargo is virtually abso- lute, and it may not limit that liability by agreement ex- cept under closely circumscribed conditions, is the situ- ation different when the household goods are owned by members of the armed services and the Department of Defense is paying the shipping charges? In each of the 12 cases the serviceman’s household goods, shipped at government expense on changes of Station or separation from the service, were lost or dam- aged. Suit was brought against the carriers for the full actual loss under 49 U.S.C. §20(11) (1976), Federal ju- risdiction being invoked under that statute as well as 28 U.S.C. §1337 (1948). The carriers conceded liabilility but contended that they had effectively limited that li- ability to the amount of 60 cents per pound per article by the tender submitted to the Department of Defense. The parties in all the cases agreed that since the material facts were substantially similar and undisputed, the Dis- trict Court would decide the controlling and common is- sue on the stipulation of facts filed in one case: Donald D. Howe v. Allied Van Lines, Inc. and that decision would apply to the others. The District Court found that the carriers had effectively limited their liability and en- tered judgment in all cases accordingly. The Court of Appeals for the Third Circuit affirmed on May 9, 1980. 5 REASONS FOR GRANTING THE WRIT POINT 1 The Decision Exempts a Major Operation of the Nation’s Moving Van Industry from the Liability for Cargo Damage Placed upon Such Common Carriers by the Controlling Statute and is in Direct Conflict with the Decisions of this Court and Other Courts of Appeals as Well as the Position of the Interstate Commerce Com- mission. 1. The Decision Conflicts with Other Decisions which Hold that the Provisions of 49 U.S.C. §20(11) Must Be Strictly Construed. The statute applicable to common carriers, declar- ing unlawful and void any attempt by any interstate common carrier to limit its liability for property loss, is Section 20(11) of the Interstate Commerce Act, the popularly named Carmack Amendment, Act of June 29, 1906, Chap. 359, 34 Stat. 595 as amended by the Cummins Amendment, Act of March 4, 1915, Chap. 176, 38 Stat. 1196, and the Second Cummins Amend- ment, Act of August 9, 1916, Chap. 301, 39 Stat. 441, 49 U.S.C. §20(11). Motor common (but not contract) carri- ers were brought within the coverage of this section of Part I of the interstate Commerce Act by Section 219 of the Muvuior Carrier Act of 1935 (Part II of the Interstate Commerce Act), 49 U.S.C. §319.! The complete text is printed at A53. Its parts which are pertinent here are set out in the opinion of the Court cf Appeals at A31. In paraphrase, the Carmack Amend- ment imposes upon any interstate common carrier vir- tual absolute liability for the full actual loss or damage to 1. These cases arose before the Interstate Commerce Act was revised and recodified without substantive change by the Revised Interstate Commerce Act of October 17, 1978, 49 U.S.C. §§10101- 11916 (A60) which was then amended by the Motor Carrier Act of 1980, infra. 6 its cargo”. The Cummins Amendment prohibits the car- rier from attempting to limit its liability or the amount of the damages and declares any such attempt, without re- spect to manner or form, to be unlawful and void’. The Second Cummins Amendment added the proviso con- taining the two exceptions to Cummins’ general pro- scription of liability limitation: first, in the case of bag- gage carried on passenger trains and second, in the case where the Interstate Commerce Commission, by ex- press order, authorizes the carrier to file tariffs contain- ing rates based upon .he declared or released value of the goods’. The tariffs are also required to contain a spe- cific reference to the released rates order? and the decla- ration or released value of the goods must be declared in writing by the shipper or agreed upon in writing.® The Second Cummins proviso of the Carmack Amendment limits to two in number the exceptions to the Amendment’s prohibition of the common carrier’s attempt to limit its liability for property damage or loss. It does not exempt from the Amendment's proscriptive provisions, nor, for that matter, does it make any refer- ence to, a common carrier when transporting household goods on bills of lading issued by one of the armed serv- ices. Nevertheless, the decision below holds that under such circumstances a Carrier’s limitation of its liability to 60 cents per pound per article is lawful and valid desp'te the provisions of the statute, even though it is undisputed that the governing tariff was not filed in 2. Now 49 U.S.C. §11707(a)(1) (1978) (A66). 3. Now 49 U.S.C. §11707(c)(1) (1978) (A67). 4. Now 49 U.S.C. §11707(c)(3) (1978) as to baggage carried by railroads (A67) and 49 U.S.C. §10730 (1978) as to other property (A62). The latter section was further amended by Section 12 of the Motor Carrier Act of 1980, infra, to repeal the requirement that the Interstate Commerce Commission must authorize limitations of li- ability, except for shipments of household goods, see infra, pp. 16- 17. 5. Now 49 U.S.C. §10730(a) (1980) (A73). 6. Now 49 U.S.C. §10730(b)(1) (1980) (A73). 7 compliance with an order of the Interstate Commerce Commission expressly authorizing rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the prop- erty. The Department of Defense is the nation’s single largest shipper of household goods. Practices of Motor Common Carriers of Household Goods, 95 M.C.C. 138, 145 (1964). In 1960, the Department ordered 510,600 shipments, ibid. In Fiscal 198i it anticipates that it will arrange for 459,681 shipments at an expenditure of $1,004,179,000.’ Therefore, the decision below has the effect of exempting the major portion of the business of household goods common carriers and the largest class of claimants for damage or loss to their personal effects, id. at 141, from the operation of the statute by which Congress intended to impose a nationally uniform policy governing interstate carriers’ liability for property loss, New York, N.H. & H.R.R. Co. v. Nothnagle, 346 U.S. 128 (1953), a uniformity of application which is essen- tial in a regulated transportation industry. Strickland Transportation Co. v. United States, 334 F. 2d 172 (5th Cir., 1964), The decision is not consonant with the rule of statu- tory construction affirmed by this Court in the recent case of United States v. Rutherford, 442 U.S. 544, 555 (1979), which held that “[o]nly when a literal construc- tion of a statute yields results so manifestly unreason- able that they could not fairly be attributed to congres- sional design will an exception to statutory language be judicially implied.” Also see note 11. It is in conflict with all the decisions of this Court involving the construction of the provisions of the Carmack Amendment. In New York, N.H. & H.R.R. Co. 7. Compiled from “Justification of Estimates For FY 1981” submitted to Congress with the proposed budget by the Departments of the Army, Air Force and Navy and the U.S. Marine Corps, January, 1980 (A76-79). 8 v. Nothnagle, supra, this Court held that the Second Cummins proviso exempting “baggage carried on railroads” from the Carmack Amendment’s prohibition of liability limitation agreements cannot be extended to baggage carried by a redcap service for which a separate charge is made. (‘Clearly that limitation of liability is voided by the Act urless saved by the statutory proviso.” Id. at 134.) In Southwestern Sugar & Molasses Co., Inc. v. River Terminals Corp., 360 U.S. 411, 420 n. 9 (1959), the Court held that when Congress has declared by stat- ute the circumstances under which carriers may con- tract for release from or limitation of liability, or rules governing the liability or exemption from liability, no agreement in derogation from them, even if embodied in a tariff, is valid. In Adams Express Co. v. Darden, 265 U.S. 265 (1924), the Court emphasized its refusal to accomodate any implied exception whatsoever to the imposition of virtual insurer’s liability. There the carrier argued that if the rates were based upon the released value of the goods and the limitation were then found to be ineffec- tive, the shipper would, in effect, be the beneficiary of preferential treatment in that he was charged a lower rate for full liability while the other shippers were paying the same rate for limited liability. This, the carrier ar- gued, w2s a discriminatory practice which the Interstate Commerce Act denounces as unlawful and, therefore, if the Court imposed full liability on the carrier it would be aiding the shipper in enforcing rights arising out of an illegal transaction. The Court, speaking through Mr. Justice Brandeis, said: “The short answer to this, and to the company’s other arguments, is furnished by the comprehen- sive terms of the statute. From them appears the in- tention of Congress to make the carrier liable for the full actual loss, regardless of any agreement or rep- resentation of the shipper. Its purpose is so accu- 9 rately stated that discussion could not make it clearer. It might confuse.” Id, at 268. In none of the household goods’ shipments from which the twelve cases here devolve was the governing tariff filed pursuant to the authority of a released rates order issued by the Interstate Commerce Commission in accordance with the Second Cummins proviso’s rules for the effective limitation of the carrier’s liability. There- fore, the decision below conflicts with those decisions in which this Court and the other Courts of Appeals felt im- pelled to point out that a carrier must affirmatively estab- lish, or the record must presume, that the shipment was governed by a tariff filed in compliance with the Com- mission’s released rates order before the carrier may in- voke the defense to the claim for cargo loss that it had lawfully limited its liability: New York, N.H. & H. R.R. Co. v. Nothnagle, supra; American Ry. Express Co. v. Lindenburg, 260 U.S. 584 (1923)e""... for, if petitioner was not duly authorized by the Commiission, its action in attempting to limit its liability was unlawful.” Id. at 588- 89; Anton v. Greyhound Van Lines, Inc., 591 F.2d 103 (1st Cir. 1978); Caten v. Salt City Movers, 149 F.2d 428 (2nd Cir. 1945); Chandler v. Aero Mayflower Transit Co., Inc., 374 F.2d 129 (4th Cir. 1967); Ft. Worth & Denver Ry. Co. v. United States, 242 F.2d 702 (5th Cir. 1957); Strickland Transportation Co. v. United States, supra; Glickfield v. Howard Van Lines, Inc., 213 F.2d 723 (9th Cir. 1954); Zimmerman v, Allied Van Lines, Inc., 317 F.2d 72 (9th Cir. 1963). 2. The Court Below and the First Circuit Have Entered Contradictory Judgments Based upon Essentially Identical Facts in a Matter Involving a Substantial Federal Question. Common to all the cases of which this petition seeks review is the failure of the carriers to file the governing tariffs under the authority of a released rates order of the 10 Interstate Commerce Commission so as to comply with that requirement of the Second Cummins proviso of the Carmack Amendment. In three of the cases, the carriers also failed to comply with another requirement: that “the value (be) declared in writing by the shipper or agreed upon in writing as the released value of the property.” 49 U.S.C. §20(11) Anton v, Greyhound Van Lines, Inc., supra, decided by the First Circuit on December 21, 1978, also involved a claim by an Air Force officer for damage to her house- hold goods shipped by motor common carrier on a gov- ernment bill of lading under Government and Military Rate Tariff No. 1-F, which contained rates purportedly based on a 60 cents per pound per article valuation. The bill of lading contained the following clause, “household goods released at a valuation of cents per pound per article.” (Id. at 105.) The First Circuit held that the ex- tent of Greyhound’s liability was controlled by the Carmack Amendment and that a “(1)imitatioref liability can be effected only when in compliance with an ICC ‘order authorizing special rates dependent upon either a declaration of value by the shipper in writing or a re- leased value in writing’ ” (Id. at 107) (emphasis in origi- nal). Since the declared or agreed value of the goods had not been inserted in the blanks, the carrier had not com- plied with the requirement that the value be in writing. The limitation of liability was, therefore, ineffective and the carrier was liable for the full actual loss. In three of the cases which are joined in this peti- tion: James R. Faris v. Aero Mayflower Co., Inc. v. United States of America, Third-Party Defendant — United States Automobile Association, Petitioner: Nor- man R. Foley, Petitioner v. American Red Ball Transit Co., Inc.; and Glenn D. Wilkerson, Petitioner v. Engel Van Lines, Inc. v. United States of America, the circum- stances are identical to those in Anton v. Greyhound Van Lines, Inc. None of the bills of lading (A80-82) make any reference whatsoever to a declared value or re- 1] leased value or even to any intention to ship on any limi- tation of carrier liability.® Therefore, there is an irreconcilable conflict be- tween the First Circuit’s decision in Anton v. Greyhound Van Lines, Inc., and these three cases since the gravaman of Anton was the absence of any writing as to a released value in a shipment of household goods on a government bill of lading. The conflict between Anton and all the cases included in this petition is also irreconcilable since in none of these cases was the gov- erning tariff sanctioned by an Interstate Commerce Commission released rates order and the basis of the de- cision in Aton was the First Circuit’s conclusion: “|Alrrangements limiting liability on the part of interstate carriers is a carefully defined exception to the general thrust of Section 20(11) of the Inter- state Commerce Act placing on the carrier absolute liability for loss or damage of a shipper’s goods. Con- sequently, such arrangements must be carefully scrutinized and where they fail, as in the present case, to fully comply with the provisions of the Carmack Amendment, it is clear they are ineffective to limit a carrier's liability.” Id. at 109. 3. The Decision below Holding that the Provisions of 49 U.S.C. §20(11) Do Not Control the Matter of the Common Carrier’s Liability for Cargo Loss on Gov- ernment Shipments Conflicts with the Decisions of this Court and Other Courts of Appeals. The thrust of the decision below is that Section 22 of the Interstate Commerce Act, 49 U.S.C. §22, supercedes the provisions of the Carmack Amendment, Section 20(11) of the Act, to the extent that the latter does not control the matter of the liability of common carriers when the shipper is the United States. 8. The requirement that the declaration or agreement be in writing is retained in the Motor Carrier Act of 1980, 49 U.S.C. §10730(b)(1) (1980) (A73),. 12 Section 22 of the Interstate Commerce Act of 1887, as amended, authorizes the carrier to transport property free or at reduced rates for the United States and State, or municipal governments, to and from fairs and exposi- tions, or for charitable purposes. In the view of the Court below, this section empowers common carriers who are made subject to the provisions of 49 U.S.C. §20(11) by Section 219 of the Motor Carrier Act of 1935, 49 U.S.C. §319, to limit their liability for government carriage without the necessity of complying with the Second Cummins proviso conditions of Section 20(11). Section 22 is silent as to the matter of the liability of the carrier for cargo loss or damage.’ On the other hand, Section 20(11) deals exclusively with this matter and expressly provides for the limitation of the carrier’s liability on the specific condition that the transportation of the goods be on rates based on declared or agreed values. Accord- ingly, the decision of the Court below conflicts with the decision of this Court in Fourco Glass Co. v. Transmirra Products Corp. 353 U.S. 222 (1957), where it was held that however inclusive may be the general language of the statute, it will not be held to apply to a matter specifi- cally dealt with in another part of the same enactment. When the Court below held that Section 22 empow- ered the carrier to limit its liability, the decision con- flicted with that of this Court in Pennsylvania R.R. Co. v. Hughes, 191 U.S. 477 (1903), where it found that the Interstate Commerce Act, containing the antecedent of the present Section 22 (A34), was enacted in 1887 as an expression of Congress’ intent to prevent discrimination as to services and rates and that it was not intended to deal with matters involving carrier liability for lost or damaged goods. Petitioners’ position here is also supported by dicta in Adams Express Co. v. Croninger, 226 U.S. 491, 507 9. Section 22 was re-enacted without substantive change in 49 U.S.C. §10721 (1978) without reference to the right of the carrier to limit its liability for property loss (A60), 13 (1913), where this Court held that Section 22 of the Act of 1887 was evidently only intended to continue in exist- ence such other rights or remedies for the redress of some specific wrong or injury, whether given by the In- terstate Commerce Act or common law, not inconsistent with the rules and regulations prescribed by the provi- sions of the Act. It would seem, also, that the decision below cannot be reconciled with the decision in Hollerbach v. United States, 233 U.S. 165 (1914), where it was held that the construction and interpretation of government contracts are as in the case of contracts between individuals or that in St. Louis, B. & M. Ry. Co. v. United States, 268 U.S. 169, 173 (1925), where the Court said: “In respect to furnishing transportation, a railroad crdinarily bears to the government the same relation that it does to a private person using its facilities.” The basis of the decision of the Third Circuit Court of Appeals is its view that the provisions of 49 U.S.C. §20(11) do not control the matter of liability for cargo loss when a common carrier is transporting goods on government bills of lading. Therefore, it conflicts di- rectly with decisions of the Courts of Appeals for the First, Fifth and Eighth Circuits: Anton v. Greyhound Van Lines, Inc., supra; Ft. Worth & Denver Ry. Co. v. United States, supra; Strickland Transportation Co. v. United States, supra; and Rocky Ford Moving Vans, Inc. v. United States, 501 F.2d 1369 (8th Cir. 1974). Both Anton v. Greyhound Van Lines, Inc. and Rocky Ford Moving Vans, Inc. v. United States involved shipments of the household goods of Air Force officers on government bills of lading. In the former, the First Circuit held the carrier liable for the full actual loss to the goods because it had not complied with the condi- tions of the Second Cummins proviso of Section 20( 11). In the latter, the Eighth Circuit held that the carrier had 14 effectively limited its liability in accordance with the re- quirements of the statute. In Ft. Worth & Denver Ry. Co. v. United States, the Fifth Circuit specifically pointed out that 49 U.S.C. §22 is a rate section authorizing free or reduced rates for the United States while 49 U.S.C. §20(11) is the section ap- plicable to the measure of damages for loss of or damage to goods. 242 F.2d at 703. 4. The Court below Did Not Consider the Position of the Interstate Commerce Commission or the Terms of the Governing Tariff The decision of the Court below did not consider the position of the Interstate Commerce Commission on the issue as to whether the liability of household goods com- mon carriers are subject to Commission regulation, al- though it was called to the Court’s attention. The Interstate Commerce Commission has taken the position that common carrier’s liability for loss or damage to household goods shipped by the Department of Defense is subject to Commission regulation. Prac- tices of Motor Common Carriers of Household Goods, supra, 7. In Southwestern Sugar and Molasses Co. v. River Terminals Corporation, supra, this Court held that even though the issue in a case is one that appears to be for judicial rather than administrative resolution, agencies created by Congress for regulating the subject matter should not be passed over, particularly when economic factors are involved. Obviously such economic factors are involved in cases such as those here when the rates are required to be proportioned to the amount of the risk. Adams Express Co. v. Croninger, supra at 509-10. This matter is particularly appropriate for both judi- cial and Interstate Commerce Commission resolution since the terms of the governing tariff refer to the meas- ure of the carrier’s liability. 15 Although the opinion supporting the judgment of the Court below is silent in this regard, it was argued and the record shows that the terms and conditions of Government and Military Rate Tender No. 1-H, effective May 1, 1976, which was stipulated to be the tariff gov- erning the damaged shipment, brought the matter of the carrier’s liability within the provisions of the Carmack Amendment. Item 1 of the tariff states: “The carrier accepts property for shipment on the government bill of lading under the following terms and conditions: “(a) Carrier’s legal liability for loss or damage to goods will be the same as set forth in the In- terstate Commerce Act (Title 49, U.S.C. §20(11)), limited to the amount per pound per article (See Note) shown herein.” (A83) The identical provision appears in Government Rate Tender I.C.C. No. 1-Y, May 1, 1977 the governing tariff in those shipments here to which MRT No. 1-H did not apply. (A84) 5. The Decision below Impairs the Uniformity of Appli- cation of the Law Governing the Operations of In- terstate Common Carriers. For the first time in the 74 years since Congress en- acted into law what was expected to be the uniform poli- cy regarding the liability of the nation’s railroads for cargo loss and in the 45 years since that policy was ap- plied to interstate common carriers by motor vehicle, a court has exempted from the ambit of that policy certain common carriers when enaged in the transportation of goods at the behest of a particular shipper. With this decision the Third Circuit Court of Ap- peals has caused the measure of the liability of interstate common carriers for loss or damage to the household goods of servicemen and women to be dependent upon the circuit in which suit is brought. 16 POINT 2 The Legislative Intent as to Interstate Commerce Commis- sion Regulation of Government Shipments of House- hold Goods Is Revealed in the Motor Carrier Act of 1980 To Be Contrary to that Found by the Court of Ap- peals. The basis of the decision below is the Court’s view as to the intent of Congress in the enactment of Sections 20(11) and 22 of the Interstate Commerce Act. In es- sence, the Court concluded that Congress did not intend to include in the Act’s regulatory design, which requires Interstate Commerce Commission authorization before common Carriers may limit their liability, the transporta- tion of household goods for the government because the government, as the shipper, had sufficient strength to reach a fair bargain (A51). In arriving at its conclusion, the Court was impelled to resort to such diverse sources and analogies as the Act of June 15, 1866 which dealt with the special relation- ship of the railroads (but not motor common carriers) and the government under the land grant statute (A36- 37) as well as the Senate report accompanying a bill which was not enacted into law (A41-42),. The Court’s decision was filed on May 9, 1980. Therefore, the Court did not have the benefit of the leg- islative intent in regard to the main issue of these cases as was subsequently revealed in the provisions of the Motor Carrier Act of 1980, P.L. 96- , July 1, 1980, ae. In the 1980 Act, the latest amendment in the successive generations of the carrier legislation appear- ing in Title 49, United States Code—Transportation, Congress has taken specific note of the transportation of 10. Since the statute was enacted more than 14 days after the entry of the judgment of the Court of Appeals, petitioners were barred from filing a petition for rehearing by Rule of Appellate Pro- cedure 40 (A75). 17 household goods by motor common carrier for the gov- ernment. Section 5(b)(4)(c) exempts from the new motor carrier entry policy “... transportation for the United States government of property other than used house- hold goods .. .” (A70) (emphasis added). Clearly, Con- gress intended that common carriers transporting used household goods for the United States government are to be subject to the same rules as are other carriers. Section 12 amends 49 U.S.C. §10730, the recodification of the second Cummins proviso in the re- vised Act of 1978, by repealing the provisions which re- quire that carriers may legally limit their liability only when so authorized by the Interstate Commerce Com- mission, but leaving specifically, as the sole exception to the repeal, “a motor common carrier of household goods.” (A73) Since Section 2 announces that it is the purpose of the Act to reduce unnecessary regulation by the Federal Government (A68). the conclusion is inescapable that when the Act retained the requirement of Interstate Commerce Commission authority for the limitation of the liability of motor common carriers of household goods without exception, limitation or qualification, while excluding “any other motor common carrier of property” from such regulation, it indicated that Con- gress does not consider the Commission’s oversight of the liability of household goods carriers for lost or dam- aged cargo to be unnecessary regulation, even when the shipment is at government expense. !! By singling out household goods carriers from all others, Congress is expressing its concern for this aspect of the transportation business in 1980, just as the Inter- state Commerce Commission expressed its concern in 1964 when it found that 24 percent of all shipments of 11. “Exceptions to clearly delineated statutes will be implied only when essential to prevent ‘absurd results’ or consequences ob- viously at variance with the policy of the enactment as a whole”: United States vs. Rutherford, supra, at 552. 18 household goods resulted in claims for loss or damage, Practices of Motor Common Carriers of Household Goods, supra, at 166, and that complaints against house- hold goods carriers outnumbered those against all other carriers combined. Id. at 141. Accordingly, Petitioners urge the review of the deci- sion of the Court of Appeals to consider the materiality of the Act’s revelation of the legislative intent and its “ex- plicit direction (to the Interstate Commerce Commis- sion) for the regulation of the motor carrier industry and well-defined parameters within which it may act pursu- ant to Congressional policy.” Section 3(a), Motor Carrier Act of 1980 (A74). CONCLUSION For the foregoing reasons, Petitioners respectfully request that a Writ of Certiorari should be issued to re- view the judgment order of the United States Court of Appeals for the Third Circuit. Leonard S. Wissow Counsel for Petitioners Al Appendix IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action 78-1717 DONALD D. HOWE v. ALLIED VAN LINES Philadelphia, Pennsylvania March 29, 1979 Before: HON. DONALD W. VanARTSDALEN, J FINDINGS OF FACT AND CONCLUSIONS OF LAW THE COURT: In this case I will make as findings of fact the stipulations of fact that have been filed. I have read and examined all of the briefs, | think with some care, and have heard the arguments of coun- sel. It seems to me that his question really boils down to a determination of the application of the two sections of Title 49, being Section 2011 and Section 22, as well as perhaps a consideration of the factual background upon which these parties entered into the commercial ar- rangements that occurred. I am sure that any decision that I make, regardless of what that decision is, will be ultimately appealed by one side or the other. I think, therefore, that it is unnec- essary to go into a long explanation as to my reasons for the decision that | am going to make. A2 I conclude that the provisions limiting the defend- ants liability under this contract shipment to sixty cents per pound, per article, those conditions are valid and en- forceable and base this primarily on Section 22. Therefore, I will grant the defendant’s motion for summary judgment and deny plaintiff's corresponding motion for partial summary judgment. It’s clear in this case that the defendant is liable and the only question before the Court on the ultimate issue is the extent of the liability, that is to say, whether the defendant is liable for the full value of the plaintiff's de- stroyed household goods, or for sixty cents per pound, or as was argued in some of the briefs, possibly as a third alternative, of a dollar twenty-five cents per pound, I be- lieve. The limitation of the liability was an expressed term of the contract between the shipper and the carrier and therefore it seems to me that the question really boils down to whether the parties, in so limiting their liability, acted lawfully within the scope of the Congressional en- actments governing the conduct of common carriers. Now as plaintiff points out, Section 2011 clearly prohibits any limitation of liability by common carriers. However, this provision is not without exceptions and of course the basic exception is contained in Section 2011 itself, where it permits limitations of liability that have been expressly approved by the shipper and the I.C.C., as long as the reduced tariff schedule specifically men- tions such I.C.C. authorization. There are certain rather technical requirements to come within the exception of Section 2011. Now there is a question as to whether or not the car- rier, the carriers in this case complied with Section 2011 sufficiently to come within its terms. There’s also another possible exception which we are concerned with, and that is Section 22 which pro- vides, in its relevant portion, that nothing in this chapter shall prevent the carriage, storage or handling of prop- erty free or at reduced rates for the United States. A3 Now as I understand plaintiff's theory concerning Section 22, it is that although Section 22 undoubtedly permits reduced rates, it makes no mention whatsoever of reducing liability, and it therefore cannot be said to authorize corresponding limitations on liability. Plaintiff argued therefore that even where rates are reduced, pursuant to Section 22, liability must remain permanently constant under Section 2011. That part of the argument I cannot accept. It is not clear to me that Section 22’s reference to reduced rates was meant to preclude correspondingly re- ducing liability. The word rates, as used throughout the statute, and tariffs that are filed, that are primarily con- cerned with rates, include such things as the types of commodity, the areas or distance they are to be shipped, and are of necessity influenced by a multitude of factors, including the extent of liability to which they may be subject. As I see it, the freedom to reduce rates logically and necessarily implies a freedom to reduce liability in con- sideration thereof. If liability would not also be flexible under Section 22, then it would seem to me that the freedom to reduce rates would be an empty privilege in most instances; perhaps attractive to carriers who might be motivated by pure charity or patriotism, which I think certainly was not within the Congressional contemplation or possibly because of anticipated high volume of business. But it does seem to me that the only logical reason for a carrier, from a purely business standpoint, to reduce rates to the United States, would be for the purpose of in some way reducing its liability. As I see, Section 22 does not in any way refute the view that there is a symbiotic relationship between the rates and liability. It makes no mention, Section 22 makes no mention of liability at all. Moreover, Section 2011, which does specifically deal with liability, I believe supports this view. It addresses liability repeatedly in A4 terms of the rates that carriers may charge, suggesting that Congress did indeed regard the terms of rates and liability as mutually interdependent. I agree with the decision of the Comptroller General that there is no language in the Act clearly indicating that Congress intended in any way to limit the govern- ment’s freedom to contract for its transportation needs and upon such terms and conditions as it deemed appro- priate. Congress has remained deferential to the govern- ment in this area — that is indicated, I believe, by a 1957 Senate report which is referred to, I believe, in the briefs as No. 410 at page 1785, which expresses concern for the exigencies of various agencies, especially those re- lated to national defense. It appears to me therefore that Congress intended, and as stated in United States vs. Well Fargo, at 161 Federal Supplement, I believe that is, 606, at 617, that Section 22 should act to exclude from the operation of the Act the carriage, storage and handling of property free or reduced rates for the United States. Plaintiff has cited a number of cases to support the contention that Section 22’s reduced rates provision did not also permit reduced liability. None of these cases, as I read them, are directly in point, nor are they particularly helpful in construing the relationship between Sections 2011 and 22 under the facts presented in this case. Plaintiff suggests that even if Section 22 permits both reduced rates and limited liability for government shipments, the parties ruled out the possibility of limited liability by expressly incorporating Section 2011 into the contract. Item 1 of the — whether we call it tariff or tender, | might say I think that’s a matter of semantics without substantial difference, although counsel apparently think that it may make substantial difference. AS Item 1 of MRT-1-H, which I conclude is the effec- tive tariff or tender by the carriers to the government for military transportation provides that carriers’ legal liabil- ity for loss or damage to goods will be the same as set forth in the Interstate Commerce Act, citing Title 49 U.S.C. at Section 2011, limited to the amount per pound, per article shown herein. This provision is to me obviously not inconsistent with the desire to limit liability. Clearly the parties intended that all provisions of Section 2011 should apply, except that liability should be limited as specified. Plaintiff argues also that to permit limit liability, when the United States is the shipper, would compel the absurd results of permitting carriers to limit their liabil- ity against all other shippers specially mentioned in Sec- tion 22, such as homeless persons and charitable organ- izations and so on. This matter is not presently before me and I will not attempt, at this point, to determine the status of any other parties other than the United States government with respect to the right of carriers to limit their liability. I believe, however, that the language of Section 22, and Congressional intent behind it leads to the conclu- sion when the United States is the shipper, carriers may limit their liability in return for charging reduced rates. In holding that Section 22 authorized reduced li- ability, as well as reduced rates, | am not reaching the question of whether this contract qualifies for limited li- ability under the provisions expressly contained in Sec- tion 2011. I believe, however, that the requirements of that proviso have also been met. As I understand it, there is a release rates authoriza- tion referred to, I believe, as MC-505. MC-505 was expressly referred to in the tariff of the defendant in this case for its commercial customers or commercial rates under 175-C, and the rate tender of A6 MRT-1-H specifically referred to its tariff 175-C and to its commercial rates. It seems to me that although the statute does re- quire that the matter be expressly referred to, that so far as the government is concerned, considering that the government is the shipper and that there is not the Con- gressional concern of two parties not being on equal footing in negotiating such transactions and agree- ments, that there is a sufficient, specific and express ref- erence to the rates release authorization. In addition to that, of course, the government-as- shipper and plaintiff have expressly agreed to this limita- tion of the carriers’ liability. And as I pointed out before, it is my view Section 22 gives the government that right and it is primarily based on Section 22. I don’t specifically hold that there has been a fully compliance with Section 2011, but it is my view that there has been sufficient compliance. Section 2011 appears to embody Congress’ rather paternalistic attitude toward shippers who may be in a poor bargaining position or who might, or — and also | would say to prevent the carriers from unilaterally limit- ing their liability under matters that are the type of con- tracts of adhesion and that type of thing and Congress, | believe, was of the view that the Interstate Commerce Commission should have strict control over limitations of liability for the purposes of protecting particular types of shippers, namely the ordinary commercial shipper. I believe that this has been suggested by the Inter- state Commerce Commission in the practices of motor common carriers of household goods at 95 M.C.C. 138, in 1968. The statute would appear to make the Interstate Commerce Commission inte a sort of watchdog or guardian shippers against all limitations of liability that have not been specifically approved by the Interstate Commerce Commission. \ A7 In the case of an agreement between the United States and the carriers, it seems to me that the parties are certainly of equal bargaining power and Congress’ concerns for the ordinary shipper would be entirely dif- ferent. It would seem to me that Section 2011's protection is completely unnecessary and would, in fact, if given the interpretation sought by plaintiff, would, in fact, very seriously limit the rights of the government to enter into contracts at prices most favorable to the government. There have been some cases also that have held that if the shipper is sophisticated and knowledgeable in the area that even though there may be some minor tech- nical violations or lack of full compliance with Section 2011, or even though the agreement may not stricken contorm to the requirement of the statute, that neverthe- less they would be, the reduced liability would be upheld. For example, the case of Semi-Metals Incorporated vs. Pinter Brothers at 360 Atlanta 2d 385-(1976). The controlling contractual document in this case was the government’s bill of lading which was required by gov- ernmental regulations and statues and under the exist- ing tariff. I think it’s clear that the defendants and the govern- ment may be regarded as possessing equal bargaining power and the government not only consented to the sixty cents per pound limitation of liability, but actually dictated it in the sense that it required that shipments be made at the lowest possible rate. It is probable that equitable considerations have lit- tle, if any effect, since we are concerned only with the construction of statutes. But | think it is proper to point out that there cer- tainly was no unfair advantage taken of either the ship- per, being the government, or the consignee service- man. A8 It is clear from the stipulation of facts that the serv- iceman was fully aware of the limitation of liability. He was afforded an opportunity to ship at the rates where the liability would not be so limited. And in addition to that, he took advantage of the right to secure additional insurance from an insurance carrier to cover any dam- age in excess of his liability. I think to apply Section 2011 to the present case would extend this Section well beyond the class of per- sons and beyond the type of conduct which Congress was concerned with providing protection. I think it may be of some significance that there has been a limitation of liability and rates dependent upon the released value of the property for a long period of time within the industry. Both sides have accepted the benefits of this arrangement, government by paying re- duced rates and carriers by risking proportionately less liability. I can see no unfairness to either side in permitting this long established and accepted practice to continue. The plaintiff himself named herein, Donald Howe, was fully protected against loss. The fact that this is essentially a subrogation claim does little to suggest that the individual serviceman or servicemen require protection of Section 2011, nor do | see any obvious unfairness to the insurance carrier, the real party in interest. It obviously had actual notice of the limitation of li- ability contained in the shipping contract. It had issued policies in the past for profit under similar circumstances. Thus to the extent that there may be equitable con- sideration, it is clear that all of them would favor a non- recovery for the plaintiff in this case based upon an unlimited liability or liability limited only to the value of the goods. Therefore | conclude that the limitation of liability in exchange for reduced rates is authorized by Section AQ 22 of the United States Code, Section 49, and that this conclusion is supported by the various equitable consid- erations. Therefore | will direct that an order be entered in Civil Action No. 78-1717 denying plaintiff's motion for partial summary judgment and granting defendant's motion for summary judgment. Judgment hereby entered will be in favor of the plaintiff and against the defendant in the sum of $6,438, which is the agreed amount, plus interest on $3,938 from July 5, 1977, and making interest from that date, on that amount, by reason of the fact that there was, ac- cording to the stipulation of facts, a tender of the pay- ment of $2,500 on July 7, I believe it was, which was ob- viously from the stipulation of facts, the day or almost the day that the notice of the actual loss occurred. Now gentlemen, as to all of the related cases, it seems to me that probably the same basic legal issue is involved. Assuming that there is nothing that would change my view.of the law, I think it is rather clear that I would probably rule consistently in all of the other cases. I will afford counsel for all parties, in all of the other cases, two weeks from today to file any motions for sum- mary judgment either by the plaintiffs or the defendants in those cases. It would seem to me that although I will not make a formal order of consolidation in those, that they should all be able to be disposed of, particularly in view of the fact that I would anticipate that there would be an ap peal of this case and perhaps all of the appeals could be heard at one time. MR. WISSOW: Your Honor, your Honor made a finding as to — that MRT-1-H does not contain refer- ence to a release rates order? THE COURT: The only findings of fact that I am making are those contained in stipulations of fact. MR. WISSOW: Yes, but the stipulation of fact does not say it in that terms and that was raised — in other words, stipulation of fact present to the — Al10 THE COURT: I think it’s not necessary for me to make such a finding of fact because as part of the find- ings of fact is the MRT-1-H, and that would speak for itself. If there is nothing in there, then there is nothing in there. But my making such a finding would not change what it is. In other words, it seems to me that that is the record and speaks for itself. You would be in a position to certainly argue that on appeal. MR. WISSOW: May I suggest also that we have a stay on the other cases pending the disposition of this particular motion, points on appeal? THE COURT: No. I think that would be entirely inappropriate. And as I say, the reason I say that is that I think it would, first of all, if we go ahead and decide the other case, and they’re appealed at approximately the same time, they can probably be consolidated for appeal in the Court of Appeals, otherwise it would not be de- cided in this case, would not necessarily be res judicata in the other case. MR. WISSOW: I suggest that your Honor, because there are three of those related cases that are exactly An- ton cases — in other words, they do not have the valu- ation filled in on the blanks, which was the reason they THE COURT: That may be a valid reason for mak- ing a different ruling in those cases, in this case, but | see no reason to hold up on the decision. MR. WISSOW: Two weeks for proper motions? THE COURT: Yes. MR. WISSOW: Is your Honor going to issue this as an opinion, formal opinion? THE COURT: I made my statement and my opin- ion is there. It’s in the record. Anybody that wants to purchase the record may do so from the court reporter. I will sign the order which I believe — yes, there has been a form of order submitted which I will sign today. Today is the 29th. * x x All IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-1717 DONALD D. HOWE v. ALLIED VAN LINES, INC. ORDER AND NOW, this 29th day of March, 1979, after con- sideration of Plaintiff's Motion for Partial Summary Judgment and Defendant's Motion for Summary Judg- ment, the briefs and arguments of the parties and of amici curiae, it is hereby ORDERED that Plaintiff's Mo- tion is denied and Defendant's Motion is granted, and judgment is hereby entered for plaintiff against defen- dant Allied Van Lines, Inc. in the sum of $6,438, plus interest at 6% from July 5, 1977 upon $3,938. Donald W. VanArtsdalen, J. Al2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-1340 JERRY P. HILL v. TRANS-AMERICAN VAN SERVICE, INC. ORDER Itis ORDERED that after a hearing and trial, judg- ment is entered in favor of the plaintiff, Jerry P. Hill, and against the defendant, Trans-American Van Service, Inc., on the issue of liability, damages being limited to sixty cents ($.60) per pound per article. The parties have agreed that based on such limitation of liability, the damages are Eight Thousand Seven Hundred Fifty-four Dollars ($8,754.00). Judgment is entered in favor of plaintiff, Jerry P. Hill, and against defendant, Trans- American Van Service, Inc. in the sum of Eight Thou- sand Seven Hundred Fifty-four Dollars ($8,754.00). By the Court: Donald W. VanArtsdalen, Judge May 22, 1979 Al3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-1341 JAMES R. FARIS v. AERO MAYFLOWER TRANSIT CO., INC. ORDER It is hereby ORDERED that plaintiff's motion for summary judgment as to liability is granted and defen- dant’s liability is limited to sixty ($.60) cents per pound per article. The parties have agreed that based upon such limitation, plaintiff's damages are $3,800.00. Judg- ment is entered in favor of plaintiff, James R. Faris, and against defendant, Aero Mayflower Transit Co., Inc. in the sum of Thirty Eight Hundred Dollars ($3,800.00). By the Court: Donald W. VanArtsdalen, Judge May 22, 1979 Al4 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-1342 JAMES H. BILLITER v. WHEATON VAN LINES, INC. ORDER It is hereby ORDERED that final judgment is en- tered in favor of the plaintiff, James H. Billiter, and against the defendant, Wheaton Van Lines, !nc. in the sum of One Thousand Seven Hundred Thirty-Five Dol- lars and Eighty-Six Cents ($1,735.86). By the Court: Donald W. VanArtsdalen, Judge May 22, 1979 Al5 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-1581 DALE A. De FRANK v. PYRAMID VAN LINES, INC. ORDER It is ORDERED that defendant’s motion for a par- tial summary judgment is GRANTED: defendant’s li- ability is limited to sixty ($.60) cents per pound per arti- cle. The parties have agreed that based on the above limitation of liability, plaintiff's damages are Eight Hun- dred Fifty-one Dollars and Four Cents ($851.04). Judg- ment is entered in favor of the plaintiff, Dale A. De Frank and against the defendant, Pyramid Van Lines, Inc., in the sum of Eight Hundred Fifty-one Dollars and Four Cents ($851.04). By the Court: Donald W. VanArtsdalen, J. May 11, 1979 Al6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-1582 NORMAN R. FOLEY v. AMERICAN RED BALL TRANSIT CO., INC. ORDER AND NOW, this 11th day of May, 1979, an Order having previously been entered in this action granting the Motion of defendant American Red Ball Transit Co., Inc. for Partial Summary Judgment, said Order is hereby MODIFIED and it is hereby ORDERED that judgment be entered in favor of plaintiff Norman R. Foley and against defendant American Red Ball Transit Co., Inc. in the amount of $2993.32. By the Court: Donald W. VanArtsdalen, J. Al7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-1718 HENRY CEVALLOS v. VANPAC CARRIERS, INC. VU. CLEMMER MOVING & STORAGE, INC. ORDER It is hereby ORDERED that final judgment is en- tered in favor of the plaintiff, Henry Cevallos, and against defendant, Vanpac Carriers, Inc., in the sum of Two Thousand Two Hundred Twenty Dollars ($2,220.00). By the Court: Donald W. VanArtsdalen, J. May 22, 1979 Al8 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-1832 JURY TRIAL DEMANDED WILLIAM E. BLASE, Plaintiff VU. NATIONAL VAN LINES, INC., Defendant V. UNITED STATES OF AMERICA, Third Party Defendant ORDER A motion having been regularly made by the de- fendant, National Van Lines, Inc., for a summary judg- ment pursuant to Rule 56 of the Federal Rules of Civil Procedure against plaintiff William E. Blase, upon the ground that there is no genuine issue of material fact as to the matters which are the subject of the Motion and that defendant is entitled to judgment against plaintiff as a matter of law. NOW, upon considering the Motion, together with the briefs of counsel for the parties and due deliberation hav- ing been had, it is ORDERED that said Motion be and hereby is GRANTED, and that judgment be and hereby A19 is entered in favor of defendant National Van Lines, Inc. and against plaintiff William E. Blase, together with costs according to law. By the Court: Donald W. VanArtsdalen, J. April 27, 1979 A20 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-1834 DONALD E. MADONNA v. RICHARDSON TRANSFER & STORAGE CO. ORDER It is ORDERED that defendant’s motion for partial summary judgment is GRANTED; defendant's liability is limited to sixty ($.60) cents per pound, per article. The parties have agreed that based on the above limitation of liability, plaintiffs damages are Four Thousand Six Hundred and Twenty-five ($4,625.00) Dollars. Judg- ment is entered in favor of the plaintiff, Donald E. Madonna and against the defendant, Richardson Trans- fer & Storage Co. in the sum of Four Thousand Six Hun- dred and Twenty-five ($4,625.00) Dollars. By the Court: Donald W. VanArtsdalen, J. May 11, 1979 A21 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-2033 GLENN D. WILKERSON, Plaintiff VU. ENGEL VAN LINES, INC. Defendant and Third-Party Plaintiff Vv. UNITED STATES OF AMERICA Third-Party Defendant ORDER AND NOW, this 27th day of April, 1979, upon con- sideration of the Motion of Defendant Engel Van Lines, Inc. under Fed. R. Civ. P. 56(d) for Partial Summary Judgment, it is hereby ORDERED that in the event that defendant’s liability for plaintiff's loss is established, de- fendant’s liability is not to exceed 60 cents per pound per article, and is to be the lesser of the actual value of the loss incurred or 60 cents per pound per article. By the Court: Donald W. VanArtsdalen, J. A22 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-2034 JAMES R. ACREBACK v. ROCKY FORD MOVING VANS, INC. ORDER It is ORDERED that defendant's motion for partial summary judgment is GRANTED; defendant's liability is limited to sixty ($.60) cents per pound per article. The parties have agreed that based on the above limitation of liability, plaintiff's damages are One Thousand Twenty- three ($1,023.00) Dollars. Judgment is entered in favor of the plaintiff, James R. Acreback and against the de- fendant, Rocky Ford Moving Vans, Inc., in the sum of One Thousand Twenty-three ($1,023.00) Dollars. By the Court: Donald W. VanArtsdalen, J. May 11, 1979 A23 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 78-914 GEORGE J. MERKLER and JUNE D. MERKLER VU. AERO MAYFLOWER TRANSIT CoO., INC. and UNITED STATES OF AMERICA ORDER It is ORDERED that order entered April 27, 1979 granting Aero Mayfiower Transit Co., Inc.’s motion for summary judgment and limiting liability of sixty cents ($.60) per pound per article be and is hereby vacated. By the Court: Donald W. VanArtsdalen, J. May 29, 1979 A24 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 79-1857 HOWE, Donald D., Appellant v. ALLIED VAN LINES, INC. (D.C. Civil No. 78-1717) No. 79-1858 HILL, Jerry P., Appellant U. TRANS-AMERICAN VAN SERVICE, INC. (D.C. Civil No. 78-1340) No. 79-1859 Faris, James R. U. Aero Mayflower Transit Co., Inc. U, UNITED STATES OF AMERICA 3rd Party Defendant UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant (D.C. Civil No. 78-1341) A25 No. 79-1860 BILLITER, JAMES H. UNITED SERVICES AUTOMOBILE ASSOCIATION v. WHEATON VAN LINES, INC. UNITED SERVICES AUTOMOBILE ASSOCIATION. Appellant (D.C. Civil No. 78-1342) No. 79-1861 DeF rank, Dale U. Pyramid Van Lines, Inc. Dale A. DeFrank, Appellant (D.C. Civil No. 78-1581) No. 79-1862 FOLEY, NORMAN R., Appellant U.a« AMERICAN RED BALL TRANSIT CO-, INC. (D.C. Civil No. 78-1582) A26 No. 79-1863 CEVALLOS, HENRY, Appellant U~ VANPAC CARRIERS, INC. v. CLEMMER MOVING & STORAGE. INC. (D.C. Civil No. 78-1718) No. 79-1864 BLASE, WILLIAM E. and UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellants v. NATIONAL VAN LINES, INC., Deft. and Third Party Plaintiff VU. UNITED STATES OF AMERICA, Third Party Defendant (D.C. Civil No. 78-1832) No. 79-1865 MADONNA, DONALD E., Appellant v. RICHARDSON TRANSFER AND STORAGE CO., INC. (D.C. Civil No. 78-1834) A27 No. 79-1866 WILKERSON, GLENN D., Appellant v. ENGEL VAN LINES, INC. v. UNITED STATES OF AMERICA (D.C. Civil No. 78-2033) No. 79-1867 JAMES R. ACREBACK UNITED SERVICES AUTOMOBILE ASSOCIATION v. ROCKY FORD MOVING VANS, INC. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant (D.C. Civil No. 78-2034) No. 79-1868 MERKLER, George J. and MERKLER, June D., Appellants v. AERO MAYFLOWER TRANSIT CO., INC. U. UNITED STATES OF AMERICA (D.C. Civil No. 78-0914) A28 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Argued: March 18, 1980 Before: ALDISERT and GIBBONS, Circuit Judges and GERRY, District Judge* (Opinion Filed: May 9, 1980) OPINION OF THE COURT GIBBONS, C.J. This litigation presents us with twelve related cases which have been consolidated for this appeal. In each case, the nominal appellant is a present or former mem- ber of the United States armed forces, and the suit is against a motor van common carrier of household goods for damage to the goods during transit. Although the record in each case does not establish the fact, it is ap- parent that in each case, the appeal is pressed by the ca- sualty insurer which insured the military plaintiffs against such damage. The insurer asserts a right of sub- rogation. All the shipments were arranged by the De- partment of Defense (DOD), and the carrier received the goods on a government bill of lading issued pursuant to a Military Rate Tender No. 1-H, ICC No. 35 (MRT 1-H). At least 1500 common carriers of household goods have made a continuous offer under that tender to the DOD Military Traffic Management Command (MTMC) to ‘Hon. John F. Gerry, United States District Judge for the District of New Jersey. sitting by designation. A29 carry household goods of service personnel at rates lower than those offered to the general public under tariffs on file with the Interstate Commerce Commission. By the terms of MRT 1-H, and the government and carrier bills of lading issued under its authority, the liability of the common carrier for loss or damage is limited to an amount equal to 60 cents per pound per article. In each case, the serviceman, whose household goods suffered damage while in transit (or his casualty insurer), con- tends that he should recover the actual value of the de- stroyed goods instead of 60 cents per pound. That con- tention depends, in each case, upon the applicability of the Carmack and Cummins Amendments of the Inter- state Commerce Act to the carriage of these goods. See 49 U.S.C. §20(11) (1976).' After cross-motions for sum- mary judgment, the district court concluded that the provision relied upon was not controlling, and that the limitation of liability contracted for by the MTMC pro- tected the carriers. We affirm. Il. FACTUAL BACKGROUND Although the fact patterns in each of the cases is not identical, for the purposes of our disposition, any such differences are immaterial. For these reasons, we will contine our discussion of the relevant facts to the Howe case, which is typical. Donald Howe, a Lieutenant Commander in the United States Navy, made arrangements for the ship- ment of his household goods through a representative of MTMC. Under these types of arrangements, the govern- 1. Congress recently repealed the sections of the Interstate Commerce Act at issue in this case in an Act to revise. codily and enact without substantive change the Interstate Commerce Act as subtitle IV of title 49 United States Code, “Transportation.” Act of October 17, 1978. Pub. L. No. 95-473. §1, 92 Stat. 1337. The Act is codified at 49 U.S.C. §§$1LO101-11916 (1978). However. since this case arose belore the recodification and was litigated under the prior version. we will also use the earlier sections for case of presentation. A30 ment offers shipment at its expense. Howe, as a member of the armed services, is entitled to this transportation benefit by virtue of federal legislation.2 He applied for the benefit on DOD form 1299, and signed an acknowl- edgment on DOD Form 1797 that he had been briefed concerning the carrier and its liability. Howe was in- formed that the carrier’s liability would be limited to 60 cents per pound per article, and that the goods would be released by the government on a government bill of lad- ing at that valuation. He was also advised that under a federal statute,* he could claim from the United States an amourit up to $15,000 for any uninsured loss,* and that, if he desired, he could also purchase additional in- surance. Howe did purchase additional insurance in the amount of $25,000 from United Services Automobile As- sociation, a private insurance company that specializes in insurance for military personnel. Allied Van Lines, on April 26, 1977, accepted Howe’s household goods under a government bill of lad- ing which designated the United States Naval Academy as the shipper and Howe as the consignee. On July 5, 1977, Allied’s van overturned and 10,730 pounds of Howe's belongings were destroyed. Allied contends that under the bill of lading its liability is limited to $6,438.22, while Howe and the insurer contend that Al- lied is liable for the actual value of the goods, which is estimated to be about $35,000. Howe has received pay- ment from the insurer, and presumably has received or can receive payment from the United States for any dif- ference between the amount received from the insurer and the $6,438 owed by Allied. Thus, it is clear that the major portion of any recovery sought from Allied in ex- cess of $6,438, would be for reimbursement of the insur- er. The United States acknowledges that it is bound by 2. See 37 U.S.C. §406 (1976). 3. See 31 U.S.C. §§241-243 (1976). 4. See id. at §241(b)01). A31 the limitation of liability in the government bill of lading, and has no subrogation claim. It contends, as well, that the limitation of liability binds Howe, the consignee, and those in privity with him. The fact pattern of all the cases is similar, although in some of the cases it is possible that the serviceman, as well as the insurer, has an inter- est in any possible recovery. Il. THE THEORY OF LIABILITY FOR FULL VALUE The theory of recovery is that the 60 cent per pound limitation of liability in the government bill of lading is illegal and void under section 20(11) of the Interstate Commerce Act, which in relevant part provides: Any common carrier . . . receiving property for transportation. . . shall issue a receipt or bill of lad- ing therefor, and [1] shall be liable to the lawful holder thereof for any loss, damage, or injury to such property . . . and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier . from the liability imposed; and any such common carrier. . . shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to re- cover thereon. . . [2] for the full actual loss, dam- age, or injury to such property . . . [3] notwith- standing any limitation of liability or limitation of the amount of recovery or representation or agree- ment as to value in any such receipt or bill of lading . or in any tariff filed with the Interstate Com- merce Commission; and any such limitation, with- out respect to the manner or form in which it is sought to be made is declared to be unlawful and void: . . . Provided, however, |4| That the provi- sions hereof respecting liability for full actual loss, _ notwithstanding any limitation of liability or re- covery or representation or agreement or release as A32 to value, and declaring any such limitation to be un- lawful and void, shall not apply, . . . to property . received for transportation concerning which the carrier shall have been or shall be expressly or- dered or required by order of the Interstate Com- merce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property. . .; [5] and any tariff sched- ule which may be filed with the commission pursu- ant to such order shall contain specific reference thereto and may establish rates varying with the val- ue so declared and agreed upon; and the commis- sion is empowered to make such order in cases where rates dependent upon and varying with de- clared or agreed values would, in its opinion, be just and reasonable under the circumstances and condi- tions surrounding the transportation. 49 U.S.C. §20(11). Plaintiff reads section 20(11) as a plain prohibition (|3]) against a limitation of liability for less than full val- ue (|2]) unless the ICC has approved a released value or- der (|4]) and the carrier has filed an approved tariff schedule reflecting a reduced rate approved by the ICC. It contends that there was no ICC released value order (|4]) approving the 60 cent per pound limitation in MRT 1-H 9, and that there was no filed approved tariff sched- ule (|5]) establishing a rate for such reduced liability. Since Howe and the other servicemen are lawful holders of the government bills of lading, they and their insurer contend that, under section 20(11), the limitation of val- ue is unlawful and void. If section 20(11) governs, and has not been complied with, the logic of the plaintiffs position seems inescapable. With respect to the rates charged to the general public, the motor carriers do not contend that they are free to contract for a limited liability based upon an agreed reduced value of goods received. The carriers A33 agree that under section 20(11) they must obtain a re- leased value order, and file an approved tariff schedule reflecting any rate that is different from that charged to other shippers. They do urge, however, that they sub- stantially complied with section 20(11) because their tender to the government, MRT 1-H, was filed with the ICC. But their primary contention, with which the United States as amicus agrees, is that section 20(11) does not govern their dealings with the govern- ment-as-shipper. In support of their argument, both the motor carriers and the United States point to section 22 of the Interstate Commerce Act, which in relevant part provides: Nothing in this chapter shall prevent the carriage . of property free or at reduced rates for the United States, State or municipal governments, or for charitable purposes, or to or from fairs and expo- sitions for exhibition thereat. 49 U.S.C. §22 (1976). The motor carriers and the government contend that section 22 authorizes the United States to enter into agreements with carriers which are otherwise subject to the Interstate Commerce Act, at reduced transportation rates with concommitant limitations of liability. They urge that the freedom of contract which the United States enjoys by virtue of section 22, is an exception to the general antidiscrimination thrust of the Act. And, therefore, since section 20(11) is one of the sections that promotes this antidiscrimination purpose, they are exempted from its requirements. Hil. THE INAPPLICABILITY OF SECTION 20(11) TO GOVERNMENT ARRANGEMENTS PURSUANT TO SECTION 22. For present purposes we accept as correct, without deciding, the plaintiffs’ contention that they are “hold- ers” of these government bills of lading and that there- A34 fore they fall within the terms of the limitation of liability protections in section 20(11). We also assume, arguendo, that the plaintiffs are correct in their conten- tion that strict, not merely substantial compliance with that section is required before a carrier to which it ap- plies can claim the protection of a contractual limitation of liability? However, since the plaintiffs’ rights as “holders” are no greater than those of the consignor (United States), to whom the bill of lading was issued, we must first consider the contention that section 20(11) is inapplicable to government bills of lading by virtue of section 22. We conclude that both history and policy support that construction of section 22. A. The Background of Section 22 The language of section 22, quoted above, has been a part of the Interstate Commerce Act from the date of the Act’s first passage on February 24, 1887. See Act of February 24, 1887, ch. 104, §22, 24 Stat. 387.° But its 5. See New York, N.H. & H.R. Co. v. Nothnatle, 346 U.S. 128, 134-35 (1953) (to limit liability in accordance with statutory excep- tion, there must be agreement in writing between shipper and carri- er to that effect); American Ry. Express Co. v. Lindenberg, 260 U.S. 584, 589-90 (1923) (Cummins Amendment requires express authorization of ICC to maintain rates dependent upon value de- clared and agreed to as the released value, but statute does not re- quire signature of shipper); Glickfeld v. Howard Van Lines, 213 bk. 2d 723, 725 (9th Cir. 1954) (discussing statutory requirement for released values); Caten v. Salt City Movers & Storage Co., 149 F.2d 428. 432 (2d Cir. 1945); Semi-Metals, Inc. v. Pinter Bros., 360 A.2d 385, 387 (N.J. Sup. Ct. 1976) (discussing requirements of section 20(11)). 6. The original version of section 22 states (emphasis added): Section 22. That nothing in this act shall apply to the carriage, storage, or handling of property, free or at reduced rates for the United States, State, or municipal governments, or for chiarita- ble purposes, or to or from fairs and expositions for exhibition thereat, or the issuance of mileage, excursion, or comnyutation passenger tickets; nothing in this act shall be construed to pro- hibit any common carrier from giving reduced rates to minis- A35 antecedents are even older. The issue of federal regula- tion of interstate railroads had been the subject of con- gressional debate for more than twenty years prior to the Act. The 1887 enactment was the culmination of these debates. Previously, a provision similar to section 22 had been included in other proposed bills’ on which the Sen- ate and the House had failed to agree.® The unsuccessful proponents of federal railroad regulation were not writing, however, on a clean slate with respect to their attempt to exempt government con- tracts from the general coverage of the act. The subject had already been addressed in the Act of June 15, 1866, ch. 124, §1, 14 Stat. 66 (1866). This was the first railroad statute passed pursuant to commerce clause powers. It was precipitated by the New Jersey statutory grant of a monopoly to the Camden & Amboy Railroad of the traffic between New York and Philadelphia.” The act NOTE 6 — (Continued) ters of religion; nothing in this act shall be construed to prevent railroads from giving free carriage to their own officers and em- plovees, or to prevent the principal officers of any railroad com- pany or companies from exchanging passes or tickets with oth- er railroad companies for their officers and employees; and nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies: Provided, that no pending litigation shall in any way be affected by this act, We note that, in this original version, the first clause states flatly that the act shall not “apply.” The later version, instead, uses the word “prevent.” Compare Act of February 24, 1887, ch. 104, §22, 24 Stat. 387 with 49 U.S.C. §22 (1976). Apparently, the wording was changed inadvertently in the Act of March 2, 1889, ch. 382, §4, 25 Stat. 862 (1889). 7. See H.R. No. 2546, The Reagan Bill of 1878, §9, 9 Cong. Rec. 93 (1878-79), reprinted in L. H. Haney, ILA CONGRESSION- AL HISTORY OF RAILWAYS 297 (1908 & 1910) (reprinted two volumes in one by A. Kelly 1968) |hereinafter cited as Haney}. 8. See Haney, supra note 7, at 292. 9. See id. at 215-27. A36 authorized all railroads to carry through traffic and to interconnect with other lines. Congress thus intended to eliminate this monopoly by imposing this _ inter- connection principle on all railroads. The act contained the proviso “|t}hat this act shall not affect any stipulation between the government of the United States and any railroad company for transportation or fares without compensation, nor impair or change the conditions im- posed by the terms of any act granting lands to such company. . ..” 14 Stat. 66. This reference to “any act granting lands to any such company” is the key to the understanding of the “shall not apply” language in the original section 22. Most railroad companies, whether chartered by the states or built pursuant to federal legislation were the re- cipients of various forms of public support, for which the government sought a quid pro quo of more favorable treatment. '° This treatment of the railroads was consis- tent with the earlier treatment of canal companies which received government support.'' By 1866, the land grant acts stated in fairly specific terms exactly what favorable treatment the government expected. A land grant act in 1866 is particularly illustrative and significant: That the grants aforesaid are made upon the condi- tion that the said companies shall keep said railroad . in repair and use, and shall at all times trans- port the mails,. . . forthe. . . United States, . and that the government shall at all times have the preference in the use of said railroad. . . at fair and reasonable rates. . . not to exceed the rates paid by private parties. . . . And said railroad shall be and remain a public highway for the use of the govern- ment of the United States, free of all toll or other charges upon the transportation of the property or 10. See id. at 34-38. Ll. See id. at 34. A37 troops of the United States; and the same shall be transported over said road at the cost, charge, and expense of the corporations or companies owning or operating the same, when so required by . . . the United States. Act of July 25, 1866, ch. 242, §5, 14 Stat. 240-41 (1866). Some members of Congress assumed that these condi- tional land grants provided for exactly what they stated: the government was entitled to free transportation for its property and troops from those railroads which had re- ceived the land grants. In 1874, Congress attempted to enforce the free transportation provisions and according- ly prohibited the use of army appropriations to be paid for these expenses. Act of June 16, 1874, ch. 285, 18 Stat. 74. The Supreme Court disagreed with Congress’ interpretation of its own legislation, and held in Atchison, Topeka & S.F. Co. v. United States, 93 U.S. (3 Otto) 442 (1876), that such statutory provisions applied to tolls, not to transportation charges. The railroads were, by then, sufficiently well-connected in Congress that the decision was not overturned by subsequent leg- islation. But, Congress did continue to insist that the beneficiaries of its land grants do business with the United States at reduced rates. !” Congress was certainly aware in 1887, when it passed the Interstate Commerce Act, of its own statutes that required preferential treatment. Numerous states have also enacted similar preferential legislation.'* To 12. Id. at 37-38. There were, moreover, numerous statutes dealing with conditions and rates for transportation of the mails. See. ¢.g., Post Office Act, ch. 335, §§213, 214, 17 Stat. 309 (1872); Act of March 3, 1873, ch. 231, 17 Stat. 559; Act of July 12, 1876, ch. 179. 19 Stat. 79; Act of June 17, 1878, ch. 259, 20,Stat. 142 (1878); Act of Dec. 21, 1878, ch. 10, 20 Stat. 259; Act of March 3, 1879, ch. 180. 20 Stat. 357; Act of March |, 1881, ch. 96, 21 Stat. 375; See Haney. supra note 7, at 200-213. 13. For example, railroads in New Jersey are required to carry free of charge state emplovees who are tray cling on state business. Sve N.J. Stat. Ann. §48:12-109 (West Supp. 1978). a” A38 understand why it was necessary for Congress to exempt governmental business from coverage of the In- terstate Commerce Act, it must be recognized that the primary feature of that Act was to prohibit “any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatso- ever. . . .”’ Interstate Commerce Act of 1887, ch. 104. §3, 24 Stat. 380. Thus if the governmental exception, embodied in section 22, had not been included in the ‘Act, a large number of federal and state statutes provid- ing for preferences or advantages to governmental traffic would have been repealed. However, the real concerns of the 1887 Congress did not involve governmental traffic. The aforemen- tioned stalemate between the House and the Senate over federal railroad regulation finally came to an end in 1887 with the passage of the Act, because of the coincidental occurence of two events. One was the decision of the Su- preme Court in Wabash St. L. & Pac. Ry. Co. v. Illinois, 118 U.S. 557 (1886). In that case, the Court held that the 1870 Illinois statute prohibiting discrimination be- tween long haul and short haul shippers was, under the commerce clause, unconstitutional. The other precipi- tating event was the disclosure of evidence that the Standard Oil Company had conspired with railroads in Western Pennsylvania; it was intended that the railroads would charge higher rates for transportation of Pennsyl- vania crude to refineries in Pittsburgh than for transpor- tation to Standard’s refinery in Cleveland.'? Further in- vestigation by congressional committees revealed that five leading railroads had been part of a conspiracy to monopolize the petroleum trade. It was the railroad’s ability to charge various rates that enabled them to effect anticompetitive policies. In 1887, Congress was 14. See Haney, supra note 7, at 286-87. A39 interested in the elimination of the discrimination in fa- vor of classes of private shippers, and not in the elimina- tion of a longstanding legislative judgment that the gov- ernment could insist upon such discrimination. The early history of section 22 compels the conclu- sion that Congress intended to preserve the federal gov- ernment’s power to bargain with carriers, or to impose upon carriers preferential rates and terms—free of the antidiscrimination prohibitions of the Interstate Com- merce Act, and free of regulation by the Commission which the Act created. Subsequent amendments to sec- tion 22 do not indicate any intention on the part of Con- gress to eliminate this right of the federal government to make its own arrangements. The first several changes in the section consisted of the addition of new classifications for which reduced rates would be allowed—if the carrier decided to offer such rates. For example, the Act of March 2, 1889, ch. 382, §9, 25 Stat. 862, which also changed the wording from “apply” to “prevent”, added destitute, homeless and indigent persons, persons from National or State Homes, and soldiers to the list. Similarly, blind persons accompa- nied by a guide were added to section 22 in the Act of February 26, 1927, ch. 217, 44 Stat. 1247-48, and the reduced rate exception was extended to transportation of property to or from parts of the country with the object of providing relief from earthquakes, floods, fires, and oth- er such disasters. See Act of March 4, 1927, ch. 510, §1, 44 Stat. 1446-47. In 1934, an exception was added for improving nationwide housing, as specified by the Com- missioner, see Act of June 27, 1934, ch. 847, §511, 48 Stat. 264, but was repealed in 1940. See Act of Septem- ber 18, 1940, ch. 722, §3, 54 Stat. 900-901. Other minor changes were made by the 1940 Act. During the inter- vening years, motor carriers were added to the Act. See motor carrier act of August 9, 1935, ch. 498, 49 Stat. 543, 563, seeing eye dogs were subsequently allowed for blind persons, see Act of July 5, 1937, ch. 432, 50 Stat. A40 475, and additional relief for disasters when authorized by the Commission (with or without a hearing). See Act of August 25, 1937, 50 Stat. 809. It wasn’t until 1957 that a significant change — rel- evant to this litigation — was proposed but not adopted. In that year, the Senate Committee on Interstate and Foreign Commerce recommended an amendment to section 22. The bill was directed to the first clause of the act under which the United States, state, and municipal governments were allowed reduced rates. The bill pro- posed to limit the granting of such rates to times of war or national emergency. The Senate report on this proposal discusses the various positions of the bill’s proponents and opponents. The following excerpts are relevant to Congress’ under- standing of the scope of the section. The Interstate Commerce Commission advo- cates amendment of section 22 as indicated in this bill on the ground that the reduced rates so obtained have a strong tendency to increase the cost of regu- lated transportation. Leading advocates of repeal are members of the motor carrier industry. . . . It is argued that it is unfair to the commercial shipper to allow the gov- ernment to move its traffic without regulation be- cause under this policy the various levels of govern- ment obtain low rates that must be subsidized, or the difference made up by commercial shippers in the form of higher rates to them. The railroads generally contend that as long as unregulated means of transportation are available to the government . . . that section 22 should be A41 available to the railroads to allow them to compete for government business. The Department of Defense does not favor pas- sage of S. 939. Its representative pointed out... that the Department . . . deems it imperative that it continue to have the means for obtaining quick ac- tion on rate adjustments now available under sec- tion 22. The usual rate bureau procedure for ob- taining such adjustments is considered too slow to meet the Department’s needs. S. Rep. No. 410 (June 6, 1957), reprinted in [1957] U.S. Code Cong. & Ad. News 1782, 1783-84 (emphasis added). The discussion is, in a large part, a comparison of the commercial regulated traffic with the unregulated government transportation. The report presumes that government traffic is unregulated and that the determi- nation of its rates and regulations is not subject to nor- mal ICC procedures. Significantly, the Department of Defense suggested that “section 9 of S. 1457, 85th Con- gress, be substituted. That section would make rates on government traffic subject to all provisions of the Inter- state Commerce Act, including the requirements for fil- ing and public inspecting, except the long-and-short- haul clause and the terms of the act providing for sus- pension of rates.” [1957] U.S. Code Cong. & Ad. News at 1784. This proposal itself indicates that the government at that time was not subject to the other provisions. The Report recommends legislation in lieu of S. 939, which | essentially is a compromise between the different pro- posals urged by various carriers and various government agencies. (The federal agencies could not agree among themselves about S. 939). The amendment to section 22 that was passed re- flects a balancing between the government’s need for flexibilitv, particularly with respect to matters of de- A42 fense, the carriers desire to repeal the exception, and the need, as the committee saw it, for section 22 quotations to “be made available for public scrutiny. Rates for gov- ernment traffic, like other business transactions of the government, are, in the absence of compelling reasons to the contrary, best handled in the daylight of complete publicity. Requirement for such action is deemed neces- sary here.” Id. at 1786. So, in rejecting the original ver- sion of S. 939, a new paragraph was suggested which “would require carriers to submit to the Interstate Com- merce Commission copies of section 22 quotations si- multaneously with- their submittal to the agencies and departments of the United States government. The Commission would not have any regulatory authority over rates made under section 22, but would be required to make section 22 tenders or quotations available for public examination.” Id. (emphasis added). The 1957 Congressional activity resulted in the re- quirement that copies of quotations (MRT 1-H) to the United States government be filed with the Interstate Commerce Commission for informational purposes, and open for public inspection. See 49 U.S.C. §22(2). Nei- ther the text of the 1957 amendment nor its legislative history suggest any departure by Congress from the de- cision made in 1887 that the federal government, de- spite the passage of the Act, remained free to contract with common carriers on its own terms. Indeed, a depar- ture from that policy was expressly rejected in 1957. ‘Not directly in point, but nevertheless relevant to an understanding of section 22, are the exceptions for cer- tain classes of passengers to the “free pass” prohibition found in section 1(7) of the Act, 49 U.S.C. §1(7).'° That 15. Section one states in relevant part: Free transportation for passengers prohibited; exceptions; pen- alty. No common carrier subject to the provisions of this chap- ter, shall, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees, its officers, time inspectors, surgeons, physicials, A43 section is aimed at prohibiting non-excepted passes be- cause they operate, in effect, as unjust discrimination. The “free pass” prohibition was not enacted by Congress until 1906, but those persons excepted from the “free pass” prohibition are similar to those excepted in section 22. Commentators have noted that the two sections must be cross-referenced'® because they embody a com- NOTE 15 — (Continued) and attorneys at law, and the families of any of the foregoing; to the executive officers, general chairmen, and counsel of em- plovees’ organizations are authorized and designated to repre- sent employees in accordance with the provisions of the Rail- way Labor Act; to ministers of religion, traveling secretaries of railroad Young Men's Christian Associations, inmates of hospi tals and charitable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute and homeless persons, and to such persons when transported by charitable societies or hospitals, and the necessary agents employed in such transportation; to inmates of the National Homes or State Homes for Disabled Volunteer Soldiers. and of Soldiers’ and Sailors’ Homes, including those about to enter and those returning home after discharge; to necessary caretakers of livestock, poultry, milk, and fruit; to employees on sleeping cars, express cars, and to linemen of telegraph and telephone companies; to railway mail-service employees and persons in charge of the mails when on duty and traveling to and from duty, and all duly accredited agents and officers of the Post Office Department and the Railway Mail Service and post-office inspectors while traveling on offi- cial business, upon the exhibition of their credentials; to cus- toms inspectors, and immigration officers; to newsboys on trains, baggage agents, witnesses attending any legal investiga- tion in which the common carrier is interested, persons injured in wrecks and physicians and nurses attending such persons: 49 U.S.C. §1(7). 1G. See L. A. Miller, THE LEGISLATIVE EVOLUTION OF THE INTERSTATE COMMERCE ACT 18, 280 (John Byrne & Co. 1930): ICC. INTERSTATE COMMERCE ACTS ANNOTATED, Sen. Doc. No. 166, 70th Cong., Ist Sess. Vol. 3 at 2699. A44 mon purpose.'’ The correlation between the “reduced” tare and a limitation on liability has been recognized; limitations on carrier liability in free passes made pursu- ant to the Act have been consistently upheld. '® B. The Background of Section 20( 11) The plaintiffs acknowledge that section 22 appears to reserve to the federal government the right to contract with common carriers on its own terms. They contend, however, that section 22 has no bearing upon the issue of carrier liability. Apparently, they regard that issue as completely unrelated to section 22 rights, and instead, urge that the matter has been dealt with comprehensive- ly and preemptively in section 20(11). The evolution of section 20(11) illustrates very dif- ferent policies than the legislative history of section 22. The first version of section 20(11) was the Carmack Amendment of the Hepburn Act. See Act of June 29, 1906 (Hepburn Act), ch. 359 §7, 34 Stat. 595. The Carmack Amendment was Congress’ reaction to the de- cision in Pennsylvania R.R. Co. v. Hughes, 191 U.S. 477 (1903).'? According to the Hughes Court, the Interstate Commerce Act of 1877 did not provide any guidance on the issue of carrier liability, and that, instead, state law controlled. However, the 1887 Act had carried forward the carrier interconnection principle which first ap- peared in the Act of June 15, 1866, ch. 124, §1, 14 Stat. 17. See F. Judson, THE LAW OF INTERSTATE COM- MERCE AND ITS FEDERAL REGULATION 294, §179 (J.H. Flood & Co., Chicago, 3d ed. 1916). 18. See, e.g., Francis v. Southern Pacific Co., 333 U.S. 445 (1948); Charleston & Western Carolina R. Co. v. Thompson, 234 U.S. 576 (1914); Boering v. Chesapeake Beach R. Co., 193 U.S. (1904); Northern Pacific R. Co. v. Adams, 192 U.S. 440 (1904). See Judson, supra note 17, at 296, §180. 19. See C. Miller, THE LEGISLATIVE EVOLUTION OF THE INTERSTATE COMMERCE ACT 257 (1930). A45 66 (1866). It was for this reason that the Hughes case created a problematic situation: the lawful holder of a bill of lading would have to identify and locate the interconnecting carrier actually responsible for the loss. This was often an impossibility.2° Thus under the Carmack Amendment, and therefore a uniform federal standard, the initial carrier, which issued the bill of lad- ing, was made responsible not only for the damage which it caused but also for any damage caused by an interconnecting carrier. In Adams Express Co. v. Croninger, 226 U.S. 491 (1913), the Court construed the Carmack Amendment to be only an adoption of the common law rule that a common carrier may not contract itself out of liability for negligence. However, under state common law, a carrier could contract for a limited valuation of goods. Thus, the Court held that under state law, which had not been pre- empted by the Amendment, it was lawful for a carrier to limit its exposure to liability. The Adams Express hold- ing introduced the possibility that common carriers could discriminate among shippers by offering reduced rates in exchange for real or imaginary limitations in de- clared value. In 1915, Congress reacted to this situation, and passed the First Cummins Amendment to the sec- tion. See Act of March 4, 1915, 38 Stat. 1196. It provided that a carrier could contract to limit liability as to valu- ation only if the goods were hidden from view by wrap- ping, boxing, or other means. In such a case, the carrier and the shipper could agree on a declared value, and the shipper could obtain a reduced rate dependent on value, but only if such reduced rates were filed with the Inter- state Commerce Commission in advance. Finally, in 1916, as a result of a Commission con- struction of the 1915 Amendment,”! Congress passed 20. See Knorst, INTERSTATE COMMERCE LAW & PRAC- TICE 89-90 (1953). 21. See id. at 104. A46 the Second Cummins Amendment.”” The purpose of this amendment was to restore the rule of liability for full value as it had previously existed. The Commission could establish rates which varied with the value of the property declared or agreed upon. A limitation of liability was allowed if expressly authorized by the Commission. These released values were to be filed, as rates were, with the Commission. The Second Cummins Amend- ment contained all the relevant language of the current section 20(11).° As we view the legislative evolution of section 20(11), we discern three aspects. First, Congress in the Carmack Amendment in 1906 federalized, and thus made uniform, the law of common carrier liability in interstate commerce transactions. Next, in the First Cummins Amendment, Congress endorsed one of the aspects of the Adams Express interpretation of the Carmack Amendment: a carrier could not contract out of negligence absolutely, but it could contract for a rate re- flecting a declared value of the goods shipped. Third, Congress recognized that to allow private parties to con- tract for special rates based upon declared values would open the door to discrimination. Thus, Congress made such contracts the subject of filed tariffs, and thus of the filed tariff rule.** We must decide how each of these as- pects bears upon the federal government’s pre-existing section 22 power to do business with carriers on its own terms. The first aspect of section 20(11) is, we think, irrele- vant for present purposes. In 1906, Congress probably did not have in mind the protection of the federal gov- 22. See Act of August 9, 1916, ch. 301, 39 Stat. 441. 23. Section 20(11) has been recodified without substantive change at 49 U.S.C. §10730 (1978). See note 1 supra. 24. Carriers are required to file tariffs and must adhere to those tariffs in order to prevent discrimination. See Essential Communica- tions v. American Tel. & Tel., 610 F.2d 1114, 1119-20 (3d Cir. 1979). A47 ernment from the vagaries of state law, and from carrier contracts that exculpated the carrier from negligence. Congress’ basic position was reflected in section 22: the federal government could deal with carriers on whatever terms it bargained for. But, even if we assume that the 1906 legislation was intended to benefit the United States, that aspect of section 20(11) is not in issue. The government bills of lading in this case did not exculpate the carriers from their own negligence, and no one sug- gests that we should look elsewhere but to federal law.?° The second aspect of section 20(11) is equally irrel- evant. The First Cummins Amendment endorsed the concept of the Adams Express rule that a shipper and a carrier could contract for a limitation on liability tied to the declared value of the goods. The endorsement of this concept neither added to nor subtracted from the pre-ex- isting authority of the federal government, recognized in section 22, to contract in exactly that manner if federal officials so desired. The third aspect of section 20(11), the requirement that shipper-carrier agreements be made only pursuant to approved filed tariffs, is the only possibly relevant as- pect. The question is a narrow one: did Congress, when it brought agreements as to declared value of shipments within the antidiscrimination coverage of the Interstate Commerce Act, intend to modify the longstanding policy that the federal government was not bound by the antidiscrimination principle. There is no evidence of any such intention in 1915, or in 1916, or at any time since. The plaintiffs contend that section 22 is solely a rate section, while section 20(11) is solely a carrier liability section, and thus each section must govern exclusively on the separate issues. They urge that the federal gov- ernment is free under section 22 to negotiate for dis- 25. Cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 367 (1943). A48 criminatory rates, but is bound under section 20(11), like private shippers, by the prohibition against contractual limitations on liability—unless, of course, it has fully complied with the released value exception. But section 20(11) itself recognizes the interrelationship between the declared value of property and the rate charged for carriage. According to that section, a shipper who choses to self-insure for any excess over the de- clared value is entitled to a reduction in rate, since the carrier is thereby relieved of a portion of the risk that it would otherwise be responsible for. The amount of the reduction must be determined, however, in accordance with an approved filed tariff, in order to prevent favored shippers from using the self-insurance device as a meth- od of exacting rate discriminations. A government ship- per, exempted under section 22, who agrees to a de- clared value, similarly acts as a self-insurer in order to seek a rate concession to relieve the carrier of part of the risk of loss. Thus, since a government shipper may law- fully exact a discriminatory rate, there is no reason to re- quire adherence to the antidiscrimination released value provisions of section 20(11). C. Caselaw On Government Bills of Lading Few cases have been called to our attention dealing expressly with the applicability of section 20(11) to a government bill of lading. The case which gives the plaintiffs the greatest comfort is Anton v. Greyhound Van Lines, 591 F.2d 103 (1st Cir. 1978). On facts similar to those presented here, the court held that a carrier was liable to a serviceperson for full value of goods damaged in transit because it had not complied with the released value requirements of section 20(11). The court mistakenly refers to the military person as the shipper, although it seems clear that the goods were, as here, shipped on a government bill of lading at a declared val- ue of 60 cents per pound pursuant to a general tender to A49 the DOD. No mention is made in the opinion of section 22, and apparently it was not called to the court’s atten- tion. Had it been, we are confident that the result in Anton would have been different. No other cases on which the parties rely are particu- larly helpful. In Rocky Ford Moving Lines, Inc. v. United States, 501 F.2d 1369 (8th Cir. 1974), the court en- forced the 60 ~ent per pound limitation of liability, but did not clearly disclose whether its decision rested upon a section 22 exemption or upon substantial compliance with section 20(11). In Fort Worth & Denver R.R. Co. v. United States, 242 F.2d 702 (5th Cir. 1975), the court held that the carrier was liable to the United States for full value because neither the section 22 quotation nor the bill of lading contained a lower declared value. 242 F.2d at 705. In C & H. Transp. Co. v. United States, 436 F.2d 480 (Ct. Cl. 1971), the government argued that the sec- tion 22 tender (which contained no released value provi- sion) governed. The carrier contended that the section 22 quotation incorporated by reference the carrier’s pub- lished tariff regulations and released values. The court held for the government. Although the court recognized that a section 22 rate was exclusive, it did not mention section 20(11).7° In a similar context, section 22 quotations were rec- ognized as lawfully published and filed with the com- mission, although not approved. See Atchison, Topeka & S.F.R. Co. v. United States, 572 F.2d 843 (Ct. Cl. 1978). Apparently, the court viewed publication and filing:as the only necessary elements for section 22 rates. How- ever, the court did not discuss the applicability of section 20( 11). 26. Cf. Stric’land Transp. Co. v. United States, 334 F.2d 172 (Sth Cir. 1964) (distinction between reduced and released rates un- der section 20011) in context of U.S. bill of lading—but section 22 not mentioned ). ASO Finally, plaintiffs rely on dicta in Hughes Transp. Co. v. United States, 121 F. Supp. 212 (Ct. Cl. 1954). which was vacated, and summary judgment was grant- ed to the government for other reasons in a subsequent decision.*’ 168 F. Supp. 219 (Ct. Cl. 1958), cert. denied, 359 U.S. 968 (1959). To the extent that the Hughes opinion tends to support plaintiffs’ version of the interac- tion between sections 20(11) and 22, we find it unpersuasive. This is, so far as we can tell, the first case which has considered whether the Carmack and Cummins Amendments require Interstate Commerce Commission approval of declared value limitations in government tar- iffs and bills of lading. As indicated above, we think the government is free to contract for declared value limita- tions without such approval. D. Policy Considerations The government’s shipment of household goods is a massive operation and is part of a comprehensive com- pensation plan for the military. See 37 U.S.C. §406(b). The government has elected to act as a self-insurer for the excess of value over 60 cents per pound, upon the reasonable belief that by doing so, it will obtain more fa- vorable rate quotations from the common carriers of household goods. It is undisputed that the DOD need not have Interstate Commerce Commission approval for the solicitation and acceptance of tenders for carriage. There is no feasible method to separate the component of a tendered rate reflecting risk of loss from the rest of the tender. Thus, as a practical matter, either all aspects of tenders to the government should be made subject to 27. The Supreme Court held in Public Utilities Comm. of Calif. v. United States, 355 U.S. 534 (1958), that rates for the feder- al government were not subject to regulation by the states, and therefore the original holding of Hughes was incorrect. aa AS1 the Commission's approval jurisdiction or none should be. Congress chose in 1957 to continue the policy, adopted in 1887, of allowing the federal government to bargain freely for preferential treatment. Moreover, it is not unreasonable to assume that the government, as a shipper, has sufficient strength to reach a fair bargain. In light of the close relationship between rates and de- clared values, it would be unrealistic to interpret the Act as imposing partial coverage. IV. JUDGMENT Our conclusion that section 20(11) does not apply to government bills of lading suffices to sustain the judg- ment in favor of the defendants for any amounts in ex- cess of 60 cents per pound. That being so, we have no occasion to discuss other contentions advanced in sup- port of that judgment. In eleven cases, No. 79-1857, 79-1858, 79-1859, 79-1860, 79-1861, 79-1862, 79-1863, 79-1864, 79-1865, 79-1867, and 79-1868, the plaintiffs also urge that the court erred in omitting interest from the date of loss to the dat’ of judgment. That point is not fully developed in the brief for the plaintiffs, and is re- sponded to only in the brief filed in No. 79-1857 on be- half of Allied Van Lines. Allied made a $2500 unconditional tender to Howe on July 7, 1977, which was rejected. It contends that the unconditional tender stopped the running of interest on that amount. We agree. As to the remaining balance, in- terest was allowed. In the other cases, the briefs fail to offer any information on how the amount of the judg- ment was calculated. But our examination of the record suggests that in those instances in which judgments were entered in favor of the plaintiff, on the assumption that 60 cents per pound was due, the amount of the judgment was agreed upon. Thus we will affirm the judgments of the district court in all cases. A52 JUDGMENT These causes come on to be heard on the records from the United States District Court for the Eastern District of Pennsylvania and were argued by counsel on March 18, 1980. On consideration whereof, it is now here ordered and adjudged by this Court that the judgments of the said District Court, filed: May 3, 1979; May 22, 1979; May 11, 1979; May 22, 1979; April 27, 1979; May 11, 1979; May 11, 1979; May 11, 1979; and June 8, 1979, respectively be and the same are hereby affirmed. Costs taxed against appellants. Attest: Thomas F. Quinn, Clerk May 9, 1980 A53 FEDERAL STATUTES SECTIONS 20(11) and 22 of PART I — INTERSTATE COMMERCE ACT OF 1887, as amended 49 U.S.C. §20(11) and §22 §20, par. (11). Liability of initial and delivering car- rier for loss; limitation of liability; notice and filing of claim. Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiv- ing property for transportation from a point in one State or Territory or the District of Columbia to a point in an- other State, Territory, District of Columbia, or from any point in the United States to a point in an adjacent for- eign country shall issue a receipt or bill of lading there- for, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier, railroad, or transportation company fromorm the liability imposed; and any such common carrier, railroad, or transportation company so receiving property for transportation from a point in one State, Territory, or the District of Columbia to a point in another State or Territory, or from a point in a State or Territory to a point in the District of Columbia, or from any point in the United States to a point in an adjacent foreign country, or for transportation wholly within a Territory, or any common carrier, railroad, or transportation company de- livering said property so received and transported shall be liable to the lawful holder of said receipt or bill of lad- ing or to any party entitled to recover thereon, whether AS4 such receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property caused by it or by any such common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent for- eign country when transported on a through bill of lad- ing, notwithstanding any limitation of liability or limita- tion of the amount of recovery or representation or agreement as to value in any such receipt or bill of lad- ing, or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is declared to be unlawful and void: Provided, that if the loss, damage, or injury occurs while the property is in the custody of a carrier by water the liability of such carrier shall be de- termined by the bill of lading of the carrier by water and by and under the laws and regulations applicable to transportation by water, and the liability of the initial or delivering carrier shall be the same as that of such car- rier by water: Provided, however, That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or re- covery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first, to baggage carried on pas- senger trains or boats, or trains or boats carrying passen- gers; second, to property, except ordinary livestock, re- ceived for transportation concerning which the carrier shall have been or shall be expressly authorized or re- quired by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and A55 shall not, so far as relates to values, be held to be a viola- tion of section 10 of this title; and any tariff schedule which may be filed with the commission pursuant to such order shall contain specific reference thereto and may establish rates varying with the value so declared and agreed upon; and the commission is empowered to make such order in cases where rates dependent upon and varying with declared or agreed values would, in its opinion, be just and reasonable under the circumstances and conditions surrounding the transportation. The term “ordinary livestock” shall include all cattle, swine, sheep, goats, horses, and mules, except such as are chiefly valuable for breeding, racing, show purposes, or other special uses: Provided further, That nothi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0244%3A1. Public record. Not legal advice.