Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
The shipping contract in this case limited the liability of the carrier for damages in the nature of spoilage or decay to liability for negligence only. The shipping contract consists of the bill of lading and the applicable tariffs lawfully published and filed (Southern R. Co. v. Prescott, 240 U.S. 632, 637, 36 S.Ct. 469, 471, 60 L.Ed. 836), from which there may be no departure. Id., at 638, 36 S.Ct. at 472, 60 L.Ed. 836. The bill of lading provides that the goods are received, 'subject to the classifications and tariffs in effect' and that every service to be performed thereunder 'shall be subject to all the conditions not prohibited by law * * * including the conditions on back hereof * * *.' Its form and terms are part of Uniform Freight Classification No. 4, one of the tariffs lawfully filed and published pursuant to § 1(6) of the Act. Classification No. 4 provides for various rates for various types of service and limits liability according to the rate paid, such limitations being held lawful by the Interstate Commerce Commission. Bills of Lading, 52 I.C.C. 671, 684 et seq.; Domestic Bill of Lading, 64 I.C.C. 357, 360-361.
Under Classification No. 4 the shipper has the option of shipping his goods either under the uniform bill of lading, with a 'limited liability,' or under 'a co mon carrier's liability.' If he chooses the latter he pays a rate 10% higher. Here the shipper chose 'limited liability.' One type of limitation is a tariff that limits the amount of damages for the loss of a shipment. See, e.g., George N. Pierce Co. v. Wells, Fargo Co., 236 U.S. 278, 35 S.Ct. 351, 59 L.Ed. 576. There the amount of recovery for negligence is allowed to be limited where the filed tariffs so provide, the shipper having the privilege of paying an increased rate and obtaining liability for the full value. Id., at 283, 35 S.Ct. at 353, 59 L.Ed. 576. Here there is no question of a carrier's being exempt from any liability caused by negligence. Rather it turns on Rule 130 and Rule 135 of the Perishable Protective Tariff No. 17, the tariff brought into play by the bill of lading.
Rule 130 states: 'Carriers furnishing protective service as provided herein do not undertake to overcome the inherent tendency of perishable goods to deteriorate or decay, but merely to retard such deterioration or decay insofar as may be accomplished by reasonable protective service, of the kind and extent requested by the shipper, performed without negligence.' (Italics added.)
Rule 135 states: 'Property accepted for shipment under the terms and conditions of this tariff will be received and transported subject to such directions, only, and to such election by the shipper respecting the character and incidents of the protective service as are provided for herein. The duty of the carrier is to furnish without negligence reasonable protective service of the kind and extent so directed or elected by the shipper and carriers are not liable for any loss or damage that may occur because of the acts of the shipper or because the directions of the shipper were incomplete, inadequate or ill-conceived.' (Italics added.)
These provisions were approved by the Commission (see Perishable Freight Investigation, 56 I.C.C. 449, 483), the declarations being 'predicated upon the special hazard resulting from the perishable nature of the freight, or from the exercise by the shipper of some measure of control over the form or degree of protective service accorded.' Id., at 481.
Rules 130 and 135 are not in derogation of common-law liability which, as we said in Secretary of Agriculture v. United States, 350 U.S. 162, 165, note 9, 76 S.Ct. 244, 247, 100 L.Ed. 173, was codified in § 20(11) of the Act. That liability exempts the carrier only for damage caused by the shipper, acts of God, the public enemy, public authority, or 'the inherent vice or nature of the commodity.' Rules 130 and 135 merely operate within the ambit of the last category, supplying appropriate standards for its application.
Such a tariff has the force and effect of a federal statute. See Southwestern Sugar & Molasses Co v. River Terminals Corp., 360 U.S. 411, 79 S.Ct. 1210, 3 L.Ed.2d 1334. 'Until changed, tariffs bind both carriers and shippers with the force of law.' Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U.S. 516, 520, 59 S.Ct. 612, 614, 83 L.Ed. 953; Crancer v. Lowden, 315 U.S. 631, 635, 62 S.Ct. 763, 765, 86 L.Ed. 1077.
It is under Uniform Freight Classification No. 4, the bill of lading, and the Rules of the Perishable Protective Tariff that we must decide this case.