Transportation industry and law are rapidly evolving with the modes’ operational merging; globalization of business; improvements in technology stemming from containerization and electronic data systems; recent federal court decisions and their progeny; and deregulation. These dynamics are forcing transportation law practitioners, courts and industry participants to move their focus away from viewing statutes and treaties governing water and surface carriage as mutually exclusive, and toward the significance of the regimes’ differences and compatibilities. Rapidly vanishing are the days when the transportation industry was defined by interlinking participants with mode-specific expertise and operations. Law governing the industry is – or at least should be – one step behind, and keeping pace with that evolution.
Transportation as a commercially essential business practice, and subject of specialized law, has been around virtually as long as humankind. Few industries can point to the long history that transportation enjoys, including the benefits of examining infinite legal issues that have come to form transportation law’s core. But such a perennial history has its downsides. Legal principles, when well entrenched in the common law, evolve slowly. Attitudes and conceptual understanding, of lawyers and non-lawyers alike, are difficult to retool. Legislatures and courts of all levels with more pressing issues typically feel no urgency to modify applicable law, and their most compelling constituencies are not apt to pressure them in that direction. Concurrently, however, transportation technology and practices, along with their governing environments, move forward inexorably.
To place this in perspective, consider that ocean shipping is millennia old; railroad transit is perhaps a couple hundred years old; the age of trucking as a major transportation mode dawned about 80 years ago, and air cargo has been a significant option for only about 40 years. Containerization was adopted as the world’s primary intermodal mechanism beginning about 40 years ago, taking firm hold on the industry maybe a decade later. Deregulation of the various modes throughout the 1990s drastically altered government’s role in transportation and, concurrently, business practices evolved with the demise of mandatory common carriage. Computer and internet technologies revolutionized transportation management and administration beginning in the mid-1990s, with improvements emerging at every turn. Thus, industry developments have made lightening-fast advancements in the last few decades relative to the length of transportation’s existence as a major component of commerce.
On the other hand, ocean carriage in the United States is still governed by the same federal statute, the U.S. Carriage of Goods by Sea Act (“COGSA”), enacted in 1936 after being taken nearly verbatim from the Hague Rules, an international treaty which the United States and most other signatories ratified in 1924. Amendments to COGSA over its 73-year life have been minimal.
Similarly, the Carmack Amendment to the Interstate Commerce Act of 1887, subsequently renamed and recodified as the Carmack Amendment to the Interstate Commerce Commission Termination Act (“Carmack”), originally was enacted in 1906, long before the first commercial truck undertook an interstate transport..
This paper reviews the origins of Carmack and COGSA, and compares and contrasts the two regimes’ most significant aspects. Attention is given to their compatibility in light of recent federal case law addressing intermodal liability. This paper is not an exhaustive treatment of the two statutes’ differences and similarities, as such would require a treatise-length effort. Rather, it seeks to provide practitioners and industry participants who focus on claims administration from the perspective of a single mode a conceptual understanding of the similarities, differences and interplay of the United States’ two primary cargo liability regimes.
Carmack and COGSA present a common challenge to legal and academic analysis: both are virtually devoid of legislative history. COGSA’s statutory language was reproduced almost verbatim from the Hague Rules. While there are records of discussions in the international proceedings leading to the Hague Rules’ adoption, these are not recorded with the same specificity as would be typical in legislative proceedings. Moreover, litigants cannot point to a clearly stated “Congressional intent” when referencing Hague discussions.
Carmack was promulgated in 1906 in the context of particularities and complexities peculiar to railroad carriage, years before motor carriage was even conceived. The concept of imposing responsibility for lost/damaged cargo on the initial rail carrier was easily tied to motor carriers, especially when the practice of interlining created the same difficulties for trucking shippers that rail shippers encounter in determining which of two or more carriers is liable and why, as well as where such carrier(s) might be sued. Early case law interpreting Carmack held that Congress’ intent was to create an encompassing and uniform legal structure preemptive of state and common law concepts that vary in different jurisdictions. A review of the cited case law, however, reveals a dearth of citation to legislative history unusual for pronouncements of this nature.
The original 1906 Carmack statute consisted simply of the following language:
That any common carrier, railroad, or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor 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, and no contract receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law [emphasis added].
Modern practitioners might be surprised by the statute’s last sentence. By its express terms, Carmack originally appeared intended to complement, rather than preempt, state and common law remedies. However, judicial interpretation of the circumstances in which Congress enacted Carmack demonstrates that full preemption was intended. The legislation originated with shipper claims in various states alleging negligence and breach of contract, and seeking to hold invalid carrier limitations of liability. The analyses differed in each venue, with some states allowing contractual limitation of liability and some refusing to enforce such terms for public policy reasons. Courts revealed their confusion about how inherently multi-jurisdictional issues should be addressed in this regard. Thus, Carmack was born out of concerns about transportation law uniformity. The U.S. Supreme Court finally declared Carmack’s preemption of state and common law claims in 1927. Its application was extended to include motor carriers in 1935.
The propriety of a statute imposing essentially strict liability on railroads was also a concern from conception. The first published Carmack case noted that:
There is much force in the contention that this amendment is in violation of the fifth and fourteenth amendments of the Constitution of the United States, which forbid that either Congress or any of the states “shall deprive any person of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation.”
In that connection it is insisted that the imposition upon the defendant, as initial carrier, of liability for loss, damage, or injury of the flour occasioned by the act, neglect, or default of the Southern Railway Company, or any other connecting carrier over whose line of flour passed, deprives the defendant of its property without due process of law.
The absence of legislative history complicated the analysis.
COGSA originated overseas. In 1921, the International Law Association, in coordination with Comite Maritime International, convened at the Hague to negotiate terms of a comprehensive international ocean cargo liability regime. The principal focus of the early Hague talks was development of international standards for ocean bills of lading. British law and custom in the Nineteenth Century allowed English vessel operators to insert enforceable clauses in bills of lading that shielded them from liability for lost or damaged freight. This prompted the United States to enact the Harter Act in 1893, which was designed to protect the American merchant marine in an international commercial environment. The early Harter Act statute provided as follows:
If the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel nor shall the vessel, her owner or owners, charterers, agent, or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service.
Other countries followed suit. It soon became apparent that the international trend of legislation protecting individual countries’ industry participants was unworkable. The Hague Rules were adopted by most of the world’s primary ocean shipping partners in the years following the treaty in 1924, assuring (for the most part) that shipping partners would be treated identically regardless of the venue of a maritime law dispute over bill of lading issues. The United States enacted COGSA in 1936, shortly before formally ratifying the Hague Rules.
COGSA is identical to the Hague Rules with certain exceptions. For example, COGSA imposed a $500.00/package liability limitation, as opposed to the Hague
Rules’ £100.00/package. Five hundred dollars was no meager sum in 1936, and some have analyzed this figure as being more of a ceiling than a floor. Today, $500.00 may still be higher than the cents-per-pound limitation of liability allowed by Carmack and its interpretational case law, but it typically is embraced as a near-complete defense to liability. With COGSA, Congress deviated from the Hague Rules in response to the shipping public’s demands by holding carriers liable for damage resulting from improper storage or operation of an unseaworthy vessel. COGSA largely supplanted the Harter Act, leaving the latter to apply mostly to domestic water carriage within the United States, and to portions of international transportation outside of COGSA’s dominion.
Subsequent international treaties revising the Hague Rules have followed, but the United States has declined to ratify those treaties, and has adhered to COGSA.
With such divergent beginnings, and in light of the primary transportation modes’ operational differences, it is not surprising that statutes governing surface and water carriage take dissimilar approaches to similar issues. The following section compares and contrasts some of the more significant inconsistencies of COGSA and Carmack that have survived through the modern era.
Carmack by its own terms, including separate provisions for rail and motor carriage, governs carrier liability for lost/damaged cargo in interstate surface transportation. Questions arose as to whether Carmack should apply to transit commencing in the United States and ending in Canada or Mexico, and/or commencing in one of those foreign countries and ending in the United States. The Interstate Commerce Act’s original jurisdictional provision, which was applied to Carmack, was as follows:
(2) by water carrier and rail carrier or motor carrier from a place in a State to a place in another State, except that if part of the transportation is outside the United States, the Commission only has jurisdiction over that part of the transportation provided—
(A) by rail carrier or motor carrier that is in the United States; and
(3) by water carrier or by water carrier and rail carrier or motor carrier between a place in the United States and a place outside the United States, to the extent that—
(A) when the transportation is by rail carrier or motor carrier, the transportation is provided in the United States . . .
In 1978, this provision was rewritten to provide “between a place in . . . the United States and a place in a foreign country.” Carmack now applies to interstate surface transit that is within the United States, or commences in the United States and ends in a foreign country. However, Carmack does not apply to a shipment originating in a foreign country and which ends in the United States, unless a separate bill of lading is issued for the segment within the United States.
As mentioned above, Carmack is designed and applied to alleviate the difficulties shippers would otherwise face when their cargo is interlined between two or more carriers, possibly without knowing who possessed their cargo at the time of a loss, when, where, and under what circumstances. Carmack will hold the initiating surface carrier, i.e., the carrier that issued a bill of lading, liable for cargo loss, even if the cargo was not in that carrier’s possession at the time of the loss. Upon issuance of a bill of lading, the initiating carrier assumes statutory responsibility for safe delivery, and may be left with third-party claims against other entities who actually are at fault. In other words, Carmack is not concerned with physical possession; rather, it imposes essential strict liability on the surface carrier that enters into a contract of affreightment – usually the bill of lading – with a shipper.
Jurisdictionally, Congress did not intend Carmack litigation to be subject exclusively to primary federal jurisdiction, although under the judicial code in place at the time of its enactment, all Carmack claims were removable. After a number of amendments (the last being in 1977, when Congress enacted 28 USC § 1337), Carmack was structured so as to allow original filing in and removal to federal courts only of claims for which bill of lading values (which cannot be combined to exceed the jurisdictional threshold) exceed $10,000.00.
In contrast to Carmack, COGSA’s dominion over a cargo claim issue is founded on ocean carrier possession of cargo. The statute applies “tackle-to-tackle,” i.e., from the time an ocean carrier receives cargo to the time it discharges it. However, COGSA specifically allows, and parties frequently agree to, extension of COGSA’s applicability beyond those parameters. Otherwise, the Harter Act typically governs claims that materialize before or after the ocean carrier possesses the freight.
Jurisdictionally, a vast body of law, encompassing substantive and procedural decisions that once derived from an independent federal court system, has developed regarding primary federal jurisdiction over claims sounding in admiralty. Admiralty jurisdiction is reserved to the federal judiciary in 28 USC § 1333, which provides that: “The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”
The “saving to suitors” clause allows admiralty plaintiffs the right to bring suit in state court if they so choose, precluding defendants from removing to federal court unless they have another jurisdictional basis for doing so (usually diversity). Thus, especially for smaller cases or matters in which a plaintiff might deem state court procedure, environments or juries desirable, state courts often hear cases subject to federal maritime law.
At this juncture, it is worth exploring briefly the significance of recent federal court decisions regarding extension of COGSA (and therefore admiralty jurisdiction) concepts to losses that occur on land pursuant to an intermodal transportation. Intermodal transportation is not a particularly new concept. Cargo has always moved into the U.S. by ocean carrier, been transferred to rail or motor carriers, and then been transported to an inland destination. Carmack was held to would govern the surface carriage segment over 20 years ago:
We therefore hold that when a shipment of foreign goods is sent to the United States with the intention that it come to final rest at a specific destination beyond its port of discharge, then the domestic leg of the journey (from the port of discharge to the intended destination) will be subject to the Carmack Amendment as long as the domestic leg is covered by separate bill or bills of lading. It is irrelevant that the foreign and domestic legs of the voyage are effected by different shippers or carriers, that the intended consignee or its agent takes temporary custody of the goods at the port of discharge, or that the domestic leg does not cross state lines.
The advent of through bills of lading, an industry development, prompted reanalysis by high federal courts of Carmack’s application in 2004. This was accomplished in the U.S. Supreme Court’s landmark decision in Norfolk Southern Railway Co. v. Kirby (“Kirby”), which applied a conceptual, as opposed to a spatial analysis of maritime contracts and resulting admiralty jurisdiction. Based on that jurisdictional analysis, COGSA was held applicable (and preemptive of conflicting state-law theories of liability) in intermodal freight claims, even if a loss actually occurred on land, when that federal statute was contractually extended.
Many transportation practitioners hailed Kirby as a long-awaited clarification of increasingly important points of law. Law governing the modes had finally been reconciled to comport realistically with modern shipping practices. Unfortunately, the U.S. Court of Appeals for the Second Circuit issued a poorly reasoned less than two years later in Sompo Japan Ins. Co. v. Norfolk Southern Ry. Co. (“Sompo Japan”) that, at a minimum, confused the issue. Under Sompo Japan, the agreement by parties to a transportation contract that COGSA would govern connecting surface carriers’ potential liability is unenforceable. Carmack would still govern freight claims when losses occur on land.
But with Kawasaki Kisen Kaisha Ltd., et. al v. Regal Beloit Corp. (“Regal Beloit”), the High Court recently made its intentions clear, if for reasons only parallel to those stated in Kirby. The opinion reads more like a rebuttal to the Sompo Japan line of cases than an extension of Kirby, but the effect is the same: COGSA reigns supreme over Carmack in intermodal transports governed by a single through bill of lading. The Supreme Court reasoned that under Carmack’s provisions themselves, the surface transportation statute does not apply unless a “receiving” motor or rail carrier issues a bill of lading takes first possession of cargo, which does not occur in intermodal transports originating overseas.
Carmack is a codification of common law that imposes essentially strict liability on surface carriers regarding lost/damaged cargo. It “has been interpreted by the Supreme Court . . . to provide that ‘a common carrier is liable for all losses which occurred while the goods were being transported by it, unless the carrier can demonstrate it is free from fault.” The statute recognizes five defenses that derive from force majeure and shipper fault considerations. These are “(a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.”
To demonstrate a prima facie case against a surface carrier, an aggrieved shipper must produce evidence of (1) delivery in good condition; (2) arrival in damaged condition; and (3) the amount of damages. The burden then shifts to the carrier to show both that it was free from negligence and that damage to the cargo was due to one of the excepted causes relieving the carrier of liability.
COGSA, too, imposes shifting burdens of proof on litigants, first requiring shippers to demonstrate prima facie cases of cargo tendered in good order and condition, lost or damaged freight, and damages. However, COGSA provides 17 carrier defenses, which include: negligent navigation or mismanagement of the ship, fire, perils of the sea, acts of God, acts of war, acts of the public enemy, arrest or seizure of the ship, quarantine, acts or omissions of the shipper or owner of the goods, strikes or labor disturbances, riots, attempts to save life or property at sea, inherent vice of the goods, insufficient packaging, inadequate marks, latent defects not discoverable by due diligence, and the catch-all “any other cause without the actual fault of the carrier.”
These defenses are grounded in a negligence analysis. For instance, the fire, peril of the sea, acts of God, strike or labor and, of course, the absence of carrier fault defenses do not apply if carrier negligence (including a vessel operator’s disregarding knowledge of adverse circumstances) contributed to the loss. To succeed with any enumerated defense, an ocean carrier must concurrently prove its freedom from negligence.
The most controversial COGSA defense, one that carrier interests succesfully lobbied for despite its absence in the Hague Rules, is “negligent navigation or mismanagement of the ship.” With this defense, carriers actually succeed in defending cargo claims if they can demonstrate their own negligence, a concept that is abhorrent to most systems of civil justice.
The defense of “attempts to save life or property at sea” gives ocean carriers the right to declare “general average,” a concept that can leave unsophisticated shippers bewildered. Maritime law implies a notion that carriers and all of their shippers are party to a fictional joint venture enterprise in which all concerned share risk and good fortune in the event of a peril at sea. In circumstances wherein a vessel operator incurs costs or damages while trying to preserve or rescue cargo, the shippers are liable for a proportional share of those losses. Thus, not only does a carrier have a defense in those circumstances, it actually may have a claim against its shippers.
While the divergent focuses Carmack and COGSA provide in the liability analysis provide fodder for interesting academic debate, and are a point raised in Sompo Japan regarding whether notice of limited liability under one regime is adequate for the other, query whether there is much practical difference between the two. Both statutes and interpretational case law allow carriers to argue freedom from fault under defenses that must be analyzed factually. True, an initiating surface carrier is primarily liable for cargo loss/damage caused by its connecting carrier(s), but it typically will implead the connecting carrier(s) and/or urge the latter’s freedom from fault as well.
Transportation’s inherent risks impose on its providers and consumers the necessity of a mutual business decision. Transit risk is expensive to whichever entity accepts it, in terms of allocation of resources, costs of insurance, potential lost profits, and otherwise. This phenomenon is not unique to transportation, but it cannot be disputed that movement of freight is among the most volume and risk intensive industries outside of insurance. Limitation of liability is a contractual feature of all modes of transportation, but Carmack and COGSA treat it somewhat differently.
COGSA and Carmack, as defined by their interpretational case law, are similar in their recognition of limited carrier liability as a practical necessity, as well as their disinclination to impose limitation of liability on an unwitting consumer. Under both regimes, carriers may enforce limited liability terms only when they demonstrate they clearly offered their shippers the option of procuring full carrier liability (often at a prohibitively high freight rate). A bill of lading or other contract of carriage must be issued; and the shipper must have declined or ignored its opportunity for full liability (typically by checking a box and stating the freight’s value). Earlier case law references a requirement that the surface carrier have a tariff on file with the Interstate Commerce Commission, but that requirement has been eliminated.
Carmack provides as follows:
. . . a carrier providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 may, subject to the provisions of this chapter . . . establish rates for the transportation of property (other than household goods described in section 13102 (10)(A)) under which the liability of the carrier for such property is limited to a value established by written or electronic declaration of the shipper or by written agreement between the carrier and shipper if that value would be reasonable under the circumstances surrounding the transportation.
The term “reasonable under the circumstances” is liberally defined and applied, and carrier liability of $0.10/pound has been enforced. Courts most typically analyze this term in the context of whether a carrier has effectively limited its liability, as opposed to whether the limited liability is reasonable.
As discussed above, COGSA allows ocean carriers to limit their liability to a minimum of $500 per package, which if not evident from the bill of lading’s cargo description, is defined as the “customary freight unit.” This is less convenient than the cents-per-pound limitation Carmack allows, as parties frequently dispute what constitutes a “package” or “customary freight unit.”
Certain other considerations within COGSA and Carmack merit brief mention. Parties to surface transportation contracts may waive Carmack dominion altogether, or any portion of that statute, by written agreement. As noted above, ocean shipping contracts may extend COGSA’s applicability to before or after the carrier takes possession of cargo, and as mentioned above, through Himalaya Clauses to include service providers other than the carrier. However, COGSA is statutorily applicable at least during the “tackle-to-tackle” segment of an ocean transport. Of course, courts will enforce stipulated deviation from certain COGSA provisions (such as its limitation of liability and statute of limitations), but the statute itself has the force of law.
COGSA contains a self-executing one-year statute of limitations. Carmack empowers surface carriers to impose whatever time period for bringing suit they choose, so long as that period is not less than two years. Similarly, surface carriers may deny claims as time barred if written notice is not presented to them within a stated time period, so long as that time period is not less than nine months. In other words, Carmack contains no statute of limitations; it merely restricts the time period within which a carrier may require notice of claim and filing of suit. If shipping documentation is silent as to time to file suit (or if no documentation is issued at all), a laches analysis will be applied.
Carmack’s jurisdictional provisions are addressed above. The location of a party, the place of a transportation contract’s making, and the situs of a loss at issue can determine what jurisdiction – state or federal – might be appropriate. COGSA cases consider similar factors. However, the U.S. Supreme Court by its 1995 decision in Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer declared that foreign jurisdiction selection clauses are enforceable. The vast majority of ocean carriage is undertaken by foreign-flagged vessels, most of which include in their standard bills of lading forum selection clauses requiring that cargo claims be brought in foreign countries. Consequently, the volume of ocean cargo litigation in the United States has declined dramatically over the past decade.
Lastly, it should be noted that COGSA, being subject to admiralty jurisdiction, does not grant parties the right to a jury trial.
Why do we not have a single liability regime governing all mode of transportation? Despite different statutory originations and their historical impacts; international considerations which play a much larger role in ocean shipping; a few mode-specific defenses; and some operational particulars, does it seem so unattainable a task for Congress to assemble concepts that could be reduced to a statute applicable to all modes?
Apparently, yes. Congress has a long track record of taking little or no action on transportation law matters unless virtually all parties are in agreement. Historically, ocean carriers have successfully thwarted passage of proposed new cargo liability regimes simply by writing one-page letters to Congressional committee chairs contemplating new legislation. With the United States being home to no significant ocean carriers, foreign concerns have mobilized well toward preventing American legislation that likely would prove contrary to their interests.
Proponents of a unified liability regime in the United States are not organized, and have no real example to follow in other countries. All of the world’s major trading parties face the same dilemma of reconciling primarily international considerations in ocean shipping with primarily domestic ones in surface transportation. Any country, including the United States, attempting to solidify its transportation law would have to risk potentially severe international treaty implications in addition to the daunting task of becoming reoriented to new legal concepts.
Still, even limited legislation and/or clarifying jurisprudence could improve the legal landscape tremendously. While merging Carmack and COGSA would be problematic, more clearly defined applications would enable industry and practitioners to better contemplate and allocate responsibility for lost and damaged freight. This could be accomplished with some level of new federal legislation and/or definitive jurisprudence on multimodal issues.
 COGSA originally was codified as an amendment to § 25 of former Title 49. After amendments in 1981, it was recodified at 46 USC App. §§ 1301-1315, which is the citation most frequently encountered in modern case law. It was again recodified in 2006 at 46 USC §§ 30701–30707.
 See Admiralty and Maritime Law Guide – International conventions, available at http://www.admiraltylawguide.com/conven/haguerules1924.html. The Hague Rules were amended by a treaty known as the Hague-Visby Rules in 1968, but the United States did not ratify the latter treaty.
 Originally part of the Hepburn Act, ch. 3591, 34 Stat. 584 (1906) and codified at 49 USC § 20(11); recodified in 1978 at 49 USC § 11707; and recodified again in 1996 at 49 USC § 14706 for motor carriers, freight forwarders and others, and at 49 USC § 11706 for rail carriers.
 Reider v. Thompson, 339 U.S. 113, 119, 70 S.Ct. 499, 502 (1950).
 See, e.g., Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314 (1913); Atchison, Topeka & Santa Fe Ry. v. Harold, 241 U.S. 371, 36 S.Ct. 665, 60 L.Ed. 1050 (1916); and New York, New Haven & Hartford R.R. v. Nothnagle, 346 U.S. 128, 73 S.Ct. 986, 97 L.Ed. 1500 (1953). A summary of this early jurisprudence is presented in Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 704-05 (4th Cir. 1993).
 For an in-depth study of Carmack’s lack of legislative history and federal preemption issues, including case law noting that circumstance, see Tarkington, Rejecting The Touchstone: Complete Preemption And Congressional Intent After Beneficial National Bank V. Anderson, 59 S.C. L. Rev. 225 (Winter 2008).
 For an in-depth study of Carmack’s origination, including its paradoxes, see Kaiser, Moving Violations: An Examination Of The Broad Preemptive Effect Of The Carmack Amendment, 20 W. New Eng. L. Rev. 289 (1998). Ms. Kaiser argues persuasively that Congressional intent with respect to Carmack has been subverted since the statute was first implemented.
 Missouri Pac. R. Co. v. Porter, 273 U.S. 341, 47 S.Ct. 383, 71 L.Ed. 672 (1927).
 Motor Carrier Act of 1935, ch. 498, 49 Stat. 543 (1935).
 Norfolk & W. Ry. Co. v. Stuart’s Draft Milling Co., 63 S.E. 415, 416-417 (Virginia 1909).
 Self-described as a “descendant of the International Law Association,” Comite Maritime International is the oldest international organization devoted to the development of a uniform maritime law. See CMI’s website at http://www.comitemaritime.org/.
 See 1 The Legislative History of the Carriage of Goods by Sea Act and the Travaux Préparatoires of the Hague Rules 273 (Michael F. Sturley ed., 1990).
 US Code ch. 105, Sec. 3, 27 Stat. 445. as found in 1893.
 See, generally, Yancey, The Carriage Of Goods: Hague, Cogsa, Visby, And Hamburg, 57 Tul. L. Rev. 1238 (1983).
 See discussion below addressing limitation of liability.
 For example, the Hague Rules were followed by amendments known as the Hague-Visby Rules and, later, the Hamburg Rules. See, generally, id.
 49 USC § 14706 and § 11706.
 PL 95-473, 1978 HR 10965; 49 USC § 10730.
 49 USC § 10501(a)(2)(F) (1996).
 Capitol Converting Equipment, Inc. v. LEP Transport, Inc., 965 F.2d 391, 394 (7th Cir. 1992) and cases cited therein.
 See Tarkington, 59 S.C. L. Rev. 225, supra.
 Section 1 of 46 USC § 30701, COGSA’s definitional section, states that “(e) The term ‘carriage of goods’ covers the period from the time when the goods are loaded on to the time when they are discharged from the ship.”
 Section 7 of COGSA, entitled “Agreement as to liability prior to loading or after discharge” provides that “Nothing contained in this chapter shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation, or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to or in connection with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by sea.”
 See Schoenbaum, 1 Admiralty & Mar. Law § 17-2 (4th ed.), §§ 3-1 – 3-12.
 Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 701 (11th Cir. 1986).
 543 U.S. 14, 125 S.Ct. 385 (2004).
 For a detailed analysis of the Kirby decision and its impact, see Block, Norfolk Southern Railway Co. v. James N. Kirby, PTY Ltd., d/b/a Kirby Engineering, and Allianz Australia Insurance Limited: The U.S. Supreme Court Blesses Industry’s Trend Toward Intermodalism, Vol. 7, No. 2 The Transportation Lawyer at 29 (Oct. 2005).
 This is typically accomplished by Himalaya Clauses which have long been standard in ocean and through bills of lading. See Block, The Himalayas: Taking Those Old Mountains to New Heights, Marine Digest and Transportation News (Feb. 1999), available at http://www.bpmlaw.com/TransportationLL9804/tabid/1713/Default.aspx.
 Reversal by the U.S. Supreme Court is widely anticipated in transportation law practitioner circles.
 456 F.3d 54 (2nd Cir. 2006).
 The Second Circuit unpersuasively distinguished Kirby by asserting that the Supreme Court was concerned only with preemption of state and common law claims in that decision. For a detailed analysis of the Kirby decision and its impact, see Block, Kirby’s wake? How the calm waters of ocean transportation intermediary and subcontractor liability suddenly became unpredictable, presented at the Pacific Admiralty Seminar on October 2, 2008 and available at http://www.bpmlaw.com/Resources/Publications/TransportationLL0808/tabid/2131/Default.aspx.
 130 S.Ct. 2433 (2010).
 Allied Tube & Conduit Corp. v. Southern Pacific Transp. Co., 211 F.3d 367, 369 (7th Cir. 2000) citing Pharma Bio, Inc. v. TNT Holland Motor Express, Inc., 102 F.3d 914, 916 (7th Cir.1996) (quoting Jos. Schlitz Brewing Co. v. Transcon Lines, 757 F.2d 171, 176 (7th Cir. 1985)).
 Missouri Pac. R. Co. v. Elmore and Stahl, 377 U.S. 134, 137, 84 S.Ct. 1142, 1144 (1964).
 46 USC § 30706.
 See Schoenbaum, 2 Admiralty & Mar. Law § 17-2 (4th ed.).
 Actually, Carmack has been interpreted to require only that carriers offer their shippers “a reasonable opportunity to choose between two or more levels of liability.” See, e.g., Sassy Doll Creations, Inc. v. Watkins Motor Lines, Inc., 331 F.3d 834, 836 (11th Cir. 2003). However, an opportunity to declare the property’s value is required, and most frequently an opportunity to procure full carrier liability is one of the two options.
 This frequently is done by way of incorporated “terms and conditions” and other documents. Some courts enforce limitation of liability based on parties’ course of dealing even when a specific waiver of full liability has not been expressed in a particular transit’s documentation. See, e.g., Insurance Co. of North America v. NNR Aircargo Service (USA), Inc., 201 F.3d 1111, 1113 (9th Cir. 2000).
 The Trucking Industry Regulatory Reform Act of 1994, Pub.L. No. 103-311, 108 Stat. 1673, and the ICC Termination Act of 1995 (“ICCTA”), Pub. L. No. 104-88, 109 Stat. 803, eradicated the Interstate Commerce Act and tariff filing requirements, a point to be made when uninformed tribunals seek to enforce this requirement.
 49 § 14706(c)(1)(A), entitled “Shipper waiver.”
 46 USC § 30701(5). See Travelers Indem. Co. v. Vessel Sam Houston, 26 F.3d 895 (9th Cir. 1994) for an example of such dispute.
 49 USC § 14101(b), providing “[i]f the shipper and carrier, in writing, expressly waive any or all rights and remedies under this part for the transportation covered by the contract, the transportation provided under the contract shall not be subject to the waived rights and remedies and may not be subsequently challenged on the ground that it violates the waived rights and remedies.”
 46 USC 30701(6).
 49 USC § 14706(e)(1), providing that a “carrier may not provide by rule, contract, or otherwise, a period of less than 9 months for filing a claim against it under this section and a period of less than 2 years for bringing a civil action against it under this section.”
 515 U.S. 528, 115 S.Ct. 2322 (1995).
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