Hastie, Aldisert and James Rosen, Circuit Judges. Aldisert, Circuit Judge (concurring).
JAMES ROSEN, Circuit Judge.
Appellee, John C. Thomas, filed suit in the United States District Court for the District of New Jersey to recover damages for the negligent carriage of freight by appellant, Trans World Airlines, Inc., between Philadelphia, Pa. and Sioux Falls, South Dakota, and recovered a judgment in the amount of $5,450.64. This appeal followed.
Appellee is a registered professional engineer engaged in the business of manufacturing swivel assemblies. These assemblies are designed for use on parachutes which carry bombs. As such, they are subject to rigid standards of inspection by the purchasing contractors and government inspectors before they are accepted for installation.*fn1
On January 23, 1968, Thomas delivered a carton of swivel assemblies to TWA at its Philadelphia International Airport terminal for shipment by air freight to Sioux Falls, South Dakota. The carton contained approximately 6,000 units. The estimated cost of each unit is $.98.*fn2 A domestic airbill was filled out by appellant's freight agent, B. Snyder, and signed by Thomas. The relevant portion of this airbill has to do with a box for declared value. Alongside of this box there is printed the following language:
"Declared value. Agreed and understood to be not more than the value stated in the governing tariffs for each pound on which charges are assessed unless a higher value is declared and applicable charges paid thereon."
The airbill issued to Thomas by agent Snyder shows that no value was entered in the declared value box. Under the weight category appears the entry "80 as 100." This entry was explained as representing the carrier's minimum weight (100), below which the same charges were levied regardless of the actual shipper's weight.*fn3 Since a higher value was not declared in the airbill, the freight charges were assessed on the basis of the minimum valuation stated in TWA's governing tariffs. The airbill also contains general language stipulating that the parties mutually agree that the goods are subject to the governing classification and tariffs currently in effect and that "said classification and tariffs, copies of which are available for inspection by the parties hereto, are hereby incorporated into and made part of this contract."
When the swivel assemblies reached the consignee at Sioux Falls, they were rejected because they were "very dirty," and the entire shipment was returned to appellee. The complaint was filed on June 4, 1968, and jurisdiction was alleged to be under 49 U.S.C. § 20(11)*fn4 and 28 U.S.C. § 1337. The appellant made an offer of judgment in the amount of $50.00, pursuant to Rule 68 of the Federal Rules of Civil Procedure, which was rejected. The case came to trial without a jury on September 28, 1970 and judgment was rendered for plaintiff on October 22, 1970.
The defense interposed by TWA is predicated upon Tariff Rules 26, 32 and 52, on file with the Civil Aeronautics Board on January 23, 1968. The pertinent sections provide as follows:
Rule 26. AIRBILL AND SHIPPING DOCUMENTS
(A) The shipper shall prepare and present a nonnegotiable Airbill with each shipment tendered for transportation subject to this tariff and tariffs governed hereby. If the shipper fails to present such Airbill, the carrier will prepare a nonnegotiable Airbill for transportation subject to tariffs in effect on the date of acceptance of such shipment by the carrier and the shipper shall be bound by such Airbill.
(F) No agent, servant or representative of carrier has authority to alter, modify or waive any provisions of the ...