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Click here for the full text of this decision The court finds no express waiver of the federal transportation statute’s provisions in the parties’ contract and no limitation of the carrier’s liability. FACTS:This is a case between a shipper and a carrier under the Carmack Amendment, a federal transportation statute that creates a uniform federal law regarding the liability of interstate carriers for lost or damaged goods. The carrier, appellant Celadon Trucking Services Inc., appeals the trial court’s judgment against it and in favor of the shipper, appellee Titan Textile Co. Inc., on Titan’s claim under the statute. HOLDING:Affirmed. The court decides whether a provision in the parties’ contract constitutes an express waiver of the protections afforded the shipper under this statute and, if not, whether the shipper agreed to limit the carrier’s liability for losses. The only provision of the Contract that Celadon argues constitutes an express waiver of Titan’s rights and remedies under the Carmack Amendment is �19 of the Application of Rates portion of the Contract, which reads: “19. All Mexican trans-border shipments are treated as either originating or terminating at the border point in the U.S. CELADON is not responsible for loss or damage occurring in Mexico. Mexican cargo insurance is available from customs broker.” Celadon states that the parties enjoyed a wide freedom of contract and that this court should not rewrite the terms of their agreement. Celadon also cites Texas waiver law and argues that Titan impliedly waived the Carmack Amendment by its conduct in agreeing to �19, a provision inconsistent with the liability imposed under the Carmack Amendment. These arguments miss the point. The court does not determine the meaning of the contract in the context of a breach-of-contract claim. Rather, the court views this provision in the context of Titan’s statutory claim under federal law. Celadon asserts Titan has expressly waived its rights and remedies under the Carmack Amendment, and the court decides if the contract contains an express waiver. Congress’s requirement that the waiver be express pre-empts any Texas law that would allow implied waiver by conduct or that would interpret the contract to waive Celadon’s liability for losses in Mexico without an express waiver of the Carmack Amendment in the contract. Finally, Celadon argues that, because it attempted to disclaim liability for loss or damage in Mexico in �19, and because this disclaimer would be inconsistent with the Carmack Amendment, �19 is an express waiver by Titan of its rights and remedies under the Carmack Amendment. The court disagrees. Section 19 does not clearly and unmistakably communicate or directly state an intent to waive the protections of the Carmack Amendment. Under the plain meaning of “expressly,” Titan and Celadon have not expressly waived these protections as required by 49 U.S.C. �14101(b)(1). Absent an express waiver, Titan is not precluded from asserting its claim under the Carmack Amendment. Celadon asserts that, under the Carmack Amendment, �19 limits its liability to zero for losses in Mexico. See 49 U.S.C. �14706(c)(1)(A). The relevant part of the Carmack Amendment states that a carrier providing certain transportation services may “establish rates for the transportation of property [other than certain household goods] 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.” It is unclear whether the Carmack Amendment allows a carrier to “limit” its liability to zero. In any event, there is no evidence in the trial record that the carrier (Celadon) presented the shipper (Titan) with any range of established rates or potential liability levels from which to choose. Even if a carrier could limit its liability to zero under the Carmack Amendment, the court concludes the record contains no evidence Celadon gave Titan a reasonable opportunity to choose between two or more levels of liability. OPINION:Frost, J.; Yates, Hudson and Frost, JJ.

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