(dissenting) — I dissent from the conclusion reached in this case. Since there were two published rates fixing different liabilities on the carrier, the shipper had in the first instance the right of selection. But as he did not exercise that right, the duty of making the selection devolved from necessity on the carrier. When, therefore, the carrier in good faith selected the lesser rate and shipped the goods thereunder, the selection, in my opinion, fixed the rights of both of the parties. The carrier should not be permitted on a successful completion of the contract of carriage to collect the higher tariff, nor should the shipper be permitted to collect any more than the limited value in the case of a loss of the goods.
The judgment should be reversed, with instructions to enter a judgment in favor of the appellant.
Mount and Rudkin, JJ., concur with Fullerton, J.