On Rehearing.
[Decided June 25, 1908.]
Per Curiam.Since the filing of the opinion in this case a petition for rehearing has been filed. In the former opinion we said:
“Where two rates are provided, one in contemplation of the ordinary carrier’s liability, and the other a less rate by reason of a limitation of that liability, it would seem, in the absence of an understanding or agreement between the ship*441per and the transportation company, that the carrier would assume the ordinary liability which rests upon a common carrier of goods, and that the usual rate for carrying said goods would be the one which the law implies. In other words, the lesser rate is only available as a matter of special contract, or where it is intended and understood by the shipper and carrier to apply in a given instance.”
We think this should be modified, in the light of the decisions of the Federal court, to the effect that tariffs of a railway company published as required by the act of Congress become the only legal basis upon which freight and passengers can be transported, and that the shipper is as much obliged to know what the published tariff rates are as is the carrier. Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553; Texas & Pac. R. Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628, 50 L. Ed. 1011; Southern R. Co. v. Harrison, 119 Ala. 539, 24 South. 552. Hence, where the published tariff provides two rates, one with the carrier’s ordinary liability and the other a lesser rate by reason of liability being limited, and the shipper makes no selection of rate, it is proper for the carrier to elect which rate shall apply. We hold, however, that the bill of lading or receipt showing the limited liability must be executed and delivered at the time the carrier accepts the shipment, or promptly mailed in due course of business before a loss occurs. The carrier cannot wait until after the goods have been destroyed and then choose to make the lower rate with the limited liability apply to the shipment.
This modification does not affect the result in this case. The judgment appealed from is affirmed.