(concurring).
Proffered by my brother, McCord, an opinion affirming, and by my brother, Sibley, one reversing the district judge, and told firmly by each to stand up like a man and be counted, I have at long last, but not without some slight misgivings ranged myself with McCord and the district judge and for his affirmance.
The misgivings I have do not spring from the over-all picture of the case. They spring entirely from the fact, which my brother, Sibley, has artfully pointed out, that if the words he quoted from the invoked section are construed, as he wants them to be, by themselves apart from their context in the section as a whole, as amended, and without regard to its long and informative judicial and legislative history and that of the Federal Bills of Lading Act, 49 U.S.C.A. §§ 81 to 124, it would be difficult to find fault with his conclusion. “This case falls within these words.”
These misgivings, however, entirely disappear when consideration is given to the history of the section and the uniform course of decision1 as to its non-applicability to shipments originating in foreign countries and the inapplicability of the Federal Bills of Lading Act2 ****8 to shipments so originating. If, in short, the problem the case poses is examined in its setting as a whole and not narrowly and out of focus as centered in and solved by the selected words, I think it plain that my brother, McCord, has the right of it.
It is true that since this is not, under the Federal Bills of Lading Act, an order bill but a straight bill, and the shipper, as the *16minority points out, will have to prove that the goods were in good condition when the railroad received them and that the damage sued for occurred afterwards, no great harm will come to the carrier from the suit if, as it claims, the damage complained of occurred on the ship.
But this is not an answer to the jurisdictional question whether the complaint states a claim under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.A. § 20(11), and the district judge was right in dismissing it.
I concur in the opinion affirming -the judgment.
See cases cited in the majority opinion, especially Alwine v. Pennsylvania R. Co., 141 Pa.Super. 558, 15 A.2d 507.
Chesapeake & Ohio v. State Nat. Bank, 280 Ky. 444, 133 S.W.2d 511, at page 516, 130 A.L.R. 1306; Williston on Contracts, Vol. IV., Sec. 1116.