(concurring):
While I agree with Judge Van Graafei-land’s scholarly exposition of the jurisdictional issue, I concur in the judgment for reasons different from those stated in his opinion. CAB regulations quite specifically *235require an air freight forwarder to prepare and deliver to consignor and consignee an “accurate” airwaybill which contains both a limitation of liability statement and a declared value of the shipment with charges for excess valuation. Only because the documentation provided was the functional equivalent of what the CAB ordinarily requires can the air freight forwarder take advantage of the tariff limitations on liability and time within which to bring suit.
The relevant regulation is quite explicit.1 In addition to delivery, it requires that the airwaybill be “accurate,” that a bill be prepared “for each shipment” and that it set forth a considerable amount of information including a “limitation of liability statement,” the “[d]eclared value of shipment,” and charges for “[ejxcess valuation.” 29 C.F.R. § 296.73(a)(l)(ii), (vii), (2)(iv) (1977). The regulation further specifies that
[w]here a forwarder desires to conduct an operation which entails the use of documentation different from that required herein, it is the responsibility of such forwarder to secure from the Board, in advance, permission to deviate from the requirements of this section.2
Plainly this regulation which is concededly binding has a purpose. At a minimum, it seeks to ensure that the shipper is aware of any limitations on liability. It further entitles him to declare an excess value and to pay any charges thereby incurred in order to avoid the tariff’s limitations, here fifty cents a pound.3 And surely the requirement that a copy of the bill be delivered to consignor and consignee4 is not surplusage. *236A delivered bill is the contract of carriage and binding. See generally United States v. Louisville & Nashville Railway Co., 221 F.2d 698, 701-02 (6th Cir. 1955).
The court below and the panel majority rely on Vogelsang v. Delta Air Lines, Inc., 302 F.2d 709, 712 (2d Cir.), cert. denied, 371 U.S. 826, 83 S.Ct. 46, 9 L.Ed.2d 65 (1962), and Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401, 1403-04 (2d Cir. 1969), for the proposition that air tariff limitations govern whether or not the documentation incorporates them. This may be true in a case where no regulations govern the subject,5 but it is quite different from saying that a bill that is undelivered or is prepared contrary to CAB regulations will serve to invoke the tariff provisions. To hold otherwise is to render the regulation nugatory, a result we are without power to effectuate.
The overland bill prepared here did, as Judge Van Graafeiland points out, state that it was “subject to the classifications and tariffs in effect on the date of the issue of this Bill.” Moreover, the overland bill contained a space for the shipper to make the filed tariffs inapplicable to him by declaring the value of the merchandise and by paying a special charge. The net effect then of the provisions in the overland bill,6 construing them generously, is to put the freight forwarder in substantial compliance with the regulation. On this basis, but only on this basis, I concur in the judgment.
. The regulation provides:
Each holder of an operating authorization shall prepare an accurate airwaybill for each shipment consigned for transportation to a direct air carrier by such holder in the capacity of an air freight forwarder or internation: al air freight forwarder and a copy thereof shall be supplied to the consignor and to the consignee of each such shipment. Each such airwaybill shall contain:
(1) The following information:
(i) Name and address of consignor, consignee, and forwarder.
(ii) A limitation of liability statement.
(iii) Number of packages in shipment.
(iv) Total weight (both actual and dimensional, where applicable).
(v) Description of commodities.
(vi) Point of origin and destination of shipment.
(vii) Declared value of shipment.
(viii) Date of airwaybill preparation.
(ix) Name of employee or agent preparing airwaybill.
(2) The following charges, when applicable:
(i) Commodity rate applied.
(ii) Total weight-rate charge.
(iii) Pickup and/or delivery.
(iv) Excess valuation.
(v) Charges advanced.
(vi) Assembly or distribution.
(vii) Other accessorial charges (specify).
(viii) Insurance (liability).
(ix) C.O.D. fee.
(x) Preparation of export documents (international air freight forwarders only).
(xi) Total charges and an indication as to whether charges are prepaid or collect.
29 C.F.R. § 296.73(a) (1977).
. Id. § 296.73 (Note). Appellee argues, Brief for Appellee at 14-15, that the CAB impliedly gave such permission in advance by accepting Emery’s Tariff Rule 45A which provides that, irrespective of form, nonnegotiable shipping documents presented in lieu of Forwarder Air-bills “shall be subject to the Forwarder’s Tariff in effect on the day of acceptance.” But acceptance of the tariff, though it might have independent effect, Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401, 1405 (2d Cir. 1969), cannot displace the requirements of the regulation. Tariff Rule 45A, however, arguably falls within the dispensation from the regulation’s strictures accorded by the Note appended to § 296.73; the Note refers to a forwarder desiring “to conduct an operation.” While we need not decide whether the activity at issue here constituted an operation it is by no means clear whether the term “operation” is bureau-cratese for a single transaction or contemplates a continuing course of business. The regulation could well be amended to advantage.
. The regulation requires that the choice given to the shipper (or passenger) to obtain either full or limited liability must be made explicit, absent which the limitations in the filed tariffs are not available. The element of choice is critical. Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 248, 194 N.E. 692, 694 (1935); American Machine & Foundry Co. v. Santini Bros., Inc., 54 Misc.2d 886, 889, 283 N.Y.S.2d 574, 577 (Sup.Ct.1967), aff'd, 46 A.D.2d 844, 362 N.Y.S.2d 402 (1st Dep’t 1974).
. Here of course a copy of the bill could not have been furnished to the consignee since the underlying goods were stolen. This is not a fatal defect, however, since the basic dispute *236here relates to the contract between the consignor and the air freight forwarder.
. The opinion for the court in Vogelsang refers to Boston & Maine R. R. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868 (1914), for this proposition. There the Court held a common carrier’s baggage limitation provisions valid and applicable though the passenger was not aware of them. But, and it is an important qualification, the Interstate Commerce Commission itself considered that the tariff filing was sufficient and that no other notice was required. The Court relied on the ICC’s position. See id. at 118-21, 34 S.Ct. 526. Here the CAB required otherwise; its regulation specifies the form of notice which must be furnished to the shipper. None of the cases referred to involves a regulation with such requirements.
. The stipulated facts indicate that a copy of the overland bill of lading was delivered to appellant’s authorized agent, Pacific Freeport Warehouse Company:
13. That later in the morning of November 3, 1971, Mr. Tosolini appeared at Pacific Freeport’s warehouse shipping office, checked and labeled plaintiff’s cargo, received the aforementioned Straight Bill of Lading and, after signing and dating said document at the bottom, returned same to a representative of Pacific Freeport Warehouse, retaining one copy thereof for his own purposes.
14. That there is an issue of fact to be submitted to this Court for determination as to whether or not Mr. Tosolini, at the same time and place, also prepared and delivered to Pacific Freeport Warehouse a document known as Emery Air Freight Corp. Airbill RNO-68927.
For purposes of this appeal, we must assume that an airwaybill was not delivered.