The opinion of the court was delivered by: POLLACK
POLLACK, Senior District Judge:
The issues herein were presented at a Bench trial. Jurisdiction is posited on the Interstate Commerce Act, 49 U.S.C. § 11707, and 28 U.S.C. §§ 1332 and 1337.
Plaintiff, Nippon Fire & Marine Insurance Company ("Nippon"), as subrogee of International Business Machines ("IBM"), sues defendants, Holmes Transportation, Inc. ("Holmes") and Troiano Express Company ("Troiano"), to recover $276,590.69 for the non-delivery of one of six cases of data processing equipment shipped from Vermont to New York. The conplaint [sic] alleges claims sounding in breach of bailment, negligence, and conversion.
Both defendants contend that their liability is limited to $5.00 per pound based on the released value designation made by the shipper, IBM, on its shipping order. Since the missing case weighed 33 pounds, the defendants maintain that their liability is limited to $165.00.
Nippon takes the position that the liability limitation contained on the shipping order is ineffective on the ground that the defendants' failure to account for the missing case constitutes a conversion and the limitation is thereby negated.
Pursuant to this Court's Order, the issue of whether the liability limitation is effective has been severed and tried separately.
Stipulated Facts and Documents
On February 10, 1983, at Essex Junction, Vermont, IBM delivered six cases of data processing material to Holmes, a common carrier regulated by the Interstate Commerce Commission, for transportation to IBM's consignee, Kuehne & Nagel, Inc., at Inwood, New York, pursuant to IBM's shipping order which stated that:
"The agreed or declared value of the property is hereby stated by the shipper to be not exceeding $5.00 per pound."
There is no evidence that a request was made by the shipper to the carrier for coverage of any value different from or in excess of the limitation of liability under the applicable tariff (Coordinated Freight Classification NEB 100 Item 27900 S3). The highest declared valuation allowed by the tariff for this commodity was $5.00 per pound.
On February 11, 1983, at Carlstadt, New Jersey, TrOiano, also a common carrier regulated by the ICC, signed for all six cases without noting any exceptions and was to deliver the shipment to the consignee at Inwood. Troiano was engaged by Holmes.
On February 16, 1983, in the course of making deliveries to 36 consignees of shipments originating from Holmes, Troiano delivered only five of the six cases consigned to Kuehne & Nagel at Inwood. Carton BU 619315, consigned to Kuehne & Nagel, weighing 33 pounds, was never delivered to them. Troiano cannot account for the loss of carton BU 619315. Troiano's president testified that Troiano had made inquiries of each consignee to whom shipments were delivered for the missing carton, but ...