i hope it doesn't reflect too poorly on me in that i find this to be an interesting case that doesn't reflect on my interests and i also think it is one not only as amoco has pointed out but i think it's it should be apparent from the briefing it has implications beyond just way i think it's apparent from the briefs that the issue here is whether a limitation of liability applied to a transport of a one point three million dollars transform the c s x contends and was able to convince the district court that there was a twenty five thousand dollars limit liability on them and just going to hit a few of the of the very important facts not go through all of them there aren't that many and there really aren't any and that are in dispute that's why we're here on deal from a motion for summary judgment a b b manufacturers transformers among other things has a factory in st louis is headquartered in raleigh north carolina we manufacture the transformer in our st louis facility became flight it's bird and we arranged in march of two thousand and six to have the c s x haul that transferred we did that by preparing a bill of lading that did not have a limitation of liability and it didn't reference any specific c s x rayed authority i'll get into why that was a minute and sent that over to the c s sex and the first key fact of the very fact is that difficulty i have with your argument and that deals with that section on the bill of lading and this is where your client says they're from a year with all the terms and conditions of an earth like human with the to ship and that the terms and conditions are agreed to by the ship and the tariff said we have a limitation of the liability wise of this a contractual agreement that takes it within the exception to the well you know all cases have things you like he might be there and i certainly that's a fair point but i think the response of that is far more compelling and the response to that is that language as i think is very apparent from the briefing both sides agree refers to it regulatory scheme in a terror scheme that has not been existence since the mid ninety's the the references in that standard form very small print in the top right hand corner talk about interstate there's a number of cases that talk about vestiges of that language still being in bills of lading years after the i c c went away most of them say all the same thing that it's archaic and that it really doesn't have a lot of employment there is one case of that term and i think that's a fair point but i think there is a good answer to that question and the answer is of everybody involved in that transaction the one entity that should have known that that language didn't really mean anything anymore and should've just picked up the phone to call us to say hey what do you really want here is the c s x they're a carrier they know better than anybody in this room the bat language doesn't mean anything anymore so why would the burden be on them though to do the legal work on your form because of only congress made that decision congress said it's the burden is on the character to prove that there was an express agreement that differing rates were offered at different levels of liability and express written agreement moralizing a decision by shipper to accept a limit i believe a clear one shows up on the document to the extent that there was any lack of clarity again the the one entity in the room that should have known the best that that language is ineffective because it on the carrier unless there isn't a plainly stated exception by written declaration of the shipper or by a written agreement between the shipper carrier it so you're saying that if written agreement has to establish a price as opposed to just saying the parties agreed there is an agreement i think what you're saying i think that the burden is on i think the cases and the stature very clear on this the burden is on the carrier to show that the shipper had a fair opportunity to select between rates number one and number two that that agreement whatever the shipper and the carrier decide in shows up in the document and what the record in this case shows is that the person they be responsible for trying to make sure that that they had a clear understanding with c s x statement of value i agree that i mean there certainly is nothing in the record that shows that there was a statement of value assigned to a particular liability well of liability in a price range that it's never happened in this case out correctly that's right that the c s x would have a rigidly calculated the base rate based on weight then the next step is to see a sec should have under the law said you have two options here option one is you can ship it fifteen thousand dollars and a twenty five thousand dollar you see in the case law there's a lot of cases out there would that involve this vestige a line it still exists out there in bills of lading documents going back and forth between carriers and shippers i don't think though that congress intended were that the cases and the use of that language to override what the rest of the karmic movement says because again if that language said a b in there you're easy fix for this you just change your form well i think it the easier fix would have been for the c s extensive telephone call assume they're going to say we didn't see any need to have any further communication because you told us and writing you know what everything matt well i mean maybe they could say that but that's not in the record that in fact there's nothing in the record from the c s x from anybody on the c s ex side at the time that the agreement was reached to transport the transfer that there's nothing in the record that you know i always see in the record it is a fel but i'm not sure he would and does do it differently and only other hands yes that it appears sitting on their hands at will they have a right to do that i don't know what i think that answers the question or between the two sides to you know could have handled this better the law says the burden is on the carrier and this is a narrow exception to the idea that there should be full liability on the contract and the law is very clear on this you know that the exception is limited and the burden is on the carrier to prove there was an express agreement and to the extent there was no confusion i have a very clear record that says we did try to clear it up and what i don't see in the record anywhere it's not in there is the c s x doing anything the fear of a cleared up other than just scheme should trump that rule of construction because the statutory scheme again says very clearly it's up to the carrier to prove to get and prove and express the liability because again you know this is against public policy i suppose to have these things unless there is an approaching this issue that it's in the best interests of the trial court and us and judge votes seem to agree nation's rail carriers were in bankruptcy a few had gone out of business and a few that were in business and not in bankruptcy when the a bankruptcy congress came up with a miraculous idea to try to fix the railroads why don't we let the shippers in this country negotiate with the railroads contracts terms and conditions instead of what the i c c her scribed they it set up three different types of transportation one contract transportation under ten seven on nine which we believe this is what happened in this case then it set up exempt transportation because the i c c had started to exempt many areas of transportation that were under regulation the only difference between the contract section and the exempt section was that they had to offer shippers opportunity to get comic liability and the third was traditional liability and the bill of lading contract pilot into the car mech amendment by nine hundred ninety five regulatory body diminished to the point with congress decided that they would scuttle the i c c and let the railroads and the shippers negotiate transportation contracts now if you take a look at the deposition testimony of craig stephy who was the traffic manager of a b b for twenty years and left that position approximately eight months before this claim arose in twenty years there was never a dispute with c s between c s i x t and a b b concerning whether a shipment was made at limited under priceless forty six zero five you don't have to show that i don't think so because the course of dealing we're talking about was the negotiation of what type of transportation services they want forty six zero five  just the most recent version of various price lists that had been in effect for twenty years by night by the year two thousand most all already roads in the united states went to  base rate viability that is their tower of exact circular as price list classifications whatever you want to call it it's all the same thing in fact everybody still refers you're seeking to do in this case is to enlarge the concept of force healing to cover a price list that they knew nothing about i don't see that's what i'm struggling with there i don't see any evidence in this record that shows that they knew about the priceless to which you're trying to hold them liable and doesn't the car mackin then impose the burden on the carrier to create the exception  congress abolished the i c c it put in a new section into the interstate commerce act it gave the shippers the right to write the railroad or electronically notify the railroad that it wanted all of the terms and conditions of the applicable tariff priceless whatever it is answer in this case though i think you'd be answering in this case so the question is who had the obligation and the duty to get the information if there is a new priceless in the fact now based upon the fact that this new price list was in effect if a testimony throughout the record that they called the railroad they weren't able to get a rate they called the service they talk with the service people no no no that's not correct in the record i get back to different differ with you're on the record indicates that brian  they talk with the clearance you're a people you're doing your thing that that didn't occur they didn't say they just think that's not ok record the clearance bureau creepily up people who come and measure the railcar  testified that he asked and he didn't say which railroad because he ships with five different railroads he didn't say which well he didn't say on this shipment he said he would talk to the people who come in measure to the car and ask them if they could get information for him and surname and then he said and he said line and he could find the information that's in the record no he said that he went online and he looked at a lot of things and c s i s record and what he said was is that he could not remember if he saw a price list that's what he said rebuild going to records like  car and he said he would like to get information about the terms under which he would be shipping this transformer which occurred probably a month before he actually shipped the transformer he said that sometimes they would give them information and sometimes they would not get the information for him so after a week or several days he doesn't get information he has under the statute i write to send a letter and say i want the information he said he printed out a bill of lading and he couldn't put in the declared value on the box in the box because it was blocked but what did he do after he filled out the bill of lading in this case with his certification with the certification on it that he was from a deal with the terms of service stuff and the rights he then prints out the bill of lading an facts is that the c s x t without the declared value box being filled then what was to prevent them would pulling out his trusty brand point pen taking his pen and writing one million five that doesn't really answer the statutory question you know mr bergman did say i looked all over the website i tried to find a lot of different things i don't remember seeing a price list that they made available on their website didn't know about a price list and still shipped when the amendment says that you have to specify over a four year period on documents produced by a b b of prior bills of lading when were under that priceless what a second look oh i understand you have to understand there were they didn't produce they produced nine before that there's no evidence of what the price list provided or anything so we just have to extract the late that because they asked for it one time several years before they should've known this time craig stuffy spent six months teaching brian brougham and his jaw crank stuff he was still in the business if brian is still in that building still working for a b b as a company a b b knew what to do even  priceless forty six zero there's no red buttons on the record one way or another however craig stephy said that in his twenty years when he wanted full liability he always got it done he always requesting the clearance file be opened up that he put in that letter oh by the way i'd like you to send me the information on how to get for liability on the shipment the answer is no that craig stephy sign prepare a bill of lading and we have cited the cases that cite when the shipper prepares a bill of lading the court does not have to protect the ship or from itself to write the railroad and the railroad had an obligation to respond and give them all the information so that they would know what they were doing and what was craig stuffy teaching  how to do his job there's no evidence on that but brian brueggemann said he was able and every case no matter what changing conditions and if you look at all of the bills of lading there are always different new circulus dealing with all of the railroads so it was always changing they knew that as a company they knew on every shipment they had to call now it's a two part play it's a two point play because of the situation that if you put on the bill of lighting a million five hundred thousand dollars this is the clay of value do you get that value no you also have to agree to pay the higher rate a race but that's one of the two ways you get full law you get full liability under the comment the men when you declare a value that you're willing to pay the higher rate for but you also have to agree to pay the higher rate steffi in every case agreed to pay the higher rate when he wrote for liability required on the bill of lading staff but stuff he was not allowed and he did not have the authority to buy higher liability why didn't he have the authority because he had to once he got the rate before liability he had to go to his risk management department they contacted their insurance company and their insurance company gave a bid as to what they would charge for liability if the combination of the rail base rate liability and full liability was more are in the quote that they gave stephy was more then in that situation a so i understand it and tell me if i'm wrong then you're saying mr stephanie's prior course of dealing with c s x is sufficient to establish a course of dealing creating an exception to the written declaration and written agreement exception to the carmex amendment will liability provisions that is that your case yes and but it's only part of the case ok because it's also the cert the well what was i and your argument to the legal principles rather than simply recite the record because we are familiar with the record i realize that the legal principles of this the there's nowhere in the comic amendment that says the railroad has to first give for liability choice established the surface transportation board there's never been a complaint and behalf of the shipping public in the united states the surface transportation board that base rate liability is not enforceable under the comic amendment so there's nothing in the comic amendment a comic amendment sets out at the beginning what a rare roast liability is and then it sets out the power actual loss what contractual lloris what the parties can do under the contract they can either get higher liability than base rate liability by declaring a value on the bill of lading number one did they do that no did he try to do that yes he said he couldn't do that and what he said he didn't have to do that because in his mind he said in his mind he thought if he put in the product value on the bill of lading then he would be able to buy for liability would not paying any more money but aren't  needs to be specificity in order to remove the carrier from full life bill it has to be specificity we don't have specificity here i see no i think you do based upon the terms of the a b bill a bill of lading if there was any ambiguity it's construed against them i don't think it was ambiguous that the climax and then meant they you construe the lack of specificity against the ship or i don't in that respect well it doesn't hurt if it weren't for your position at all in stature you have to go to it doesn't hurt a position either because it provides that the fires all liability except a written agreement as well as to the liability of the real very well that was the issue in this case exactly whether there was a written agreement as a is a contract it was a written agreement under the tower for a price list or whatever it's called it's all the same it's just a different name and the bill of and when they send fax that would regard that as an order to purchase limited liable the base rate liability there's nothing in there that said for liability required if he had done just that he had looked up the old bills of lading and typed in full liability mack except he's saying well we have stated that there was an agreement the parties had an agreement as to liability is evidenced by the the provision in the bill of lading and he's saying that even if they didn't have that agreement the general contractor and simples kick in rather than a karmic in them and holding them to a specificity level apparently originally contemplated under the statute so can we swing into general contract principles or not are we limited to the text of the men i think there's very limited case law that talks about course of dealing but the courses of dealing that you see in that case always involve a situation where either there was a you indicated in during the i c c days or there's one or two cases i believe siren is one of them that the district court relied on where the ship or perhaps unknowingly actually put a piece of great authority or reference to rate authority in the document but didn't really know very limited circumstances a course of dealing can come in but the cases are very different from this one because the course of dealing always is somehow some way a limitation a liability got into the documents between the par cannot be helped against it or the core magno i think if it had risen to a higher level it could have been which is if he had written forty six o five on the bill of lading without knowing what it was then there's a problem as it was take away what is a statutory scheme the statutory scheme is if the billing asylum has nothing on you don't have to write full liability you'll have to write anything on the bill of lading to get full liability for actual loss and what you're hearing from the c s xs they want to