federally authorized freight broker and normally you would expect a freight broker then in or into some contracts with its contractors with with the with someone like estes express that did not happen here salem did not enter into any is that i thought i saw something in the court of claims opinion that suggested that there was some contract between there was there was no there was no contract your honor between the you you said in your i think i've got this right to tell me if i'm right i think there is an allegation in your complaint that there was a contract but the complaint may not govern once or into the evidentiary part and you now say there was not in fact any contract between sale and that well i guess i should be more clear there is no written contract there there was a course of dealing between the parties before salem stopped paying bills but but there was no there was no written contract that could have easily resolve the issues before the court  that this contract issue i guess is more harmful than helpful to you that it has this clearly their bills of lading are contracts but that's between you and shipper and possibly we'll get to that but under johnson controls there's at least a possibility that some other contract might supersede some of those rights so i took it that it's it's important to your case now that they're not actually be nother contract particular another contract provision whether written or oral between you and salem that changes the obligations that would otherwise follow from the bills of lading well i think it would be disingenuous for me to tell the court that estes would say it was not entitled to payment from sale but under federal transportation all even even if there is a contract th bill of lading still creates privity between the shipper which and this is kind of an odd situation because this is inbound freight rather than out now freight normally normally when we're talking about freight we're talking about a manufacturer somewhere who's making something and arranging for shipment of its own prop so that party is the shipper and is also the consummate or here we've we've changed those because technically the shipper here is a party arranging for shipment which is the marine corps exchange and while the freight does not get any clue as to all of the all of your claims or are there some private private party shippers or is it true that in as to everything at stake here the government the same person but in both positions would in fact be a party to that to the bill of lading that's correct your honor outside of outside of the government lingo now now let me make one more distinction or one more point  along those lines of your question your your your inquiry when when outside of in transportation law merely because there is a sale doesn't mean there's not pretty because of the can't because of the bill of late so there's there's if you if you look at these cases you can argue about who owes the freight knew you can go out you can look at oak harbor and commercial metals and all those types of cases and you'll see in that that a where it says in the bill to box in that bill to box it says it doesn't say saying well i guess that would be that would be the best way to say it is if if if it's in salem then i think the government's argument still liable for the freak even though there is a fight there's no question about that and how do you arrive at that point and just simply says marine corps and then to to be able to care of in that list the other egress i mean in the shipping world you do have the the the broker who contacts the shipper makes all the shipping arrangements you're dealing with the with the broker at that point not the marine corps your honor and that's correct and in a certain way of speaking but legally that broker does not break the liability of the shipper for freight charges and if we were to if we were to go and look at for example the hawk spear case in the four circuit case in the ni those types of cases make it very clear that that absent some specific language to the contrary which doesn't exist here that the that the ship or the party arranging for shipment remains liable for the free even though they have to pay twice they may have to pay a broker who goes out of business and then they have to pay the carrier who didn't get paid first time and so i noticed that is one of the cases we cite in our brief is the bedrock  and when we talk about the merits of the case at this point the only thing that our obligation is to to prove some evidence of privity and i think that if we were if we were if we were not in this court and we were in a in a in a in a private court without the government well nobody would say there's no privity here because there's there's absolute privy between the parties to the bill late and so and so so and we've got to get narrow there was there was some language in the in the same government contract that said what was supposed to be in the in the on the bill of lading and specifically directed salem right to use the built in language you know and i'm talking about something that's maybe a even prior to not not prior temporally but logically prior to that that the government specifically somehow in dorsch the use of the standard for intimacy as as that's described there has a standard language in its bill of lading that would govern this type of freight this is this is what's called less than truckload freight  options for the government to disclaim liability for freight charges and those that that that those those options for disclaiming freight charges were not take so so there were there were ways that the billing could have been completed that believe so your honor because i think that our position is that both parties are alive and if sailing had paid it that would have extinguished the liability of the brick or exchange but under motor carrier law when when when the broker doesn't pay to provide a service of a ranging transportation by others so if this was not performing a duty that under the contract that salem had with the united states was a duty salem of it that's what a subcontractor does a contract or says i will provide to the owner of a certain good or service and then the contract that goes out and gets other people to help provide that as this wasn't providing  services well they are in the contract routinely refers to some contractors carriers vendors the contract obligated salem to arrange for the transportation and who salem chose to carry the loads was for sale and to decide is there something specifically in that salem the government contract that refers to carriers as subcontractors i don't know of anything in the contract your honor that links that they use the word carrier and contractor at the same time there is the use of the word some contractor as a salem couldn't go out and hire some other transportation some help from other arranging companies but what some language i do want to point out to you your honor i'm fifty three your response your first question is that at the top of that page the contract with salem provides that the contractor meaning same shall furnish all personnel services and supplies including contractors cost and profits necessary to provide labor transportation and freight management services to headquarters  and so our view is that this contract did make sale i'm responsible for providing the transportation that was necessary and how to go about that was up to say i'm sorry i did this this this is actually testers didn't as this is providing transportation salem was not obligated here to provide transportation it's obligated to provide management services it certainly was the contemplation of the government same that failing would hire carriers my guests would hire them the contemplation was that s s would that the carriers would be in a contractual relationship with sailing to do something salem had promised to do like provide the actual carriage i'm a little bit confused by phrasing but the expectation of government certainly was that salem would a contract with carriers to provide it wouldn't know because the government had made other arrangements and so some of the cases like the old farmer case recognized party is free to contract any way contract other than through a bill of lading in advance it's those terms that will govern and response to some of the things that came up during mr mosley's argument i do want to make sure the court is aware paragraphs five and six in the complex and as these is bound by the complaint you're right what the why is it why does the elegant because maybe if it this way why isn't it perfectly possible for them to allege dual liability get the bill of lading is a contract between the carrier and the ship for and the seine here the united states is at the same time shipper confidently if you didn't know anything more the carrier family has a contract each bill of lading with the united states so what nic what's either wrong with that or overwrites what was first wrong with that is paragraph six of the complaint paragraph six of the complaint on j fourteen says under the bills waiting various embassy explications were listed as the consul name while various third parties were listed as the ship so that's the first part that's now the part is to why the consulate which years alleged to  looked at beyond what was in the complaint was what was in what is under speeded as the contract between the marine corps and sail other than that there wasn't any inquiry that i recall  beyond the fact that relation the complaint and those were trees is true you don't deny that of relating there's a contract it usually it's when it comes to the government gets a little bit more complicated there's a difference between straight middle started with look to the face of the ability yes assuming there's no other previous contract well between s s and the government the original put the other of the contract there's no contract at all between at this provided to the court it at the motion to dismiss stage five sets of shipping documents and one of those three documents for each of those five sets is a sample bill of lading and so the shift ship or ship from is on this one on one thirty eight m j sophie company the ship two is a marine corps exchange location and then it indicates third party trait charges fifty nine sixty at the rank or pay scale salem pays the characters at it wasn't the government that went to estes and told estes to come pick up this boat it was sail and this instrument here is something generated by the vendor but it is an instrument between assays and sent some contracts cannot create  softly but if you look at the complaint the complaint says in the paragraph you were reading from that very shippers including the navy clean the united states entered into these things so that all five of the sacs shipping documents none of them have the government has the shipping or ship or ship from hardware however the court of federal claims said i think in terms in some cases here's what you do about building you build to the united states care of this other company sale that really isn't a contract with the united states now it doesn't it doesn't have the elements required to establish a contract with the united states and actually a good a good persuasive discussion of this although now ponding on this court is in the court of federal claims decision and why are sick and actually involve the exact same contract with salem that's at issue here and another carrier sought to recover  against the government program just not sure that that discussion is persuasive that's all i mean i realize it's a discussion of the point but i take it from the ninth circuit ok so like three or four other circuits that it's absolutely rock government's position is that even if there were no other contract between the government they went up there then yes you would accept the notion that this is the contract and but it's the government's position that in this circumstance there's an overriding contract which establishes relationship between the parties and so that overrides whatever one would take away from this bill of lading and that them certainly the government's position that that overriding contract with salem is what defines the government's rights but that's the only contract in which the government's made right made exceptions by the government which and wish there was a mutual assent to enter into that contract with these bills of lading you do not have an authorized representative of the united states who's putting that up so but that the shipper is secure it wait standing at the loading dock and saying dear carrier please accept this for for  carriage that i mean that nobody could have walked into the navy supply store outside the government surreptitiously took the navy's goods and put them on the carrier that was the government right there is someone who works for the government at the warehouse not not a person who is authorized to enter into contracts because the contract already been entered into by the authorised contracting officer in salem so so there's a there's an ordinary bill of lading law the shipper has a contract ses here and you're saying that there is another contract not a contract involving ss that overwrites s t s rights that you're pointing to a contract name of the salem marine corps contract indicate is different than a straight bill but in these were straight bills of lading government bill of lading as a signature from a government authorized person if the ad is a contract between the government and a character even though there's a whole bunch recently there's a tender if there's not a program this case where you have a contract like we did here with the government so you have a tender offer from a carrier and then you have a government built waiting in express but that that arrangement is not what we have here here we have the government enter into one contract authorized government official entered into one contract a contract with was with same the court of federal claims properly recognised that the waiting for a charges or not to be added to a merchandising voice unless you are directed to do so by sailing logistics or m c x operations when you prepare the big vo indicate that the free charger should be third party build this this language simply reflects your range meant as very clear in the contract that is that the government will pay scale and salem will pay the carrier and it does and it could have done that without having that information placed  the bill later i don't know for sure whether that's true and i hear well why couldn't they just agreed you you contract with the with the first agent company collect the revenue and then you pay you you send me the check why does a check have to be made out to the government checkpoint not be made out to the government i mean the government's writing the but what the court of federal claims has invariably decided is that carriers have to demonstrate privity of contract with the government if you don't have a contract with the government can establish jurisdiction in this court as these didn't have a contract with the government those bills of lading you do not have a signature of a government represented anywhere on it do not have authorization from an authorized government representative anywhere on if if were in any other court in the country and we're talking about privy nobody's even discussing the fact that there's no privy between a ship or a constantly and a carrier so so out submit that because it doesn't matter that there is no signature from the ship or the bill of lading there there is a signature on the delivery receipt which has the that will be at the at the delivery location so all of these approximately a fourth of the of the shipments were basics change transfers so there was an abundance of product at one base exchange ship to another base exchange so in those roughly twenty twenty five percent of the shipments they the government would have been constantly and shipper the however i would i would point out that the shipper there is a shipper a box on the bills of lading that are submitted  says ship but it really if if we were going to be analyzing that from a legal standpoint it should say consonantal because that's just the location where it was picked up that was not the party arranging for the ship i'm afraid and so otherwise that all of the bills of lading involves hearing about the united states ship where you are the the position we would take is that the marine corps exchange hired salem and therefore they were whether whether the marine corps exchange did it through their own shipping clerks to bring court exchange employees running the shipping department or whether they outsource that to a to a broker that that process that i'm arranging for  shipment in either respect they would be the ship so they would be the party arranging for shipment so whether they do it themselves through through government employees working at the marine corps exchange or whether they do it through sales as as an ou process they would they would still be and we've alleged that in the complaint that that's that's the way the process works the cases and