of whether the parties intended to contract for it to transfer from bremerhaven germany to kent kentucky be a baltimore or instead they intended to split the carriage between two separate and in a contract case normally we figure that stuff out by looking at the counter is that we do here well you have to look at the contract as a whole and the happens that's that's fine and i don't i want to have a chance to do that but if you look at the blue anchor line bill of lading that st one is there is the language in that that helps you i mean if the terms required that title and risk of loss of these transformers pass to simmons and thirty at baltimore that's why the parties decided to split the shipment the transport into two because the transformers to gallatin under terms it's call delivered at had again so they were required to deliberate get now one of the thing that i want to mention on the expense account is that this my opponent see a parties intended this to be full scope with conan national mysteries so council i'm ready losing the thread a little bit i want to make sure i get you a chance to use this one the glaring administrative mistake right that's your maybe your best evidence here so is this fellow who gave that evidence was instrumental in negotiating the contract or was he someone who knows a lot about these contracts and pay transfer only up to baltimore and that was the extent of their engagement so with that knowledge here prosimians entergy in orlando and said my company has been awarded the contract up to baltimore luna ankle the not assume any obligations whatsoever for the overland not to retain a carrier for the overland portion not to conduct a carriage itself one other important factor is that  ocean portion was offered and accepted so there the conduct of the parties which is one of the multi factors in new york behind case and the other lines of cases the conduct of the parties is the terminated i contractual interpretation here rather than some four factor test that's mostly about extr well not so true or fine give me something that's really sympathetic that helps you but strikes me as utterly unsympathetic to your side it's clearly siemens germany and siemens energy were involved in this contract whatever else happened they were involved in this contract in that contract they gave up the right to go after people ok so whatever mistake happened i just want to say guys look in the mirror all right that was your fault so how what's the answer to that that's the part of this case that just really baffles me seaman's it was a mistake it was siemens mistake and sorry but it's it wa point that your honor was just asking about when you have a claim of a mistake in an unambiguous contract the curb case determines how you deal with that the curry case that in the supreme court specifically said that when there 's a mistake like that alleged the burden and the and is borne by the intermediary so when the shipper siemens claims that it's contracting party can and has made a mistake that's k n n's and siemens burden to bear siemens takes that up with k n n and can sue them and that was a major factor that the kirby court looked at and other courts have looked at that at that as well and there are other ports in accuracy why did that happen here or did it happen i just didn't realize i believe that there is some testimony from seaman nd corporate representative mister krantz that there is some resolution of a claim under a framework agreement that existed between cain and siemens so that that may have happened although i don't know for how much and i have records show that they have an ongoing relationship absolutely yes and the record shows that they dealt with agreements like this all the time and so that so here here sir here's what strikes me as an exactly your side here it doesn't seem like c s i x relied on this in fact it looks like they didn't even know about it so well in the litigation it was just a man a from happened in the middle of the litigation some clever associate actually went and read the contract well it's not what happened it's no it's a it's a fair point to raise actually we didn't know this document existed until years into the case and in fact siemens didn't produce it to us in response to our discovery we had to get it from a rd party subpoena from news and r t so we didn't we didn't know about this document as we said in our brief some still well into discovery but the kirby case and others talks about how the re's no reliance necessary the use of downstream sub contractors rail carriers and others that don't know about these documents is exactly what happens in these cases and in the kirby case that's why it was so significant for the court that the downstream sub contractor like a real carrier has no duty to investigate these are still kept subcouncil i'm i'm by no means business or economics expert but i would have thought all of this is just about one  risk insurance how in the world to people order their affairs in terms of insurance but they don't know they have the risk that's bizarre so you really have a world in which the rat row doesn't know whether to get insurance shipment because they don't know if it's a true bill that seems crazy well you know that's that's simply the nature of it the and the entire point of the kirby and regal decisions is to make these thr shipments predictable and it's the predictability is through the parties that are arranging it siemens and can then are as the contracting parties the various s entities and and subsidiaries all of whom are on the face of this document know what arrangement they want and that's what they contracted for and in fact in the reagle case the court talked about what factors were significant in in removing the liability of the downstream subcontractor and it's the very factors you're talking about the fact that the cargo owner siemens for it here had separate insurance which they did and they got paid by their insurance company the fact that the cargo owner doesn't contract directly with the downstream carriers that is the whole reason that that was through bill exist one i would did it's not a not a normal practice as far as i know you're on i don't i don't know that it's come up come up in this case you know it in terms of of what we've what we heard from siemens and their argument to get back to what what the argument was for there is that you've not heard anything about this document being ambiguous in fact there's a concession that it is unambiguous there is no you've heard an argument about a mistake being made kirby rejects that type of argument and royal s m i c the th circuit case is directly on point where i doubt a party makes an argument that they have a contract that was never meant to be enforced this is a simple issue of contract interpretation of the kirby  said they are talking about extrinsic evidence that are used by the party to the contract to undermine their own contract and that argument frankly has been rejected by every court that has addressed it the curvy case the royal  case the calton case you treat bills of lading like any other contract and you don't supersede them with evidence that that is extrinsic and i want to talk a little bit about what what the reference to the mister mickey b s testimony because i think that was significant to the argument mister mckee disclaimed any knowledge of the arrangement of the shipment before the inland aspect there was no opening of the door by the way and in fact his counsel objected as a beginning of that deposition to any testimony on that topic and if you read the deposition any opinion that he gave was just that an opinion that there was a was a mistake so if you think about the kirby and regal opinions what are they really about and this case is this court's opinion in the royle insurance case they are critical of big here because in those cases the court simplified and made uniform  previously confusing set of laws you discard complex inquiries and the intent is to make intermodal shipments like this predictable and reliable too to favor them and that's why since those cases were decided there is not one single case from any court now and certainly none that siemens has pointed out in which a court refused to enforce a true bill that on its face applies to the whole the whole shipment and that's exactly what you have here an unambiguous contract it says o unequivocally agreed in the in the terms of that document that the merchant will not be certain names against downstream contractors and yet that's exactly what they did in this case it's a completely uncomplicated issue that that should be resolved just based on a look at the contract itself which involves every party that was involved in the or in the arrangement and every argument that you hear and have heard from siemens is extrinsic evidence to undermine its own contract and that's a logical you don't you don't need supreme court precedent to know that you can't modify the terms or render them in big us with prior outside discussions that the bill of lading supersedes that and if they were allowed to do what siemens claims they can do here they would but i'll give judge morrison judge have the chance just want to make sure i understand one thing correctly so there's this domestic statute american statute that prohibits someone like c s sex from just claiming liability so one oddity of the outcome you're proposing is the you you you get the very thing the statute prohibits is the answer is simple as well the statute only applies when it's a contract just for overland domestic travel the statute doesn't prohibit through bills so that's what i take to be the rule but i'm just not sure i'm right about that now that  correct your honor congress passed the the carriage of goods by sea act and then the in the supreme court has talked about how what the interplay is between those statutes and this court in fact in the hyundai merchant case said that  cobs applies to the exclusion of karma and then that loop was closed essentially in the regal beloit case where they talk about the reasoning behind pogs and because i'm a domestic carrier in the united states  only required to issue a bill of lading where it's the st carrier in the in the line here as part of a through shipment they're merely a connecting carrier not not the originating or or receiving carrier they they don't have to issue  is the terminated in this case not together with the acceptance by siemens agency that together with the new quote presented by couldn't go in to siemens energy and that together with the fact that siemens energy went out to another entity another friend forder h ally council just to give you a chance sure why i want to respond the thought i have about that if you have a through bill of waiting that refers to sub contracts it seems very strange to say the sub contracts just screwed that it was a through bill of lading that doesn't make sense to me you're allowed to have a through bill which contemplates sub contracting to a railroad or jewish serious x was not a subcontractor of blue anchor line c s access admitted that they didn't even know this  because of that mistake everybody understood everybody knew this was not its lou shipment siemens energy rejected that offer siemens couldn't agel germany understood of that rejection and a pertains to the manner in which the seaman's briefing treats the district court and in the in the opening brief for example the brief says that the district court  groups and this is again it's well intentioned but i do want to tell you that that kind of invective directed at a district judge who is by all appearances doing his his task here entirely in good faith or directed against opposing counsel really does does your cause no favors it's apart from the merits but i think given some of the the