store you now contending that in fact the cost as you would calculated and as you think you see as personal into us policy would calculate is less than fifty thousand dollars that we're headed with this what i'm saying is the whole basis of their motion was that this package that was shifted was valued over fifty thousand as a result it falls within the exclusion and therefore we're not liable for the damage i understand that and i'm asking you are you telling us now that in they give you and are you contending that is worth less than fifty thousand dollars as you p s will define the term under his contract correct and the reason is that not only that but at an earlier stage in this case i think you said the opposite  january of this year and in a matter of tribe or stroud versus u p s and that brings a very very important points one the distinction between that has in this case is that in the circuit case the shipper had under record a shipment that with actual value one hundred five thousand dollars but decided to ship it nevertheless for both ensuring the fifty thousand because that was the maximum insurance the contract the tariff and other items the terms and conditions the excess value insurance approach your make clear that there's a limit of the value of fifty thousand for what you can ship and this  i think if any of us listen to t v commercials you always hear them talking about guaranteed to appraise for double or triple the price so there's there's a lot of leeway about it as a practical matter in the claims process when someone submits a claim and here is the it's a problematic claim because in the claim form they're saying we're asking you for more than fifty two thousand dollars so they're saying we're assigning a value of a fifty thousand but as a practical matter in the and the reason i think this court has ruled that out not receiving arguments for the first time on appeal is that it is prejudicial when you don't have a factual issue developed and everybody d litigate this case below on the issue of was there notice of the exclusion was the exclusion waived what we were arguing until a comment made it at oral argument we were talking about the value had at any askew gene in his declaration that he gave which one all about notice and and and waiver has he said anything to the fact of i filled out that claim form that asked me to point in actual replacement value but really i put in too much i misunderstood even though i can a ship or for sixteen years and have numerous claims suddenly i'm now using fair market value the parties could have addressed that one over there is prior numerous claims ever included anything over what  before that's correct now i'm not sure whether it's relevant given the history in the district court but just let me ask you if someone comes to you and says listen i want i'm making a claim for jewelry the retail sale price that my customer was was fifty two thousand dollars would you respond well ok fine i'll pay you the replacement cost or would you pay the fifty two thousand dollars well they would not be the maximum you can declare is fifty thousand for the never going to get the fifty thousand let me ask it differently so i'm not distracting you by that let's say that somebody says the retail price my customer was willing to pay me was forty nine thousand dollars and i'm making claim for forty nine thousand dollars would you pay the forty nine or would you say well no i want to pay you what your actual cost they will be paid the actual or replacement class so if in this case instead of so many people even if they had submitted a claim for fifty two thousand nine hundred and then came back and said you know i made a mistake that was the fair market value here's here's my here's an in four years from rolex and it's a different lower number they would have been paid that lower number now there's deposition testimony that said that that lower number doesn't exist well it has to be there has to be i mean damage in the amount of fifty two hundred thirty five so that's that's what they signed to it but there's a different place in the complaint where they had a number for fifty one thousand and change and i mean someone has and i know i'm not supposed to go outside the record but there there was that deposition testimony manifesting system where the shipper enters in all of the information including what the declared value is and in this case it was fifty thousand and it was only able to handle a package for you do they or there's my understanding is that all of all of the information about the shipment gets included into that little thing that looks like a target if you ever get a well i think it's conceivable that that for the people who do have access to the information and scan it i i i like to think that all you can ask employees and i can vouch for the overwhelming majority are are very honest packages as opposed to large print them move up a lot of merchandise people can look as if you know easy there are other services that do things like transport jewelry they're armed guards there's a whole honor if you if you agree with me that that the limitation of life villainy is in forcible and there's no dispute about the value because of the only evidence being the claim form then you would not have to deal with that at all provide complete preemption so it's not jurisdictional and i suppose if you if you thought that somehow the federal common law did not that's not a basis for federal question jurisdiction unless you are in the sort of the so called artful pleading or complete preemption field and there's not been complete preemption across the board because we know for example an ordinary contract claim is not preemptive right so i mean i manifest doesn't have that but in order to get the software that they load on to their system that allows them to print the manifest it requires them to agree to the terms and conditions they get that they get a copy of the rating service gu y which has the terms and conditions and they got every year a two page brochure describing the excess value program which which also includes the limit  time and incentive in knowing what the terms and conditions are when that when they're shipping something of great value also in this particular case it's very unusual in terms of the notice issue e i j had sued u or anyone who is routinely using u p s s services and is declaring a value and submitting forms has all the incentive in the world to know exactly what the procedures are and what's available and in the access them the full package is also generally hour shifts and you can see on the shipping label google earth who the shipper is and who the recipient is and sometimes if it's going to be going you know from some place it could be that and i think just under the point for me earlier that it could skew things and that if people understand that even though there's a fifty thousand limit people actually routinely could be shipping things of much higher case in in i think the commodity recovery case it talks about emory and they've got a limit of twenty five thousand unless you make special arrangements so that the industry as a whole has determined that it's in their interests and in the interests of limiting theft and protecting their employees from from caring who are not armed personnel from caring super high value things that to have these kinds of you i'm not sure this isn't the case but i'm just trying to get this clear your argument seems to me is the value of the purposes of your exclusion and limitation on ability is defined as fair market value with value in terms what you're willing to pay is when someone so of mit's proof of a claim or source emits a claim or as proof something that has actual value you know let me ask the question a different way somebody is ship story worth forty nine thousand dollars that on but i believe i just can't say with certainty i believe that and that in the end if someone said i ship something with a fair market value of sixty thousand dollars and i'm submitting a claim for forty thousand dollars because that's the actual cost and here's my invoice that proves that i believe that claim would be paid i don't think that the that the company would turn around and say ah but the retail value of your life saying in essence is that you're  would be in a position to make that argument or support that argument with ev you know this is a list of all cases of pleading based on a plea mistake and you shouldn't own going in oh you would in on very quickly going in that this fifty one thousand dollars or fifty two thousand dollars the number move around a little bit was fair market value is paid by the ultimate customer i mean this just and we're here after god knows how many hours of attorneys fees arguing over what should have been i'm making the number up is i don't know what margin is a forty thousand dollars claim thirty five thousand dollars claim if your honor there was dialogue in the claims i will thank you very much records portion of the terror i don't know how many pages it is historic from