claim can be waived where the waiver is not in a direct agreement between me the owner and the carrier but in any nother agreement in this case we're dealing with a transportation agreement russell's quote transportation provided under the contract close quote that my reading of that is that it goes to the transportation provided by the agreement in other words we've got a situation here where a transportation green was agreed to is basically a service agreement it is not the actual contract of carriage it doesn't specify a particular cargo going from point a to question i believe is the proper waiver that it covers the entire transportation chain now that some of it covers the entire transportation chain and the transportation contract between g a has a as a waiver why wouldn't that waiver applied everyone in the transportation chain because the contract was in artfully drafted and limits the benefits and terms are only two the signatories so that means you could have a situation so what you're saying is this situation creates the following anomaly that the shipper and the carrier have with the car back amendment as between themselves yet everyone have relationships between the shipper and with the carrier and others that are going to be governed by the current nec amendment but as between themselves they've waived it that's that's what you're seeing is the result of well we're have here you've got a agreement if the way a reprise which we say doesn't because it's a very bad agreement but if the we are applies then you have a state court right of baksheesh it's not going to change between signatory and the other thing that that creates a problem here is really the district court in the one hand enforce the waiver clause against mckesson and then the other hand refused to allow them to super contract by and under that same agreement ignored the fact that the actual contract of carriage governments that that transportation dream is nothing more than a service a great actual bill of lading that was issued for the cargo in which mckesson was named as applicable throughout the transportation to work they should have said is that they should have been left out that language that the terms and conditions of this contract are only binding on the signatories they should have said that and we turn to conditions agreement are incorporated in and also binding upon any party affected by the transportation arrangement but they didn't say that apparently they were not aware of how the transportation was going to go forward particularly the and that would mean that you would argue that the way her applies because that's what the parties agreed to and that would be consistent with your interpretation of fourteen right along the route which is that he  agreement the waiver would apply throughout the transportation chain because language there was transportation provided on the contract so i asked the question again isn't that now  valid car mack claim waiver surely you don't have liability under the car back amendment is it your position that you have a breach of contract claim yes under the bill of lading yes decision i don't think it is something that should be decided on summary judgment there's just too many factual issues there saying we don't know who did it well we certainly know it was a group and we know that because of the way the crime was committed it wasn't a one on one person with no crime of opportunity we also know that happened very quickly once niigata he left the truck that suggests monitoring by a group that helps these people apply only to the shipper and carrier doesn't apply along or throughout the transportation for a change thank you not that central issue to the case the interpretation of the statute and that that language for it to be  of the transportation involved with respect to the move and that would include the ship or the consul and the intermediaries and the intermediate carriers in between any other entities because in transportation transactions they're never really simple you freight and there could be other parties involved in the chain so i think it's your question that language the transportation provided under the contract is cool so that transportation transaction why wouldn't the owner of the freight always intended of knowledge meant of a waiver from two parties identified as the carrier and the shipper those are the two parties that are essential and in forming this contract now with respect to the owner of the the intended third party beneficiary of that contract that can't be read into the contract that's contract law once once we move back into the application of contract once tarmac is weighed we move back into the application of contract th applies only to the parties to the contract so really what happened is really mckesson delegated its responsibility for arranging for transportation to sanity to the ship that was an economic choice associated with the move the informal sort of the transportation item is the rollers thing on the list they're thinking about so really i don't think this was looked at properly by the law partner to have a lot of park and they have a transportation department there was a disconnect in their contracting which leaves them in their spot where they are now the law with respect to the fourteen want to one waiver covers transportation everybody involved and as as your honour's questioning presented it this was not to be applied globally to all all share stakeholders if you will in the transportation chain the results would be inequitable it was actually up in transportation in the country because carriers really never know who owns the freight the industry and what happens when you have inconsistent legal frameworks that are part that are put upon a transportation transaction so kirby is a excellent roadmap in the kirby decision it does with the limitation of liability here it deals that throughout the transition chain the car back waiver would apply but there's also language earlier i think it's in section seven number seven that says the contract the entire transportation now if you didn't have the statute let's say you didn't have the statute and you had that language you you might have even if this language was different if this i would say he must have an agreement with the sugar carrier and  constantly as from the waiver language it essentially said that only the parties to the contract can enforce the the contract so you can't you can't have another pharmaceutical company trying to  t rights under the contract for movement of freight so what you have is the statute and the and the statute and the language of the statute prevail in that apparent disconnect with through with respect to document which governs the transportation transaction historically when there was only a bill of lading with the stork with the case law there would be a just the building here we have a free standing transportation contract and in that transportation contract which there and pursuant to any contracts which santa fe may have entered and they go on to say that that is includes two contracts that being the transportation contract in the ancillary document called a quality assurance agreement that representation is needed joint appendix  all of the contractual terms in the bill of lading and it would be inconsistent with practice so many provisions within the transportation contract eliminate application of an inconsistent bill lady and this from me consisted of and say nothing about liability  honor asked the question as to what evidence was in the record that would allow a fast finder to infer how the theft happened and then decide what would stop it there is no evidence contrary to counsel's argument we don't know who did it we don't know this seems to be a little confusing right jen generally this would seem to be something that you've resolved by a jury you know you put the facts in front of the jury how long the staffs took to take place and if you don't know the identity of the individual people responsible and whether they left suspicious in any way or different from any other truck driver that was there on the route on july ninth the jury can conclude whether that security guard would have been alerted to something suspicious and intervened in the pylea matter to stop the theft second thing that they argue should have been implemented as access control or gate well if you don't know whether the person who stole the truck had a fake or legitimate commercial driver's license or again looked like a normal truck driver big jury can conclude that someone at the gate would have not noticed or any or or saw anything out of the ordinary there is simply their expert says i concur with assumptions as to who did it and i think this is how they did it because assumptions are absolutely meaningless because they have no basis in fact so to your point this is not a scenario where all right something a stall and therefore we know that this would have stopped it this is a unique type of cargo a fact according to the plaintiff's complaint and there needs to be a little more sophisticated analysis us to read where what would have stopped this and w pilot as the owner of the property done in order to prevent that from happening is those proclivities the case that you focus on those properties run of the several cases that that bring but talk about this body of law which says if it's simply but then he doesn't want to be in the title to bring a claim based on that contract you know it's psyche he just wants to choose which of the terms apply i believe the lower court got it right the first time say well you have an intent to limit are well known by being run grossman community particularly the top cats i think they call themselves down in florida that in the southeast of united states this group was running rampant stealing trucks particularly high value