move to the last argument on the calendar this morning that read the container terminal vs south pacific shipping if you keep you on the line terminal this action arises from south pacific chippings material breach of a maritime contract the stevedoring and terminal services the south pacific vessels for a weekly service at redhook terminal in the port of new york in late two thousand thirteen and the district court properly found that south pacific materially breached quite his contract and granted recovery for unpaid influences and and also denied south pacific claims for breach of contract law in new york is clear a conversion claim cannot be predicated on a breach of contract claim there must be i'm not in the know i don't mean is predicated on the claim i mean it's predicated on the same facts that the facts results in a breach of contract and they also result in a conversion hook i'm trying to remember which section of brooklyn i got it is not possible for redbook to have behaved in term with respect to this equipment in a way that a breach the contract and also  independent breach of duty i should say that occurs under new york law unless there is some independent duty and there's not on this record there cannot be a conversion claim stated when there is a  that you held their property and you wouldn't release it until being paid well if the if there were no contract we wouldn't even be here your honor but if there were but here you have a contract that this is the district court found was thought of them south pacific gets its equipment back you have a cause of action against them and they have to use that equipment to either generate funds of a cayman used to pay you or they can give it back to the lease holder and they are at least not paying were but we did was as the court excuse us we did no further work we were not obliged to work the only source of our obligation of red hooks up with asian was under the contract to move equipment on and off the facility equipment was only and the only performance that we would be doing was be moving the equipment it doesn't they don't just come on and take their equipment equipment has to be moved by union labor has to be prepared for delivery that's what they were asking the tariff kicks in and this is a federally approved tariff that specifically authorizes a terminal hold so them by the key dates here you're on it november rd their ship stop coming november th november th redhook says we're not going to work anymore unless we get paid is a terminal hold november nd is when ed hickey of south pacific tells red hook we have no money we have exist from when the equipment comes on the terminal that's the trigger date there's a free time and then the and then the tariff kicks in and it does go back in time that's the way the tariff is written that's the way the federal maritime there was a contract in effect between the two or that there's the tariff in effect only if there is no contract the complete contract between the two parties we say the tariff was in effect in any event but that it definitely was in effect services our position has been a number of these services that were charged such as long term storage were not covered in the contract because it was a contract for a weekly service containers the equipment were never kept the on the terminal for more than about seven days long term storage is specifically spelt for in the tariff but in any event there's no doubt that a contract by the material breach of south pacific there it's a two pronged argument your run of the district court found that the tariff did not apply is a gap filler respectfully we just agree we believe that the chair does apply is a gap filler because they are the rules that say that a part of the regulation says it only doesn't apply if there's a contract covering the same services and we say that the contract didn't cover one term storage for empty containers but regardless once there was a material breach the  contract that is the two part that the terminal in the shipper can have an remit that says this is the whole agreement between the parties but as long as it's silent on some subject the terror began to provide terms of that kind of that for certain customers other the south pacific where there are services not covered by the rate schedule agreement of course the tariff does apply this is not eight these contracts don't cover every single service that's given in this case it was a one liner service the ships would come in every week and leave the containers would move through the terminal and come back out the tariff here protects the terminal operator and when that ship stops coming is intended to compensate the terminal with as a turk was theirs terminations short of the of the agreed period and and the short answer to this is that it was a terminations fee not a renewal fee because the terminator iran of the parties probably could have used better language but it was clear as i indicated that they both certainly understood that this was a terminations the south pacific called the determination feehan april th it was only at the time  fact that there might be a six the year it was to provide for the six the year in case there was one and that's that's possibly your honor but that's not in the record in there and and that was still a long way signed it before read hoto to go over the terminal and it covers periods all those were ready to go with it it was signed and then red hook took over the terminal in the years relevant here in this most recent iteration of that in this particular because the parties agreed as i say in the in the answer in april two thousand and fifteen south pacific good greek exactly as red hood says it was a terminations see it occurred this time of the year for its eighty thousand admit in the proposed findings of fact number ninety seven dollars which is in the docket that this applies to the next contract year not to a prior contract here so it could not as a just record  we know we know that from the joint statement of agreed fact which is that the doc at seventy dash one number nineteen on page three on september th two thousand and eleven red hook became the operators of terminal so they could as mr keogh said that is the agreement took effect in january two thousand and eleven a contract they were not square with nonrenewable in year one when you really can not renew a year one in a contract typically i agree it's hard to square but if you look at the plain language of the agreement you have an option not to renew it ha  if you consistent on that particular year but if you're consistent with the length of the fine language and any ninety day period prior to the expiration of year you have more more decision points at which you can decide to renew are n so on and there's reports of that that was not a termination but why why from that information if you're clearly telling the terminal you're not doing any more business with them why isn't that why isn't that a clear indication of your intent to terminate well it's immaterial it was the district court said it was a material breach and there's a difference between breaching terminations if there's a material breach in a service contract the counter party has to have the obligation as has the they so civic did not understand in reality didn't send any more ships and but they got an agreement there was no minimum service call they had renewed the agreement by not for a year for a not exercising the option not to and redhook was still issuing invoices under the agreement that was still activity under the agreement going through november maybe even early december and  there it was a rate it's a rate agreement so what it does is lock in rates for the discount rates for the terminal use so if there's no requirement for weekly service in the agreement make sure you have a birth it doesn't mean if you should not coming in we won't use the birth for someone else it's not you know it's not the exclusion of all of the colors unless you're just coming so they really had no intel no obligation to do any kind of level of service what does it even mean not to renew it if it's just keeping rates in place if anybody happens towards business at a particular time that that's an important it's important piece if you  now i'm sorry ninety something dollars a day so it was a an incentive for us to use their terminal and while we had a weekly service  we could provide that service they would give us a discount rate it there's no testimony and i'm just surmising but it does make sense that you would have  the terminal that you could come to when you wanted and you and take advantage of the rates but it doesn't create an obligation to have a weekly service and in fact there were weeks when the vessel didn't  when a separate written agreement the carrier operating the still does not exist b where no written agreement exists three in rules terms and conditions were no police acute agreement exists this idea that they could go back in charge for services that were provided under the agreement using paraphrase the under everyone admits were not in effect this idea that the demerged action somehow separate short term and long term to merge is a complete bill you made up there's no language in the agreement to talk about long term or short term demur to your position your position is idea of the shipping act in the regulations is that the parties can't contract around the tower i'm agreeing i mean just for the purposes question i'm agreeing with you that for the period of time in which the remit is in place you should look to the agreement and you said your client said no we're not going to pick it up you would agree then that the tariff would justify them charging you for hanging on to that equipment that you left at the time if we had agreed ra properly but there's a question here that the fact that the contract with terminat we believe that red hook terminated the contract but there were no all the services prior to the cost of the terminations were performed under the agreement there were no services perfor so under that timetable there was no time  know in a lease i mean picture of a vehicle lease you're lease a vehicle you leave your car at a garage the garage unlawfully takes your car off give it back to you what are you on the hook for the leasing company residual value of the car and the remaining payment under the lease agreement so we are out of pocket for their wrongful detention for the value of the equipment which that could have come in either the form of the equipment itself or  the valuation which is fine that's one category but it's a distinct category of damages that because we have no access to the equipment we cannot reclaim it and return it to less or worse to view we presented testimony of the amount of damages you know the only question was the amount by the judge we provided testimony at the amount of damages and we provide detailed information on the invoices and the payments the only questions that came up were one whether a rd party was paying to pay because of the detention just just too simple perhaps but if the prop if they were renting the property and paying for it how do they get to own eight hundred and fifty thousand dollars worth of that equipment to the leasing company so they would get their money if they got cash the eight hundred and fifty thousand dollars they would have to then pay it's of the leasing company correct and then you're saying it's that close whatever else back but you didn't get the equipment friend's car back i'm sorry but you never got the equipment for rent car back correct so you never got to return that to the price and then you're on the hook for the residual just it i mean in a car situation might have insurance to cover that you know hard enough as it is right the residual value of the car up plus the payments are presumably equal to or less than the whole the you are the car right the new value of the car yet it's so in that situation  the residual value of your leasing a car you're only paying two years off the value of the car on a four year lease so there's still a lot of residual value here you're getting here in the district court awarded the value of getting some payments above what it was worth at the time of conversion that would overlap with the lease payments the least payments three hundred and fifty million dollars or forty five thousand dollars so it's it's not quite there and we're entitled i think you know that i think you're entitled to an interest either way it's not interest to compensate for the  going back to one of mr question of mr page about material breach district court found there was a material breach that's not challenge on this appeal and the district court made very detailed findings about what's going on i'm not getting paid you owe me money is another ship coming in this week he didn't know they were sending their ships to ensure it then they didn't tell him that night mr hickey of south pacific causes principles in ecuador and says the cat's out of the district court found that that testimony that that description by mr hickey as he gave it a trial was evasive it was non credible and they could even be honest with that with the court a trial on that november nd again pressed by mr savant as they finally say hickey says we're done there are no more ships we have no more money certainly by then there was a material breach there was terminations we say coming in on a weekly service red hook is hiring labor they've got a plan labor through the aisle way they've got a space there they've got a plan the weekly service for the ships in contemplated that equipment would come on and off every seven or ten days and a ship would come in the empties would go back on the ship and away they go and so there was no intermediate servicing there was no continuation by red hook they were waiting to find out what's going on and they weren't be told what was going on they were they were being met with a stone wall now resulting from the suspicion of transportation services by user of n y t sees facility sation may occur for any reason including but not limited to discontinuance of service and so it's very clear that the tariff contemplated exactly this sort of thing happening contract ends unpaid invoices carrier takes off and that's that's that in this case the district court penalized red hook for doing exactly the thing that the district court said it was excused from doing not working any further to handle any of this equipment without getting paid the district court said further performance was excused because of material breach by red hook has to hire labor pay the labor direct them arrange for truckers to come in somehow mount these containers pull them off of the stacks wherever they are is a lot of work none of which red hook would have been paid for and which the district court said red hook was suspended from having to do that's the contradiction that's the catch twenty two dollars that the district courts conclusions by going to this phantom conversion theory that would have been covered by that was really barred by the breach of contract in the contract right now that the material breach of contract is there the breach of contract alleged by south pacific is what duplicate six inversion theory they allege there was a breach  contract and that the return of the equipment constitutes a breach of contract that exactly mirror is and just dresses up the breach of contract the conversion just dress under the contract right in addition to the fees that accrued under the tariff the minute that the contrary i understand when that happens after you you go to the remedy of those in terminal hold no no that's that's exactly the point once just once the breach occurs and the the agreement ends with there's a material breach in a contract terminated which we say happened at least when south pacific said we're done nothing more is happening as a november nd and certainly by december on weapons when the terminal hold was given and that's when the district court believed it breached the germination occurred certainly by then there was no more contract and the tariff kicks in automatically and that provides the remedies of nothing can go out the gate before there's a payment but certainly red hook had no obligation to do anything they excused from any further work even the material breach by south pacific if it may i realize i'm over my time if if i may just speak briefly on that front as a question though supposing supposing the defendants had said ok we'll come in we'll provide the labor will provide everything just let us go in and and get the equipment back so he can give it back to the people we rented it from is that something they were i don't know if they're able but could they have done that you know they could not have that if they st of all they never even offered to do i asked him but but they're not allowed because of union labor requirements or probably i believe the testimony at trial was a miss just a modest as that would have been illegal in fact redcoats not allowed to allow people to come into the terminal and it would involve hiring i only labor directing and supervising that labor found that they offered to pay eight months later they offered to pay the stevedoring fees but they wouldn't pay any of the storage charges that had accrued under the tariffs and they said they'd pay but they said they'd pay plenty of times and they never paid anything but they never offered certainly they could have solved this whole problem in november of two thousand and thirteen by cain the three hundred thousand dollars they owed on the stevedoring charges it chose not to do that red hook is is not  offered to pay the stevedoring fees that were overdue and a terminations fee of eighty thousand dollars but they and they proposed they propose not red hook to pay attorney's fees towards red hook but they wouldn't pay a nickel for this for the charges that were accruing under the tariff and they never reached a settlement agreement this was as i said this was in june of two thousand and fourteen and that's in the record all right