judgment decision against it by the u s district court district massachusetts this is a case involving the carmack amendment and other related provisions of federal law which govern the loss of cargo in interstate commerce this action arose when a load of lobsters was stolen out of a cold storage facility an effort massachusetts in december of two thousand and sixteen my client seneca acted it alleges as the broker that cargo shipment from which we was supposed to be taken from massachusetts to california california is where the shipper plaintiff is and that's rich well i'm doing business as maxfield next allegedly hired seneca to have transported that load of lobsters from everett massachusetts to california now the problems arose when the carrier hired by was not acting as a broker but rather accepted so much responsibility for the loan itself that they were actually classified as a carrier and subject to the current amendment and feel free to slow me down or ask me to explain my understanding of the statues at any point of course but under the car back and then only a carrier can be liable for loss of cargo in interstate commerce and not a broker that is a strict liability statute so the stakes are quite judgment to make the decision that in fact intensive decision that the senate was acting as a carrier and not as a broker i think that the case law says that that decision was most to go to the jury and should correct what follows as to the preemption rulings and what follows as to the arguments about the motion to dismiss which seems to me is just history and this case thank you your honor and i apologize before i proceed further may i please reserve two minutes of my time at the end no you asked for it at the  so let me focus st if i may on the negligence count if you if you're found to be a carrier then this case if you're found to be a broker is it true that the common law remedies could still be available thank you st of all we do not disagree with the lower honor i believe that my thinking was that if this court reversed the summary judgment and it also deals make a finding as a matter of law that the complaint itself was deficient which seneca had moved to dismiss under twelve the six so we also did ask this court review that determination to determine whether preemption should have been allowed sort of i guess as an alternative remedy now if in fact there was a dispute of whether your client is a broker or a carrier is a predecessor question that should be resolved before the question of preemption contract and i'd like to remind the why not to the court that that's on the allegations of the complaint itself allege that the services provided with respect to the particular low that was lost were the subject of their breach of contract and under the written  contract so they're in there they're not necessarily saying that there was a subsequent agreement that was later entered into for carriage services they are in their contract asserting that the written brokerage contract is rise to their claim for beach contract for this particular should know and love so if if we were to file that the question of broker versus carrier relay should go to the jury  preemption arguments on i'm unclear what exactly you're asking for thank you well we're primarily seeking reversal of the summary or the vacating of the summary judgment order and that is that we we believe we would take the issue of carrier vs broker back to the jury and there would be a trial on that issue alone as as well as on damages and everything else i thank you are there further questions so if we can go back to my question do you do you do you agree that we cannot review i mean are you expertise well no it's not a question of standard to review is the question of review ability but my question is do you have any basis for saying that we should we have even jurisdiction to review on appeal they denial of the t huron may i st address the some issue of summary judgment and its availability at this on a question of whether an entity is a carrier or broker you certainly not in every instance would it be appropriate to render summary the entrance inferences to be drawn from every single fact and this record are highly disputed the inferences your honor but the underlying facts of the matter undisputed and why did those underlying facts drive a conclusion that no jury could possibly find against you your honor i believe just one he was very careful in her application of the law to the undisputed facts please what are the key facts you are relying on that you think are  positive certainly your honor the the increase really is about control and the key fact that went to the control of the load the legal responsibility for the shipment were these st that seneca agreed to transport the load prior to ever engaging any rd party which was going to actually perform the physical transportation it agreed it would ensure that the load went from everett massachusetts to los angeles california and in fact it did not even begin the process of retaining an entity that would do the physical transporting until the morning of the date that it already selected for that transportation to occur so there's a substantial period of time during which seneca had taken the legal responsibility to make sure the transportation occurred and had not yet selected any additional party to physically perform that task but don't progress often do that in fact my securities broker i don't think he necessarily checks to see if he's got a specific seller i don't know if he does or how do we find it's a matter of law that brokers always first contract with a rd party before they agree to the brokerage under the cases your honor the question is who's legal responsibility was it to take to insure the transportation of the load and here in a number of ways seneca said that's my responsibility of thought you're not the question you were relying on a delay and identifying someone to transport the this is in some ways like last in time manufacturing w in the car max and as a matter of law requires that upon recount or at any point up to the day that you identify a carrier if you're a arranging for transportation and various services until rita transportation including loading packing refrigeration judge who want to made note of all of that language and of the undisputed facts that seneca engaged in those functions but going to all brokers arrange for transportation what brokers do is essentially broker a relationship between two parties between a shipper and between a carrier here there was no brokerage in so far as ritual was never presented with you may hire this carrier or that carrier we've identified these potential carriers for you instead ritual never even knew that there had been a rd party carrier purportedly identified to physically ok so you're saying we should read in to the car macca amendment although the text doesn't say this that the broker must requirement you're all right rather that the comic amendment says that in order to do you can be a carrier by doing things including arranging for transportation not simply transporting yourself a thank you and that the interpretive cases say that while it may be in some instances a fine line between being a broker and being a carrier that one can tread over that line and that one does so without actually ever physically taking possession of the goods by assuming responsibility one of the key facts that judge one relied on and that was under spewed it was the fact that seneca was the one contacted for the release of the goods from the custody of the cold storage warehouse into the hands of what was purported to be a carrier but was rather an imposter ridgwell wasn't contacted about that nor anyone at the you know purported operation of the purported carrier it was seneca that was contacted for identification of the driver and seneca who said yes that's the guy please give him the the shipment and at which point that shipment was never seen again how do you could you could you direct your attention i'm sure you intended to the contract and how you deal with with that yes your honor think you know the issue of the contract is that the case i makes very clear that when determining whether under carmack we have a carrier or a broker it's an all facts and circumstances seneca instead is saying that one document executed more than a year prior to this shipment should be the sole determinant of that issue a that's been let me be precise i think that's not what they're saying i think they're saying the existence of that contract and twenty seven dollars transactions in accordance with that contract at least create an issue of fact that would present the jury i don't think them say they're saying it's t have i've understood their argument to be used as a dispositive but i teach your point that it is a factor i think that's correct it is a factor however just how many consider it as among the undisputed facts she had before her the contract document and what it says and concluded that even then the undisputed facts as you know as when the law was applied to them added up in such a way that no reasonable jury could find that seneca behaved like a carrier that is why why is that why is that why if you admit that this contract is a fact that points in the direction of them being the procureur what is it about the other evidence that says that a jury would have are neutral as i understand it counsel that doesn't help you if the reasonable inferences can go either way then it's a jury question it's not that if you lose they win on cross motions for summary judgment your honor the issue for judge one e and under the cases came down to control and the undisputed facts added up that seneca was in control and the reason for that is that it stood in the middle of all communications if i may return for a nd to judge catus question the the communication surrounding this specific agreement for the transport of this specific load showed clearly that cycle was in the middle of all of them it was the entity which made every determination with respect to the transportation and how it was to occur it stood in the middle of the communications and the significance of that is that ritual had no opportunity to protect itself from the harm that occurred the result under the current academic here is rational the carrier has strict liability for the rational policy reason that it's in the position to up with the harm so i ask what question but the evidence on the morning of the schedule pickup and was that a contract between that carrier and your client or a contract between that carrier and seneca between that carrier and seneca your arm so that would be one of your your points you would say they contract in fact the contract with you says they will contract directly with the carrier yes your honor and if there is you have it is there any evidence about custom and practice in the industry about what the brokers usually important can i go back to the question of if we were define this for a jury issue under the car back amendment do you agree that  thank you your honor those issues were never fully briefed at the summary judgment stage and i don't believe they're right well think that that's another reason your honor if i may return for a moment to the think your honor it's a rational result to ward legal responsibility to the party which has the ability to avoid the harm and under these facts that is seneca because it behaves like a carrier seneca had the ability to that but did not that the purported essentially subcarrier who would transport ritual couldn't do that it's faultless here it had no knowledge of who the purported carrier was and had no opportunity to vet if rich well is a perm that concludes argument in this case attorney research and attorneys recommend you can disconnect from the hearing at this time