ok our st argument is howard stone design versus mediterranean shipping company and all mr cohen are you on the line please the court monday ms michael cohen i am the attorney for a plan to follow eric stone design your honor as we maintain that the decision dismissing this action should be reversed for the several reasons put forth in our briefs i would like to start with a brief explanation of the let me ask you i think we know what the facts are i when i read the briefs i was focused on the kirby case i don't understand it seems to me that kirby put many if not all the arguments that you're making with respect to the facts  destination on the weight goal was in fact the the location which in this case will be in the jersey but in this case the way to go the destination was california not new jersey so on that fact alone it is distinguishable and  where's the carve out for negligence kirby does not carve out to preempt state law except for negligence point it would be contrary to the entire reasoning of kirby to allow negligence claims to go forward and over take the extent that coax is being is being applied that thirteen thousand and thirty eight would know the fight and any of those protections with respect to the that the negligence what is the destination it wasn't but wasn't provided at the outset that m s e would deliver the cargo to new york so i'm originally the intention was to have it delivered in not that in the seaway bill and missy did not and did take responsibility for delivering the goods to new york correct it was supposed to terminate in long beach california and that only changed been presented in this appeal are neither novel nor unique and as your honour's have just pointed out addressed with balance counsel are really governed and determined by the supreme court's decision in kirby  in fact these issues have really been settled as a matter of maritime law established maritime law for almost twenty years now going back to the kirby decision in two thousand and four and the fact is despite the representations to the contrary appellant filed suit against embassy for damage to cargo shift under a through bill of lading from china to new york appellant as acknowledged that it contracted with the embassy for carriage from china to new york in terms of your honor's question regarding what happened here factually the there was international bill of lading issued for the way bill issued for carriage from china to long beach california herridge through its agents requested that carriage be amended all the way through to new york embassy issued an amended seaway bill which court may find at special appendix seventy eight dollars which clearly references new york as the final maritime component simply is not not the case again as your honour's of pointed out the facts here are almost identical to kirby we've got ocean carriage followed by  it's over ruled by kirby i believe colgate to the extent that it holds that state law was applicable has been overruled by kirby as confirmed by the nd circuit in the   and that you know if you if you if that were not the case essentially would allow talents such as harrods to circumvent the contract of carriage and circumvent federal maritime law  time is flying by here a few other points just to address some of the arguments that were raised by appellant and the issue regarding the seaway bill it really is irrelevant again as your honour's a pointed out of the way bill the only distinction between a seaway bill federal maritime law principles and they allow for the enforcement of time or defense and the package limitation defense all of which are clearly incorporated in the m s t seaway bill terms and conditions  when when you refer to the any amended c way bill which provides the carriage of the goods to new york that is a contract that's what they did in this case they ok but the the intermediary their agent think thing they were agent was signature is correct are they actually contracted through to intermediaries and therefore are bound under kirby by the of agency well firstly your honor they admit this in the complaint and also in the rule fifty six point one statement that they contracted with embassy through these intermediaries so they contracted through go forward fill out the setting for various information about the claims of the particular form that's my understanding your honor and you know they kept asking parents claim agent to submit it obviously there was a disagreement between the parties as your honor would see the e mails but if i may address that equitable stoppel issue so the issue there your honor is the parties a gone back and forth by e mail over the course of several months this cargo is delivered in july two thousand  sixteen the equitable stoppel argument is sent really undermined by the declaration of mr a volm in herod's claims agent and he makes two critical admissions in the declaration the st is acknowledge isn't really the less declaration he says that he told m a c at that point look you're playing games with me you're looking for a technicality to get out of liability so it's clear at that point that there was  unquote a penny on the claim so clearly there was no meeting of the minds year there was no agreement there was no lolling or equitable stoppel in the case herod's had ample time almost two months to protect their interests and they failed to do so reason for the other points and the reason what i'd like to add is that we believe the judgment district court should be affirmed because even if you accept all of the arguments that mr cohen has made today is true that still doesn't lead to  goods whether it how you title it it's of no consequence to the determination here but even so even if you reach the court and there is a nd shipment as mr cohen would have the court  again we disagree with that being assessed liability still would not be covered by state law it would be governed by the carmack amendment that as we've been dictated not brief there's extensive precedent on that issue a completely pre amps any conflicting or contrary state law related to loss or damage during the interstate transportation of goods and here to act transportation from california to new york or new jersey which ever it happens to be with clearly for and then that so the state law claims to be preempted for that reason as a matter of contract regardless of which law would apply there's no dispute that contract that that provision of exists in the contract there's no dispute that we are a rd party beneficiary with the right to enforce it there's no  regardless of whether the court except mr cummins arguments are true their arguments related to the claim filing deadline don't even come into play and secondarily they never there were no claims filed with us ever so none of that matters to us koan you've got three minutes and i guess it would be good to hear you respond to the fact that a suit under this contract and the there is a special appendix seventy eight i mean and that is documents that was raised by mr palace first of all no where in the in the documentation or in the communications between the parties did m s e ever provide such formal claim documents for that matter misleading about what they're doing as opposed ringback to them being unreasonable in terms of what they were questioning and i just want you to address the may th e mail i think is pivotal because europe i think he actually cited the back and forth knew that there was no agreement for them to pay right well your honor i mean at the same time mr foreman also stated on the record that he felt he was being fun of her own and that of one point he was told that a check was being cut in the near future  reality is that mr foreman is an unsophisticated consumer i mean he doesn't really know exactly what's happening and the fact that he continued communications through to the end where was all of them leave tonight if i think shows the fact that he really didn't know what was going on the reality is also that he brought suit within a year of that e mail the fact is that he was loath until a certain sense of security which is one of the standards there was three tolling arguments that was made by the that the fact that the plaintiff was told that a check was being cut in the near future would create some sort of all and it creates some sense of security and the nd thing that i would add to that is the fact that that m  his in his is affirmation stated that he was being after previously for documents that he already provided that he was told it was just a formality but you know when he challenged them why they were being asked for these documents re y he didn't get assess factory answer but he did say that he felt he was being spun circles being is it is it your position that parents don't design's agents did not know what a formal claim document is yes your honor none was ever provided to them thanks didn't ask and i said did did is it your position that your client's agents didn't know what a thank you ok we will reserve decision thank you