construing the contract between t c c and appellants as to preclude t c from recovering it's contractually stipulated liquidated damages ellie's fail leadership their minimum quantity  let me exploring this case concerns the construction of twenty seven separate service contracts authorized under the shipping act of one thousand nine hundred and four terms of which are identical centrally the contracts the containers that desired to ship with t c c service over the course of the one year contract or a pelleas commitment to lower the freight rates they would be charge the contract required to  evenly and that's a quote and this is a quote as well as far as possible and quote over the contract term the shippers failed miserably in satisfying their obligations under the contract after eleven months with only one month remaining on the contract term they had only shipped thirty two percent of their collective committed quantity which is a shortfall of over one hundred thousand containers for the total show person of the apple he's here over seventy thousand have only shipped thirty two percent up until the very last couple of wages maybe they're not separating them out as far as possible but the clause doesn't require them to shift evenly like a single amount every week right it might be that for some shippers it was only feasible to ship at one point during the year or maybe a few points during the year so you wouldn't be entitled to the full occluded of damages if they had reached that you need to are the standards by which that kind of thing would be judged like how close or do twenty seven dollars trials to determine the feasibility of each ship or spacing and out their shipments to a greater extent than they did well actually that's what in fact would have to happen if we got into this particular factual dispute it would require twenty seven dollars trials in fact the case as it was brought required twenty seven trials this was only consolidated for the purposes of this appeal but how it would work is that there are busy seasons and there are quiet seasons and there's nonexistent seasons and on the busy seasons the shippers  the quiet seasons they might ship less and on the nonexistent seasons they probably wouldn't ship anything at all but whatever whatever as far as possible may need and should even we as far as possible it's not a best effort standard it's as far as possible so would require proof that the shippers could not ship for whatever reason that not necessarily that they didn't have cargo but they just couldn't sh so far as we're concerned that would be something wrong but you know so you're saying you're saying the standard is that they would have to show it was impossible for them to ship at an earlier time which is spread it out further that's your view that's my view and i think in the matter how you look at it your honor having waited eleven months and still are down sixty eight percent of their contract commitment it's now virtually impossible for them to meet the contract commitment but  should each of them could still need the contract commitment right because as long as they tender some cargo whether or not you can actually ship it they've met their minimum quantity commitment under the contract right they have but but but but but the problem is they have to have fourteen day in advance booking so they have to give us notice fourteen days and thereafter they would have to give you notice nine days after you terminated the contracts well actually yes they would have an order to ship on the  very last ship has two thousand seven hundred to use and what what they can't do and that's the purpose of the ship even requirement is you can't tender every container of the ramp you see on the very last ships and pop they all did that it would be tender the cargo on the last shipments that would satisfy their obligation the fact that you couldn't use it all doesn't doesn't alter their obligations does it well it does i mean if they tender everything  m they breached that even li requirement so as long as they're in compliance with their contract requirements and they'd ship more or less evenly then yeah if we would have to roll cargo over to the next ship and we would not charge them want one standard would be with best efforts would be judged by one's own capabilities you know under those circumstances i think as far as possible is more stringent than that we didn't say best efforts as far as possible me you know as far as it's possible for you to do so we know that the shipper shipped a lot of containers some more than the ship with us on other lines i would respectfully submit that alone went with another shipper and they could have shipped other cargo with you that they plan to do in the future then they'd be able to show it was consistent with their best efforts or with an obligation to do it as far as possible to do some shipments with another ship or as long as they had some kind of a plan to do shipments with you would it would it not well i think what we have to say is that they would have to at trial provide testimony as to how they satisfy the requirement of as well if you use the trial court standard which we disagree with a step towards what the standard written in the contract far as possible in the trial which is going to have to listen to the explanations they've given determine whether they satisfy the applicable standard what what do you do with all of these these new york state cases that are interpreting best efforts clauses and maybe even if we thought there was as far as possible clause with something different that the best efforts clause maybe would apply to such a clause to that say that when there aren't clear standards in the contract for governing what is the best effort or maybe by extension what is as far as possible that the new york courts will enforce such a provision well i would suggest that there is a standard here standards evenly i mean that's just the standard it's not as if would you give a few of them i think you i think you agree with i think you agreed with me a moment ago that they're not actually required to ship even when they're only required to ship even lee as far as possible or to their best efforts that is if they have commercial reasons for only doing it during certain seasons or doing it on a different schedule than that would be totally consistent with the clause you have to make some kind of the showing a new york courts are worried about enforcing such a clause when there aren't clear standards i'm asking how we can find clear standards here for judging that kind of thing well let's let me be clear about our position st we're not saying that is a standard to to modify the n p c they committed to whatever it is it's five thousand containers and at the end of the year they have to ship five thousand dollars containers or they pay liquidated damages for that as far as possible only and then the contract comes to an end they breach the m q c the issue of as far as possible never comes into play if the only time it comes into play is because we discontinued the service eleven months into the year and the question isn't the only reason it comes into play is whether they would have been entitle to under the terms of the contract to ship their entire n q c or remaining in to see during that  week period and our position is that yeah if you prove you could have should have if you prove that you would have had bookings for that you know then then then you know we will you know then you'll get credit for law on behalf of approximately twenty of the app police your honor one we should clarify one point i think it's clear that t c c discontinued all services under the service  contract at issue on april th two thousand and eleven whatever euphemism it uses one and they call it a permanent discontinuation of service or whether they admit what it obviously was a terminations the contract there's no legitimate dispute that number of misrepresentations as that need to be clarified st they now for the st time say oh we only cancelled the last few voyages and we were only in the contract only provided for voyages from china to the us now that's simply not true if you look at the actual service contract appendix a and b that those contracts specifically provide that los angeles is an origin and a destination so they in fact canceled well in excess of a dozen contracts during sailings during the life of the contract they also their service was so poor that you know they themselves said our time may or we can't seem to meet agree that if they hadn't terminated prior to the end of the contractor if they had terminated at the end of april instead of an april such that you would have your minimal going to a commitment would have kicked   substantial evidence but he said well there's a disputed question of fact is the fact that there's no dispute they didn't have containers to ship for the st three months so they actually were telling shippers including recognize if one goes back to look at the record we presented clear evidence as to you didn't show you canceled you know to over ten sailings there you couldn't provide containers you didn't you didn't every ship your buil time a termination that's correct your honor but under the term of the contract if we do look at the terminations provision a clearly provided to send an annual contract and we have an entire year to meet the the during the term of the contract honor has noted that that under clear our new york law which governs these contracts best efforts are you as far as possible language cannot override explicit contract tional provisions so here you know it as far as possible or whatever the standard is and richard is a big difference between the two standards but assuming it's just a best efforts because that's what the district court said so assuming you use your best efforts to spread it out you can't you can't wait until the very end as long and well just in terms of the burden as the court below recognise there's no evidence that we did not use our best efforts they had the burden of proof on that and then we said we used our best efforts and they failed to present any evidence in that regard the balance by that does i mean they do have we do have this chart of all the shippers and how much was shipped by the time of terminations and i know it's an aggregate figure but the figures even more dramatic for some of the individual shippers that as  germination they still had seventy percent or more of their annual shipments to make i mean is it really plausible that all the shippers using their best efforts to spread them out e they're ignoring the evidence in iraq or that says in fact eleven of the they said they instructed some customers not to ship during the st three months because they didn't have cars or they didn't have containers admitted that it couldn't do it so what they're sampson really saying now is you had an obligation to ship as even early as possible on a with centrally weekly basis even though we had met we couldn't have handled it on a see some of these your numbers aren't great so ship it trying to catch up by the end of the year if you're required to do under the contract it's important also to recognize your honor in that regard as the as the lower court recognizes they actually had to contract that evidence like should we really read the word contract in light of the existence of some other country you have to read the contract you have out of the way well your honor i think it just reinforces what it says is i think believe it's my exchange with the jury just now it doesn't seem like they're taking the position that under the annual contract you had to ship a certain amount weekly it just meant you had to use your best efforts are as far as possible as to what you believe which might not be even at all it just means that you have to do as much as you can do that's a different obligation it seems to me what you're saying is not that that provision is an forcible but that you actually use your best efforts to ship it evenly and you were just frustrated c s inability to accommodate were even shipment that well you're on your honor that's true but i think it's important to look at term twenty because it says the current contract may be terminated by either party without penalty or further obligation and now they are suing and if they had met it's not an annual event it's not a weekly obligation then it becomes well without penalty if they're suing based on a penalty a liquidated damage clause so that clearly that by itself would render their their rookie basis for recovery not nail and then further obligation to the other party the only further obligation to the party would exist if this was  if one assumes that there was a preexisting obligation that already existed there wasn't any preexisting application but you forgot to tell them just not you get any anymore yeah you just just just one just one last question i mean if in fact you did have an obligation to use your best efforts or should be believed for a year that could have been an obligation that kicks in before terminations so if you just hadn't shipped if you just sat on your cargo even though using your best efforts you would have shipped more cargo in the st half of the year you would have violated the clause in the st half of the year would you not and there's no evidence that we did that i would not know  submit your honor you have to look at the entire thing it's a hypothetical hypothetical but like in principle it means there could have been a violation of that clause that occurred before termination your honor i don't concede too much but i see where you're going but i do think one needs to look at the entire record and say if they had not prevented us from shipping for the st three months if they hadn't cancelled ten voyages if they hadn't there there may have been a an obligation to ship  to try and ship evenly again it's a cyclical it's a cyclical trend specific shipping is very cyclical and that is why you get an annual i'm to s this case is disposed of by the plain language of the term twenty the service contract because this provision and this provision are well known addresses the circumstances given rise to this case and those circumstances are whether and to what extent do you see obligations survive a terminations by one of the parties to the contract before the end of the contract term term twenty provides in relevant part first cross this contract may be terminated by either party  without penalty or further obligation to the other party under this contract thirty days notice to the other party so that's right i think that the exchange i just had with the other council on your side which is  that that's true there's no further obligation but if some obligations that are written under the contract before terminations you would still be liable for that your honor yes but that's where  the general proposition of non liability and then the nd clause begins with these two key words provided however that if the shipper time and makes the contract before the end of the contract period having not rendered the minimum quantity it shall be liable to pay all liquidated damages provided for in term twenty seven the nd key words in this clause in addition to the provided however language is having not rendered not having not rendered up to that time that that language isn't in there your honor it's having not rendered and to me that goes back to the to the position that that what they're saying is st of all the  if they're seeking damages for a breach of the best efforts or as far as possible clause it would not be the full measure of liquidated damages it would only be some measure of what the shipper would have shipped to they use their did on the shipper is the shipper was committing to a certain volume or quantity of cargo over a twelve month period they were not committing discernable you know distribution quantity and for the reasons that have already been been argued to this court you know as far as possible and or you want to use the term best efforts are not measurable and under new york contract law are not in forcible especially in the context when you have very definitive unclear provisions such as term twenty and if you if your honor please wyatt what are you saying when you when you signed the contract the shippers thought that that wasn't forcible and it was never going to be applied against them and so they just let it in the contract i didn't i didn't want to i don't want to say it was something we certainly kept in mind but also with you look at what transpired in the circumstances even t c c didn't take that ship even really seriously because they inform our clients that we don't have the wherewithal at certain stages of this twelve month member two thousand and ten advised them of the m p c requirement that we intended to enforce the requirement and that shippers were behind on that requirement and encouraging them to take steps to meet the end of the contractor right you never sent any kind of notice that said well it looks like you know you haven't been shipping a lot and you have an obligation to do it evenly so therefore we think you need to shift x amount x date requirement and keep on doing that if the best efforts requirement is an enforceable ship evenly requirement still in the contract that was always in the contract so they still have that obligation and if it's under qualified best we could've stayed in business finish the contract and there wouldn't be much question as to a fight over their performance defenses we could have collected and q c but because the committee don't agree just reach a crazy amount of under under performance