our second case for argument this morning is wisconsin central against high energy the first is whether we have a final decision i've looked at the judgment included in your appendix and it resolves wisconsin central's claim against high energy and doesn't well it may have granted a motion but it didn't enter a judgment he noticed the fact that the judgement doesn't mention allied i cannot judge you don't we have a problem but i my belief is based on a summary judgment ruling that there is an order can't appeal from a summary judgment ruling you can only appeal from a judgment corr don't mention the possibility under bankers trust against malice that the district court is so clearly done with it that the lack of compliance with rule fifty eight should be ignored is that perhaps the theory of the appeal here intended to enter a final judgment or but your honor is correct if that is a an error but i don't think it should stop the court from you and with the issues we're dealing with today the reasons we have motions practice in the district court is to get these things fixed before oral argument in the court of appeals under center right so we have that problem the next question is do we have subject matter jurisdiction in the district court the parties appear simply matter jurisdiction it doesn't establish a holding on that point i understand well so my question is do we have something their jurisdiction what statute makes this so i'm not sure where he does business as you wrote correct so you've mentioned two irrelevancies so far but as i say there's no allegation here of citizenship so we're in no position of the merge is a contractually based charge in other words it's not something just arises out of the air or it's based on contract i don't you realize what you just said that's what got me worried the issue of  you know and federal law is not normally where you turn to enforce a contract anyway that i hope you'll all be taking this into account right and in this case my client was a stranger to the contract the contract for the ship incident issue here was knowing what the realities were with regard to transportation whether it's an oral contract or a written contract or what have you because you can be you can have a first of all we didn't have a railroad facility we had a warehouse where from the limited record we refute that there was truly never a traditional meeting  minds interface with this whole question of operation the flaw that entitle it's the plaintiff to recover the demurrage operation of law doesn't apply in this circuit to the south tech case the court rejected operation of law look at luck of steel the courts that you have to have a meeting of the minds operation of all doesn't work because you can receive merchandise all the time it doesn't make you a constantly or submit to demerge charges status and its relevance to the demurrage fees is it your position in the brief that looking at gross from the eleventh circuit on which the district court relied in and south tech from our circuit or that there is a two step process that first you have not automatically because even if you're a consummate you can no i understand it doesn't automatically write you liable you know that the gross court or you know perhaps it was implicit in the south tech decision that then you look at these other factors of other quite suddenly spell out what they may n said pay see on the issue of wisconsin central rising out of thin air when this lawsuit was filed and even a proper party point if in this case so we believe that's also a defense in terms of the issue of the finding of liability even if you assume that as a matter of law or operate we're consignee there's issues here in terms of how these charges arose issues in terms of we believe we're not fall for the charges we objected immediately as soon as we found out we were other reasons for why the charge of the current you can be avoided liability so as well besides the case law and read of evidence the record of support even if you assume that were we could be liable for demerge in this case because of the issue with the snow the coating issues them sending pleased the court i'm here today to represent wisconsin central limited in this matter guarding the situation to the cases here we first what we feel that one of the seven four three eight does over interstate charges that arrives out of towners such as demurrage and i think that a number of the other cases in this circuit in other circuits have found the same and you th authorizes a decision about who is the right person to pay demurrage yes your honor i think it does when it's raised by the other side in our case we did have a question of who should perjury we made it clear we didn't even s third party we only sued one party the party we knew or was responsible and your honor one of the things to remember is that the fink case which talked about this is ninety nine years old this year and ever since then there hasn't been any bills of lading in which the concert he signed because that doesn't happen what happens is the shipper signs it he sends the cars out there road deliver so if there's something wrong the can simply reject the shipment don't have to pay for it charges don't have to pay demurrage doesn't have to pay anything else but that's not what happened here here this party received and accepted one hundred cars they unloaded the cars also because they could accept the course it would do not always take them back they did do that now they unloaded all the cars they took control of the contacts because they chipped up and then they took the contents and sold them to another party for their work comp not for anybody else's they did have to pay a portion of this back to swift they didn't have to they were dealt with euro all they did was take the money that was federal statute it make they really have a different concept but here first of all time energy is not a warehouse he just is not a third party he's a first part remember most shipments go to people who are receiving the goods to make something else out of the in the case that's what happened here and say for example you were getting metal to make can't you're going to make cans to put food product in so you order the steel it comes in your name the continuity and you take that steel and you're loaded and you make it into something else now you didn't sign the bill late but you're sure as heck to consummate and you're sure as heck t responsible parties when you don't release the cars back to the railroad in a timely manner and let's not forget that's what happened here the river water gets cars back they were real road on cars the shipping public wants to use those cars and they why when we look at think if we look at a number of other cases they talk about a contract by operation of law or quasi i contract and how that happens and the supreme court ninety nine years ago thought that was perfectly fine now like i agree the third circuit get not to do much in the second circuit you may have to do more ok and as you probably know the last change since this time it's no longer the law it changed in two thousand  and this because the growth case went up to the supreme court and they saw the change the problem with the circuits in the i c c s t b decide to surface transportation more came up with new regulations so obviously this is not a continuing problem opinion so the situation here though is that they did all of those things and clearly it can't be said that the seventh circuit intended that constantly who received the cars and doesn't release them on time and remember this they can blame other people for this and they can sue whoever they want regarding why the cars were delayed or whatever but for example some of this stuff is not so i mean if a car is delayed at the border doors doesn't start if the river doesn't come because there's snow good and you release the cars to demerge stops and if it takes two weeks to get there there's no demurrage for that time that's clearly in the ten or so you know this idea that these caused this is not true the failure to release the cars caused to demerge on both ends because the cars were still common there was no room to put them because they want to release the other ones and therefore they had the ones here getting the margin in the ones over here getting the resolved this and that's in the depositions of mr berger all these points that we're talking about now are admitted no question and that's why i feel judge saini found for summary judgment for the railroad those facts all the ones we talked about there on contested and in fact admitted and that's why they're there and that's why we think the court found for the railroad in this case and  disputed any of the amounts or the dates of the times they found for the full amount of the charges and your honor that's why we're here today and that's why we're asking this court to  go ahead and to confirm that the judgment of the district court for wisconsin central against i haven't you have any other questions i could help record between swift the predecessor to alec and c n n regarding getting the cars the amount it would cost to sell and in that agreement it says that c n is making this agreement for its u s subsidiaries including wisconsin central it says it in that bill in that contract that's the normal way that both canadian railroads operate in the united states they have purchased the wisconsin central railroad they also i think own the illinois central railroad and they do all the the accounting portions and the billing portions in canada however they do it and be happy with their wholly owned subsidiaries and wisconsin central is their wholly owned subsidiary and they do the operations in the united states as they always happen in effect a they bought their stock and so they continue to operate with their you know they have an agreement with their own subsidiary to do this accounting to make the contract it to collect the replicate what it was well known in that contract that that was the case so wisconsin central provided the service and c n n its parent is the one it does your county and judge saini found that to be the case when she reviewed the documents thank you reflect that the concert becomes a concert any by operation of law based on its actions in the south that case doesn't require a meeting of the minds that case doesn't say that there was a believe the gross case which is and from this circuit what the  of lading alone isn't enough to make somebody a concert any you have to look at additional factors in the additional factors here been gone over by your honour's as well as by mr fiorello they agreed to accept the cars they accepted the you would like to knock out the liability but i guess otherwise you might have to pay that's true your honor but i guess that part of the issue here is that we've been sued on the basis that we improperly and the district court said roughly but there is no written promise to that effect well why isn't an oral promise sufficient or because there was no oral promise either killed or district court decide that on s the e mail to is taken out of context because mr middaugh said i'm getting one side of the story from mr bergen who says you're all wrong and he then goes back to the railroad and says i'm being told by mr bergen that we have this all wrong the railroad  berglund he event started changing his story about why shouldn't still be responsible because the weather and i was plowed in and there were snowstorms but this issue of getting it corrected is that at that point because it's been addressed and it was addressed by mr mid and could they have done a better job of communicating these things could they have done a better job of you know coming up with a written contract of course but ultimately allied never agreed to be responsible for any charges elad was not billed for these charges l i looked into the charges trying to be sure who is your your response is there is trust no evidence that allied ever made any such promise oral or written correct ok we will have to look at that because that's certainly not the district court stated ground of district district court stated ground is that there was no written promise and since oral promises are in forcible as contracts subject to the statute of frauds which no one  argued we need if there is evidence of a written contract of an oral promise that is i don't see how summary judgment can be granted well i think judge that the position that there was an oral promise is is tyron g admitted there's no written promise and they didn't say there was an oral promise they said warrant we're entitled to imply indemnification under the law which is what the district court also addressed and the law and that is their only title to that if they are  blameless with respect to the charges that they're seeking to be indemnified for and that was addressed by the district court and that goes to the point of the you know what caused these demurrage charges which as mr fear all pointed out was the failure time energy to control the traffic at siding with with the very first shipment they held that you know it was delivered on nov twelfth it wasn't released until november eighteen so you have two days to unload it under the tariff already right off the beginning there are four days late on thirteen cars so that created this backlog and then mr burton admitted that he didn't even understand that he had ordering more cars that were waiting they could they could but under that under the law that the you know sean sign or is responsible for demurrage incurred at the shipping destination the consul and he is responsible for the murder charges incurred at the destination and just again you know was this the best you know agreement tweenies parties now but the very nature of the agreement itself created this relationship and created the obligations on behalf of time energy you know they have again you know not to repeat it but their dream it was will accept these guys will dispose of them will give you the documentation to show that we dispose of them that was the agreement that agreement carried with the consequences and they don't want to accept those consequences they want to blame everybody else for it but it was their responsibility and  the very beginning the very first shipment when allied tried to step in and say we'll help you pay energy said no tyrant you refused to provide the written authorization to allow allied to do anything with the cars at high energies location there is and again you know again this idea that they were an agent they were an agent these are two business parties who entered into an arm's length transaction both of whom received consideration for that agreement as you pointed out these these ties you know they can call whatever they want they were an intermediary they weren't getting the you know taking these to excel energy on behalf of allied mr bergen severing his deposition testimony they didn't tell me what to do with the thais i told them i was taken into exile energy to destroy them because that's what they agreed to do these are two businesses that entered into an arm's length transaction is not an agency relationship and again there are consequences to the agreement that they made although it's an unsophisticated agreement  how is my client bound by their terms he's not that's why the luckless steel case talks about in this in this is circuit you have to have a meeting of the minds you can't just dictate terms from third party and say no sophisticated they have facilities they receive rail cars they loaded rail cars they're found not liable why they didn't agree to be the consummate the fact that you received goods and you make money off receiving goods which they all did they're not charities they're they receive money and be a benefit and there's a lot while because for a consonant you have to have consent and you have to be part of the contract here they weren't well see mr  friel talked about the fact that all these facts are admitted that were the reason why these charges occur that's not the record the record in this period shows those were disputed facts when these shipments records were first shipped swift didn't know what start charging us day by day by day they're charging us because they screw up they couldn't figure out how to get the car across the border the issue of the snow my client couldn't push the real she didn't consider that but the fact is it is in the record it's in the deposition in the affidavit and in speaking of the record we moved for summary judgment in this case the fifth point of did not respond to our fax statement under the law you're required to respond or of that evidence and the right and you'll watch says you have to keep their motion separately so for our motion against the point of those facts rolled in the bit and yet the district court didn't do that but there is evidence in the record about the snow issue about the coding issues about the fact