on maritime johnson ups and labels at the end of the day when you distill this case down to its barest essence it's simply a common action to enforce a contract nothing more nothing less the labels we can put aside these are if you've been able to understand me i'm happy to restart of whatever whatever suits the court i could understand you i had to ok what often can mean that the so again as i was saying the st issue is whether the contract itself contains terms that are broad enough to encompass l d c the contract killer states that applies to not just the consonant which l d c spends quite a bit of time refuting its status as consonant but it also applies to the owner of the cargo undisputed that l t c on the cargo it applies to the holder of the bill of lading it's undisputed that l t c held the bill of lading and applies to any entity that had an interest in the cargo it's undisputed that as owner of the cargo l d c had an interest in the cargo past just a general background question just like you talk about normal contract principles and it does seem a little unusual to me to have a shepherd contract that's a great question and i have a very clear answer so they don't become back just because we say that they are a party to the contract or that they fall within the scope they become bound at the point in which they take some action received the new couple though the terms of the bill how to handle issues like this completely disregarded that testimony and the more that i think that's improper more importantly but i would say that here unlike most of the case the notified party as we've explained is sufficient based on the declaration that we provided i think more importantly however what we would point out is that regardless of whether l b c is ultimately found to be the does not impact the end analysis because we only have to prove that they were one of four things the owner on signy the holder of the bill of lading or an entity that had an interest in the cargo so unlike the cases that i'll be seeing in the district court green plains and pasco making these negotiable bills of late in the north pennsylvania case that was relied on heavily by the district court and by l d c the court never said that a party that's identified as a notified party can never be that's exactly right order of the bill of lading in this instance was l t c because it was the owner of the cargo and as we stated in our declaration the bill of lading was negotiated to l d c before we tender delivery before they accepted delivery so those facts create the difference between the cases relied on by my own but again i want to focus the court on the fact that here even if you were to find we think they clearly were the con sonny but even if they were not th we don't when we still clearly win on the basis that they were the holder of the bill of lading undisputed the owner of the cargo undisputed and an entity with an interest in the cargo undisputed so whether they were or were not a concept he again is a matter of professional pride i want the court to find that they were because i believe that's the case but it's not necessary for the court to rule in england's favor here there is this case and other cases raising this same issue you had a long time relationship with this company at what changed it must've been doing this kind of thing for a long period of time what suddenly changed to trigger all these cases so that's a great question judge what changed was that england decided that they wanted to change the way that certain charges were going to be handled and in order to do that again and this is not an instance where ingram unilaterally tried to create a contract that would be a surprise to l t c ingram created this contract they wrote the words to fit the language they wanted they then sent it to l t c in april  thousand and nineteen before the st transactions involved in this case they sent those terms to l b c and it clearly states that you as the owner of the cargo a con sign a hold of the bill of lading or a party with an interest are subject to paying these charges that are incurred not for our benefit and not as part of the transportation but after we deliver a barge through the destination point in louisiana there are rd party charges that are incurred and ingram felt those charges were appropriately payable in odor by these parties that are identified in the contract and so we put them on notice and when we put them on notice as the courts have said l d c had any number of options commodities these barges and these if it rains or or conveyed and resold many times during the course of the transportation down the river they could've right then just let let me let me jump in so maybe now i understand what's what's happened so these warheads charges and these other sort of post transportation charges were not those are new in the long history of your business you have not collected tho d the reason that the district court was correct and the reason we request for a firman says because the bill of lading or bills of lading that are the basis of the lawsuit contain a agreed upon form selection clause that doesn't include louis dreyfus is agreement in the history of the enforcement of agreed upon waivers of personal jurisdiction the cases show that that you actually need to agree to hear the bills of lading while they contain incorporated green transportation terms were entered into by separate parties they were entered that's important because the last term there is straight and into the end of the argument in chief when it was explained how we got these cases rising up and why these disputes are starting to arise the sift trade has involved the sellers paying for freight that includes the charges that ingram for example is now attempting to exclude from freight and charge to people downstream or later in the chain of commerce that is the basis of the dispute and it is why the fundamental terminology in the bills of lading in this one standing practice is so critical the use of the word notify party as contrasted with constantly on the face of the bill of lading is significant because under the typical bill of lading jurisprudence a building is a contract between the shipper in this instance cough core group claims and the carrier in this instance in or in some instances it consequently quid could become party through a quasi contract theory but in this instance louis dreyfus is only a notify party in order of your honor it is negotiable and you know why you not think that a party who has and do you think by putting it on that notified line that you automatically exclude any ability to become a kind signy d through negotiation i do not automatically said that that that is always the case your honor in this case it is it is not the the situation that whether it's notify party or concert me either dreyfus that the freight has been but isn't that is that is d that a marriage dispute rather than a personal jurisdiction so you might have a really good argument that under that rating you know you don't have any as it reflects the liability is gets to merits but it goes back to the original undisputed portion of the evidence that this is a civil contract and that everything that the court sees in front of it is consistent with a stiff contract and that by the wrist by the receipt of the bills of lading we drive this was only excepting the performance which it had paid for it was accepting the delivery of title to goods that it paid in the sift contract to be delivered to it it was not an offer from ingram for a new contract where we would agree to personal jurisdiction waivers or any additional liability that the fact is that when a buyer in the course of a sip contract receives title that is the act of performing it provided that it is in fact delivered in all the prepaid designation which was reflected to show you judge  nice or notify parties to the extent they are only rd party beneficiaries of the contract do not agree do not have to do your original question right out of the gate do not have obligations imposed upon them by a contract intervene to buy two separate parts so it's the theory of even if it's even if the notify party here louis dreyfus becomes a rd party beneficiary the only way the cases have suggested that we can manifest assent to those terms is to shoo under them and attempt to take the take advantage of those terms we have done neither all that say you manifest the sense by trying to take advantage of the terms by suing under them but there are any cases that say go the further step to say if you don't sue under them or suing under them is the only way that you can manifest a set like surely you you're the holder of the bill of lading that entitle due to the ownership of the goods and pick them up right and so why is it that you did i guess i don't have a case that tells me you're not that i have cases that say if you sue under that you are manifest significant but why aren't you also manifesting a scent by just being the hol waiting and going and picking up goods because that is because there is no opportunity to negotiate or become part of the contract when all that the party is doing is receiving the performance which they paid for it in other words the goods were delivered we picked them up that was what was bargained for it there was no bargain or agreement with ingram and therefore there is no manifest to assent to an agreement to ingram because we never made an agreement or had an offer acceptance or would you i think there is their response would be i suppose that you had a right not i don't think that's the way that the facts went the the bill of lading i believe probably came from the seller and said here your title to your goods and then when they they showed up in new orleans they were they were received by louis dreyfus it was marked prepaid and the goods  became ours which we had paid for and paid for the delivery obligation it was not as if somebody came to us and said i understand it was the seller or ingram came to drive to send said we understand that you have this delivered contract we've got this ship in your in the port of new orleans that is for you interior documents of title do you accept it it was no here is the prepaid documents of title except your performance and the contract then would would have been proof so in that way i think it's a little different in my prophetical you you laid out well i guess you still once you once the seller since you the bill of lading essentially saying these are the terms and very well could include a prepaid term that is quite beneficial to us as you have no liabilities for each separate  contract of transportation well i don't think that's what the cases would suggest that that it's that those swan step or two steps however it's characterized is sufficient to manifest assent to a contract that you didn't negotiate or for the enter particularly we're talking about expanding fundamental rights like professional jurisdiction i think the expansion of personal jurisdiction through some sort of  and the discussions of the burger king case suggest that that is something that is a really negotiated commercially negotiated type provision it is not something that is i don't think the case i have a question when is the livery considered completed and as a nd part of that question or any of these charges and issue incurred after the goods were dropped on the war is finally delivered and offloaded into the possession of louis dreyfus there is there's all sorts of things that happen in the process from loading all the way through to delivery  well enough to tell you exactly what happened in new orleans for these charges as well that med raises a question for me is when you say this was a prepaid arrangement would prepayment that include charges incurred after delivery yes it it should be built into the agreement if ingram wants to recover for additional charges after the fact and does not bill the full charges into its original contract that's a choice it makes and it's judge larson identified earlier in the argument this is a new new set of charges that are attempted to be eclect to your line of questioning mr pepper argued that essentially they can't be bound here because this contract was freight prepaid on sif terms as we said a very clearly both in our pleadings and in our complaint and in our declaration the charges that issue here are not free these are not transportation costs incurred to get the cargo from illinois for example to new orleans these are charges that are incurred after the barge is dropped by ingro at the destination it incurs additional charges after which left our custody control and possession it incurs those charges clearly those aren't freight but more to the point in terms of mr peppers argument that and again i do believe just more for your quick these really these points go to the merits what i feel compelled to address them is ingram's term specifically say that these charges are payable by parties such as l b c for all the reasons of enunciated before these are charges we couldn't know whether and how much were going to be incurred until the bar has been dropped so the idea that they would be freight prepaid and that that would include these charges it is impossible we've said there were spots over them we couldn't possibly quantify them because until the b business reasons are for doing it this way what i do know is that they intentionally wrote the contract in a way that they would have this right they sent it to l d c it was except that it was about it cetera and that's that's what they've chosen to do if l has rights against the their seller that's between them and their seller and we have no say over that but we have our contractual right against l t c and this was the option that that we we chose to to to go down it was i'm running out of tops i want to address a couple other things mr pepper also said that he did not take advantage of the terms but clearly they did they took advantage of the terms in the most fundamental way they accepted delivery of the cargo there was theirs that was really the only thing that they stood to benefit from in this contract was receipt of the goods and they accepted it they claimed the one and only benefit that a party in their position could have and they did that with without dispute he also mentioned that they didn't have an opportunity to negotiate that's simply not true for the cases we cited for example nielsen versus just a bit so we versus allied pacific coast for pennsylvania railroad mclay a p moeller they all clearly say that there is a remedy in this situation the remedy is to refuse to accept the cargo play chose not to do that in the nielsen case the court specifically said to avoid this responsibility he must either refuse acceptance or find some other person who both as then be of the goods and  all right thank you both for your arguments today we will consider your arguments and the cases submitted