address two points tampa size why grand trunk believes that the september twelfth two thousand and twelve judgment should be reversed by this court and that the court remained it back with an instruction to the district court the judgment be entered in favor of grand truck before doing so and getting to those two points i would point out to the court that the appeal in this matter and the actual resolution of the dispute involves three or interpretations of three s x of conrail including conrail the corporation itself and then the divvying up if you would of the assets of conrail in addition to that and finally a third document that third document being a transportation board's decision eighty nine taking that into account the two points i want to emphasize are first why the s t b decision eighty nine and the shared asset operations agreement when taken as a whole did not result in c s x a norfolk southern having their own independent right to claim damages under the may one thousand nine hundred six trackage rights agreement between conrail and g t w and for which neither norfolk southern or c s x was other was ever a party and then second why the trackage rights agreement when taken as a whole reflects they can reel in g t w intended the reference to trenton ste warehouse word successor to mean that three thousand or three hundred thousand excuse me square foot warehouse itself or the owner of the of that building which was here on delhi steel and not any eighty five acre land five acre landmass conrail didn't have the right under the tiare to service anyone other than h p s or the warehouse itself in the courts february that is this record february sixteenth two thousand and twelve order in opinion denying grand trunks motion for entry of summary judgment dismissing northpark southern as a party in this litigation to dismiss i should say norfolk southern as a party to this litigation the court didn't properly consider in construe from our perspective decision eighty nine in the detroit shared asset area operations agreement let me ask you sure about that considering really not sure where you're going here are a number of references that one could look at in the decision eighty nine agreement but the one that at least seems persuasive to me is the language in i'm looking for exactly where this appears it says c s x t s r shall have the right to use operate perform and enjoy such assets to the same extent as c r c itself could you know that that seems to me that they've taken this up and they've said that whatever  relating to shared assets and fixed assets in the sense of the limitations that were imposed if you look at the paragraphs that relate to that subject matter they start out with as except as otherwise specified in this agreement that's one of them the second one is subject to the governing agreements and finally subject to the shared asset agreement and if you look at it i think that the judge missed the point in the sense that what you have here from an overall transaction is that yeah but you have allocated assets in those allocated assets so the actual ones that are being divided up between c s x and norfolk southern and those would naturally attach to them whatever rights conrail would have at that point in time and with respect be correct if it was in that category it was in that category he would be correct if it was in that category act or saying this was not this was not it was in the retained assets portion which relates to these shared asset areas that were three of them detroit was one of them  it was another new jersey was another those agreements were drafted and in fact entered into subsequent to decision eighty nine and even though decision eighty nine may on the face of it had given  rights to potentially as the judge indicated to be in the steps of conrail when you had this other agreement that was drafted contrary to what they were given under eighty nine the two rare roads turned around and said one in there are four or five provisions but they said one that can real is going to continue on being an independent corporation to the conference post to own and continue owning their assets three that they're supposed to continue the board is to manage them for the conrail is going to serve as a switching or a yard agent for a yard service agent for norfolk southern and  your what's your best portion of the one nine hundred ninety seven agreement that you would have us look at to indicate that what decision eighty nine seems to say is not and it's fourth i can i can give you i will give you one and i do have one that i would point to ok give me your best if you could bear with me just for second here is if you look at the court's order on page five the court partially quoted and did not include the entirety of decision eighty nine at pages three ninety three ninety nine of that  determination and that part states quote c s x t and s are she'll have the right to operate and use the allocated assets allocated to each of them in the shared assets including those presently operated by c under the trackage rights or leases and then the part that the judge excluded and the part that we perceive is critically important is the language of subject to the terms of the allocated assets operating agreements the shared assets areas operating agreements which detroit balls in this particular agreement may one thousand nine hundred ninety six would fall within the shared assets area and other ancillary agreements as fully  c itself has possessed the right to use them notwithstanding any provision in any law agreement order document or otherwise purporting to limit or prohibit c r c and unilateral assignment of its operating to another person or persons or purporting to affect those rights in the case of a change in control there are two things that are derived out of that one again i think it's the limitation that we talked about before which is reemphasized if you go through and you see our brief with all the different paragraphs where there are qualifications and limitations and then that get you into looking at what's contained in the detroit area shared asset agreement and then finally the other thing that's very important here agreement is in fact eliminated it's no longer valid that doesn't mean that automatically the assignment occurs for the assignment to occur you have to have an assignment in agreement and they never had the agreement they just in let me back up also i think that's the reason why they never brought a lawsuit initially that is norfolk southern for breach of contract of the t r a when they started know that for three years we had this case pending they never had a claim for breach of the t r a by norfolk southern then suddenly after the court eliminates and grant summary judgment in our favor to get rid of all the other claims they suddenly bring this breach of contract claim two weeks before trial or three weeks before trial i'm a little curious that you started with this and that you're spending almost all of your time on this story will be sorry i'm just trying to divine why you're doing it and i'm guessing that even if you lose on everything else if the two individuals that got damages were entitled to damages then you don't owe anything it means that basically wires starting all that's part of it there is the other part to it and i wanted to get into that in that being from our perspective but if you went on this even if you lose everything else you know those any money right money but the bigger the more important aspect of this whole thing is really the precedent for the future in terms of not just think the court has to appreciate that not just the strict it's rate of what's going on in the future is the most important you only get one minute left well thank you judge no i appreciate that and in terms of that i would say to the court that with respect to the ability to enforce this agreement from norfolk southern standpoint or from the standpoint  s acts that first off they don't have standing to do that and secondly putting that aside in terms of the actual agreement itself that agreement does not in the future part of the game if standing i mean they have standing and looking at the conrail they still don't want some sort of they're the one that you say is the proper party here exactly we're looking at the declaratory judgment on an ongoing basis that's what's important to most imported but have a problem  conrail has the right to provide switching services but if you go back and look at the s t b order at pages thirty three one sixty eight and one seventy five it makes it one hundred percent clear that the economic relationship between the customer the notes the customers that were formally served by conrail is now transferred from conrail to c s sex and norfolk southern is the case may be so if you take the grand trunk heavy reliance on the exxon nuclear the t v a case the that has really nothing to do with this because in that case what was happening is the exxon was trying basically to enhance the damages that were available to it in this case there's no  all that we have is a reallocation of the same damages that otherwise would have been recoverable by conroe but for this transaction but how do you be dissed to say it's just a reallocation that's fine but didn't the judge find that conrail failed to prove its damages now the judge before trial said the conrail basically had no damages ok but exercised her discretion the if the party that that clearly has the right to seek damages didn't have any damages then why why can you say so glibly that it is reallocating and these other guys maybe had damages because this was a transaction that was approved by the surface transportation board decision eighty nine clearly gave norfolk southern and c s x the economic interest in the relationships with the customers the conroe previously it had that's would be what her sister lawyers are right that when you read the one thousand nine hundred seventy agreement in its entirety they essentially undid or didn't take advantage of what otherwise might have been in your favor and decision made you know that's not correct what what the what the so called implementing the shared asset and shared asset area operating a green and did was merely for the convenience of the parties allocate the physical operating responsibility for various train movements but that agreement makes it clear that is the shared tacit agreement for shorthand makes it clear that the economic relationship remains between ex norfolk southern on the one hand and the customer on the other the decision basically alec the decision allocated certain assets to different to the two purchases and then some of it to a share area right correct if you read the if you were to read the entire s t b decision here's what it basically says connor ellis is giant railroad we're going to divide it up into three piles one pile goes to c s x a second pint i'm so over simplifying because it was much more complicated from a tax another point of view but one power goes to c s x one pile goes to norfolk southern the third pile we really can't figure out what we're going to do with it we're going to leave it in congress hands then the party said ok how are we going to go about allocating operating are split let's agree that we're talking about the part that was left in  going on here you can't just look at one without the other because tomorrow morphic southern c s x could amend the shared asset agreement and say ok we're going to get rid of the opportunity for conrail to operate at all we're going to have norfolk southern c s x provide the operations and that would be grand trunk couldn't say anything about it because the part of the language that that my adversary didn't emphasize says that reflects southern c s x shall have the right to use the allocated assets and the shared assets so n s n c s x have the right to use the shared assets but the impression at least does exist here that you are asking us to ignore  the corporate niceties of what was going on here in a way that's almost saying you've got it this may be an imperfect analogy but you have a parent in a subsidiary and the subsidiary gets in a contractual dispute i mean the parent gets damages for for somebody violating the subsidiaries rights so why is that analogy wrong here that analogy is not correct and let me try to explain why in this case assume for the sake of the argument that a company enters into contract a cracked amazon will say it's a good example amazon enters into a contract with a customer at home to deliver a television set and because the purchase is more than i think fifty dollars the the customer has no idea what the freight costs the customer couldn't care less it's embedded in the price amazon hires u p s to deliver the television set to their customers house and the question is will who's got the right to seek damages if the customer breaches the contract the answer is amazon does not u p s u p s doesn't really have any relationship with the customer that the relationship between the two shippers at issue here nucor yamato and s d i one in one in illinois and one in alabama the relationship between those shippers was the relationship between the shipper and c s ex and reflects other they were the ones that issued the way bill they were the ones that issued the bill of lading they were the ones that collected the money they were the ones that earned the revenues and they then just allocated the cost of congress operations among congress that among themselves that's what they basically did there's no conall has no economic interest in the transaction with any interference by grand tribe assuming that it occurred was in connection with a sipping these two shipping arrangements that you just mentioned we believe that the decision our position has been in the district court judge edmonds agreed with us you know in her in this case she wrote three hundred i counted them three hundred sixteen pages of opinions one of them dealt with this specific question when she was dealing with it she found that decision eighty nine in the shared asset agreement clearly gave the economic right and contractual standing to c s x and norfolk southern to bring a claim for breach of contract for breach of the trackage rates agreement and to seek damages facts which he held before trial frankly at trial at trial the grand trunk never introduced into the record that in a trial record the shared asset agreement they never put decision eighty nine before the jury they never asked any of the witnesses at trial any questions on the standing question that they just didn't they almost ignored it and said ok all of these congress operating personnel are available in the detroit area what a grand trunk well that he a dirty one or no he'd lost on it and that's what they mean you dirty one why i've won he lost but if you want to preserve that is an issue for this court to consider were for judgments to consider under a fifty a or fifty b motion and renew his objection is to standing he never did that he never did that as part of his fifty a motion or as you're saying to rely upon the ninety seven agreement he had to get that into the trial record i believe that's correct ye let me just try to go back just a little bit and and set the stage here this is not a case in which the district court dealt with this matter in a cavalier fashion as i mentioned a minute ago judge edmunds considered this case the re the pretrial motions filed before her she wrote three hundred sixteen pages of opinions she listened to the very same arguments that the district court that mr loser is included in his grand trunk is included in his brief here and the reality is that grand trunk simply disagrees with both the district court's decision it disagrees with the jury's unanimous verdict it disagrees with the district court's disposition of the post trial motions and it tries by a lot of sleight of hand in a lot of citing snippets of cases to create an impression that is not correct which is the negotiators of this contract mr kerry on behalf of conrail and mr cornu one behalf of conrail and the lead negotiator from grand trunk david wilson were unanimous in their view that this contract meant the conroe had the right to serve the entire property trying to steer warehouse or its successor and i would know i'm the first one to mention those three words this morning so you say one it's ambiguous correct to parole evidence was properly admitted to the grossed point case that's correct and three when you talk to the people that actually drafted it they say it was to give access to the whole parcel just as if your client on the tracks one hundred percent correct that it your daughter on tracks exists going to stand up and he's going to say why conrail had the straight tracks right the originally way back in one thousand nine hundred seven and at the time of the original historical agreements here conroe had to north south tracks that ran along the river in the vicinity of trenton michigan ok and at that point and then permitted the predecessors of the cross ok to both the cross and the wall them in ok and has the right to access the property by building a line directly across the grand trunks tracks from its two tracks in the center of the property that was a right that was a state grand trunk disputed and that was conclusively resolved in the one nine hundred ninety six arbitration ok so congress got the right to build across what happened is the record reflects that the jury had the evidence before it is that mr wilson on behalf of the grand trunk mr kerry on behalf of conrail said look it's expensive for both of us for you to build your own tracks to get across the property to reach the city fighting her parcel it's going to cause a grand trunk a lot of extra expense in terms of maintenance so why don't we make an agreement between ourselves conrail if you conrail prevail in the arbitration and establish that you've got the right to cross the tracks we'll let you use ours as if we as if you  the parties made that trackage rights agreement implements that agreement because conrad was successful in new york attrition the arbitrators ruled the conrail had the right to cross that trial we presented evidence from the negotiators of the contract as to what could do what contrail could do and what norfolk southern and c a six could do once they got across the grand trunk tracks and you know the grand trunk had a variety of positions that they said first oh you can only reach a single building and then we ask on cross examination off the building burns down can reach a replacement building of course you can ok so it's not the building you know as such then they said well it's the customer and well the problem is the trenton steel warehouse that term that you ask about judge mckee there's no such customer known as trenton steel warehouse the evidence or trial showed that the customer was known as as trying to steal storage and processing doing business that i asked this question anybody's except con rails what happens after that in our view not yeah because agreement was how you get from over here to over there exactly and if you look at exhibit eight of the tracker draitser agreement which  heavily what they say is well this governs because it shows a little schematic of a bill that's the purpose of any restriction there is no restriction on conrail once it gets to one of the private property but what is the purpose of limiting the purpose for crossing the track from green trucks perspective from the equipped by with the agreement to have any limiting language at all we don't believe the agreement has any limiting language other than it prohibits conroe originally from serving other customers that are along the trackage that is along the route the access rate the grand trunk granted and there happened to have been at the time the record showed a trial one customer that was existing along the trackage and that's because and trunk wide to keep that customer we have to assume so there's nothing really in the record judge daughtry that that would  makes sense it does make i'll let you go across our tracks but we don't want you stealing any of our customers that what you get over there once you get on private property we repeatedly said at trial once you're on the private property of the eighty five acre parcel you can build whatever track to the customers can build whatever tracks they want congress got the right to run around any private tracks on the eighty five acre blaze but so what what were they excluding what grand trunk says is that the access was only to serve you really mean a building is that what you're saying your own witness said it meant a customer ok well it's a building or a customer doesn't really matter so their position was it didn't really matter whether it was a building or a customer but that they they insisted on taking the view that they had the right to restrict what happens on private property i'm asking a different question sorry what do you say the restriction what was the per you started to say what was the purpose of the restriction they restricted them they couldn't just cross the tracks and do whatever they wanted they restricted it to the trenton where house i don't believe that's correct your honor but when that didn't mean asking what is your version of what that mends but when the parties used the phrase trenton steel warehouse or its successor as we said in our brief and as we said throughout the proceedings and argued to do jury and argued to the court in connection with it with her rule fifty two findings we always took the same position which is trying to steal warehouse or its successor was a shorthand way of saying the property ok but what does that exclude it doesn't exclude anything but then why did you have  why is there i'm asking you why when they negotiated this did the limits the right to cross what was the purpose of that limitation and what did it apply to you to say something about another customer says another customer along the trackage called e c levy ok and where was he thinking up so if you're going to use their tracks this is a restriction was you couldn't pick up their customers along the way on the way to this parcel similarly i assume it's theoretically possible to continue these tracks on pass this parcel in theory that would be pos and you couldn't do that either right you know you could you could use their tracked only to get to this parcel whatever that meant i believe that's correct ok why why would the party civil limited to one person know why i'm sort of curious about right you were crossing their tracks that's correct and that was the issue right there the original issue was could we cross that was resolved in connor else favor now and for the benefit of gran you have the right to cross tell me why once you cross why would you not be able to go beyond that property and the right to get that so this other company that existed how would you get there who's trapped would you say the other company is located on or switch if you look at it i forget which exhibit is it might be five twenty one on the record but there's a over it is an aerial photograph my colleague can help me if i got the wrong number but there's a customer called e c levy who's got a switch that is located along the blue part of the trackage rights route which is exhibit a to the trackage rights agreement we clearly understood that contrail norfolk southern ca essex could not serve e c levy because they were located along the trackage and the agreement clearly song along the track was trackage along gran along the track of the crossed right so we couldn't use grand trunks tracks for that purpose once we got on to my not right that you you were you with a ceded to some restrictions in return for not having to spend the dough to build the cross that's actually a fair question except the evidence at trial wasn't really that the evidence at trial was that the cost of construction was not the real issue the real issue was that grand trunk would have been required to  used the phrase restrictions judge a judgment you action was then the original eighteen ninety seven or whatever didn't that isn't that the one that said you could cross the tracks and i wanted to get to the right of the to let you cross the tracks but we're going to only let you serve the eighty five acre parcel that was the restriction to which can really read so i think in response to your question judgment peak if the ford motor company had built a plant one mile down the road on adjacent piece of property and they were going to have one hundred thousand carloads a year you can understand why grand trunk might not have been that excited about letting conroe use this piece of trackage to move one hundred thousand carloads a year on some other porcelain you would have had to go further down the track edge and build your own crossing crossover and then you could serve that additional parcel correct you just didn't get it in this deal that's correct i thank you i  honor i have three points and i want to make with respect to this track iterates agreement first off and i'm going to skip past some of the other comments concerning whether we preserved or didn't preserve by way of evidence the other question that was raised in terms of the issue of norfolk southern stepping into the suit shoes of conrail and being able to sue there's a case directly on point now or brief on page thirty six that says we do have that right it was already hundred ninety seven and all the rest of it in fact the evidence that there was introduced was limited in the judge spits out record to be limited but putting all that aside what i want to get to is this when you go back and you  look at section one and you determine what restrictions are put on there there are restrictions for along the track that went to that i should say the track brand trunks track that led into the industrial track of here on bailey steel company which allowed service to be made but these restrictions and every one of these witnesses including wilson kerry and le doux all testified this was a unique type of a trackage rights agreement and because of th uniqueness there was an additional restriction in the restriction if you look at and write in section one that restriction is and people seem to go past it including the district court judge it it says an either it i'm sorry it's a subject to the terms and conditions here and provided g t w hereby grants to conrail the right to operate its trains locomotives cars and equipment with its own crews here in after refer to his trackage rights in either direction over the following segments a beauty w railroad for those purpose of serving trenton steel warehouse or its successor here in after industry shown on the planet attached year to a major part hero that's any different than what mr said they agreed that they weren't going to be able to pick up customers on the way to that site and they couldn't go past it know that it's an additional restriction because it's a purpose restriction and the purpose restriction applies to that's a that's one that's in additional restriction that limits even using the track for the purpose of serving anyone else even when you get onto the track of your own belly steal only if only if you win in the interpretation of what trent steele warehouse means and i'll get to that right now why isn't this at the success didn't they sell part of their property it's not a successor that's a very good very good point your honor it's not a successor because when you look at the common  terms that are used in the commercial transactions in a is defined as black by blacks even a law dictionary a successor is and it be a corporation that succeeds to another cooperation there is no cases and i don't believe they cited any cases that suggest that you can have a successor to property or a geographic area so this eighty five land mass isn't subject to successor is made but there is this new business that on this eighty five or property who can take construction materials in there our client grand trunk western because it had the right to do that in terms of it's a growl does it have tracks through the metal of the eighty five and makers that would allow it to arrive it had tracks that lead into the h b c industrial track in that would allow it to arrive but into the other the other entity instead of curiosity mr larger assuming that you were right and they wanted to serve the other portions of the city five acres they could still they still have the right to crush your tracks and to construct their own tracks to get to the rest of the eighty five acres in any event do they not i don't believe that they do not under the eight hundred ninety seven crossing does it it's not your honor and i don't know why i'm not making this clear but it's not the right to to the end of into service the rest of that property what it has to do the restriction is you can't use our tracks to go over for the purpose of serving anyone else got that i got my bets what i'm saying but you're not understanding my question are ok not being clear enough let's assume that you know i'm just curious what happens in the future because even if you're right that this agreement says you can only use they can only use your tracks to get to that one portion of the parcel you don't dispute that is even if the sim you're right about that there there is a way that they could serve this new business there isn't i can respond they would have to then utilize the crossing agreement build their own track not use yours to get to the other portion of the parcel i would disagree with that you want us because that falls right into the land mass interpretation again that in fact they can use our track to get to that that parcel of property and they can't they can only wish you would read your agreement as having also forclose them doing that in the future on our track they can go and make they can go forward and go to either agree with us and that's what i said build their own track i'm not talking about using your track thank you interesting question we've studied the briefs carefully so you're not missing telling us anything the case will be submitted and you major in the court