it on the writers i respectfully reserving five minutes for rebuttal this appeal is from the united states district court for the eastern district of louisiana and is about whether the police can avoid being bound by their own contracts sold the transformers to entergy and contracted with central oceans to arrange transportation services to the substation central emotions and term in turn made arrangements with the apple that central oceans for itself on behalf of brawl schmidt entered into a contract dated november fifteenth two thousand and fifteen with be your transportation to move and install the transformers be your task to copy the contract and are away one fifty one through fifty two when they go also subsequently filed a motion to dismiss pursuant to a force election clause in that bill of lading despite their own contracts they follow the motion for summ issued their own contracts for the individual segments of the overall multi modal shipment if central oceans if central oceans bill of lading was the only contract with respect to the transport of this cargo we very likely would not be here today because it actually fall squarely within curbing kayleigh but that is not the case this case the app ollie's issued their own contracts pertain it's their specific not be allowed to avoid the contractual consequences of their own contracts the rules establishing curbing kalayaan work lie too broadly in my opinion by the district court are the facts of this case and his judgment should be reversed district court also erred in finding that the apple isa met their burden of proof that there were no genuine issues of material fact concerning which contracts or contracts govern the relationship between the parties and whether rol schmidt had agreed to the covenant not to that contract roasted not agreed to release any party including foreign carriers or central oceans from any liability for damage to its cargo while in transit to introduce substation transformers from any party involved in their ship and addition more importantly you have this before the district court demonstrated that central ocean did not accept exclusive live billing or the fault of its of its sub contractors for the damage to the cargoes when central ocean's was presented with this cla back to the district court for proceedings yes or it should go back to this record and the contract between the apple leads and center oceans and be additional fact findings or just the district judge just look at all the contre although i think they they they may need to be some additional facts discovered we were placed on sort of an accelerated  discovery plan with respect to this year's issue we had as i recall about three weeks to exchange rate discovery on this issue and so i think that perhaps this will fact finding maybe necessar recall illinois central having a limitation of liability either and its proposal in terms and conditions or what percentage did you receive from central asia and if you're of the claim that you're looking for this the overall damages to the cargo are estimated at about one point eight million dollars but your claim the claim is about one point eight million dollars what was recovered from from central oceans in the virginia case was  industry form of them co form the multi dock ninety five it's no changes to it is designed to cover the exact situation where you have international travel over the ocean over the rails and over the roads that is what these contracts are designed to do cause fifteen big which is the himalaya clause in this particular case this isn't to streamline the maritime commerce but providing the merchant this case well with a single cause of action against a single defendant in that case  the multi transport operator the and the i c c central actions and give them one chance to collect against that party if they don't like the limitation of liability the package number that's contained in the bill of lading they're able to negotiate with that before shipment that's correct your honor what they cannot do is then come after and try to go down the line when there's a himalaya clause that prohibits them from doing so and this case will doesn't really contest that the central bill of lading is are servants of the multi modal contractor they are the actual carriers of the transformer cargo they are the they are the intended beneficiaries of the himalaya clause so they're reduced to arguing what they do in this case is one we didn't express lee agreed to the terms and conditions of the bill of lading and then to that because they are each of the sub carriers the sub contractors issue their own transportation documents that somehow eliminates the ability of these sub contractors to claim the benefits of the himalaya clause and frankly both arguments fail under the political jurisprudence supreme court but this exact same it issue in the context of a real carrier in himalaya closure from either limitation of liability and then the the ocean carrier hamburg suited their particular bill of lading provide an even lower limitation of liability in the real care it's also take able to take advantage of that so what those terms you can avoid it by relying on a catchall phrase that was also sitting under other cat contracts with great men or other contracts expresses it under the bill and is bound by moreover as it is your honor was pointing out when they did when they opposed the motion to transfer what they didn't do is contend that the central asians bill of lading did not govern this litigation they waive the argument that that bill of lading is no longer the governing bill of lading what the supreme court did ink a line is set out of an overarching point that in multimodal commerce you've got to have one governing contract and that's through bill of lading it produces certainty to everybody it helps with the uniformity demands of maritime law and it provides predictability anyone any holder in due course that bill is going to know ok if i have a claim i'm going to have to sue the issuing carrier the n and then those people have to go after the individual subcontractors makes it a lot easier for the for the for the cargo plane if they don't have to chase after a foreign defendant such as the ocean carrier or a foreign  way whoever makes the decision to enter into that contract there's the consequences of that contract now the argument that the sub contracts issued by the various actual carriers in this case somehow  the the negative customer proposal an internal way bills issued by illinois central or the bid proposal of berar the trucking company that these somehow prevent the likability of a separate overarching bill of lading simply prevents somehow prevents them from claiming the protections of the himalaya clause that doesn't make any sense is inconsistent with the supreme court's findings supreme courts allow those himalaya clauses the n b a c c in this case particularly said am entering into this agreement on behalf of my servants and to treat each of the multiple stages of a multimodal transport as a separate liability regime in a separate contract eliminates what the supreme court was trying to do  caroline and put in a uniform comprehensive liability scheme when there is substantial maritime commerce as there is in this case as most other laws contracted and they're going to enforce th limitations and the himalaya clauses in this case central's bill of lading noted that in clause one it applies irrespective of whether there is another unit modal or multi modal contract involving want to several transport plus ten central agreed to assume the responsibility of the acts of the missions of its contractors as if it were their own and so consistently and third with that they drafted clause fifteen day which says hey since i've taken on the responsibility of the servants you can't sue my service clause fifteen relieves all of central servants the actual carriers or negative illinois central broad from the liability to roil they still have liability to central under the terms and conditions of the respective sub contracts with central but it is not up to the oil to assert those remedies roils remedies unaffected coggs  uncontested in the case that the central ocean's bill of lading is the true bill of lading and that means we trigger the decisions of the supreme court in k line and kirby because both ca and kirby pointed out that multi modal transportation has evolved over many years now and due to technological advances the industry itself came up with this idea of having a true bill of lading issued a lot of times and the o c sees non vessel operating common carriers and as a matter of fact judge smith referred to the public policy reasons in a park ace back in two thousand industry and that was the mannesmann case versus m v concert express was in two thousand in the fifth circuit it was two twenty five f third five eighty seven pages five eight eight and five eight nine which judge smith referred to how this whole industry has developed this answer to what to do with multi modal transportation and so therefore we submit that it's an open and shut case that instance that would take this case out of a simple application of k line and kirby in regard to berard berard executing a contract only with central oceans it did not issue any piece of paper t with ro smith we rely on the through bill of lading controlling the relationship of royal smith to us royal smith has royal smith still has its right to recovery  we i was not aware of the fact that already settled the bridge in you case royal smit has its right of recovery against the true bill of lading issue or and apparently it has settled that case the as judge afeard pointed out below what w smith has now is in has its recovery from the person it went to to handle all of this multi modal transportation and agreed to the limitation of liability in that contract per  limitations so now the only thing that remains as pointed out by judge african his opinion below is the fact that central oceans can come and try to get indemnity from any one of these three a pelleas but of course that test would only be in regard to what central oceans paid roiled schmidt to settle the case which are the mere two percent which is probably five hundred dollars per package or something in this room potential hits the home run and recovers against central ocean central oceans always still has its indemnity claim if you come back here and come after the pelleas but this this points out exactly how the industry and the screen court has evolved a solution to all to roy smith as a customer we had much like there are a contract issued to central oceans there was a way bill that was attached to the summary judgment that was an internal transportation document that wasn't even use external to the railroad that simply told our transportation crews how to move or where to move the rail car this case as you heard there is no real reason here to carve out a line or curvy exception there just isn't one royal smith admittedly that the bill issued was a true bill which they did in in response to the summary judgment it removed that really the only factual dispute that the district court had to to contemplate because at case there it was clear that wasn't a true bill you had an airway bill that covered the transport from seoul korea to chicago and then a subsequent domestic way bill bill of lading that was issued so that's not the issue you have here you have one consistent through it made it excuse me admitted through bill covering point of origin in rotterdam all the way to destination in st gabriel louisiana there just really wasn't anything other for the fox finding or anything along those lines that court had to grapple with and once the admission was made of the transforming defendant performed on a discovery to determine who actually caused the damage to the cargo there was at least initially produced by the insurance companies and the plaintiffs a report of claims adjustment essentially but it was sent to do not participate in that that we weren't even aware that this is damage tha occurred until recently i suppose the damage there was an argument in the report that you essentially had excessive vibration or some issue that happened with a flat spotted rail car  speculation and there's we just haven't started the discovery we didn't get to do that portion of the case because the judge recognised the through bill and it's it's himalaya clause preventing any slaw suit against the subcontractors essentially that would be a central oceans are delusions going to come you know central oceans would then have to come in and argue about who is essentially liable to it for some damage caused on one of the three legs of our involvement in the case police are allowed to avoid the consequences of their own contract which contracts in this case on the facts of this case what happens next time when there is no coverage not to sue in the for a bill of lading they're going to be arguing that their individual contracts are issued government because they want the limitation liabilities or terms and conditions that may apply from those contracts so i think the analysis needs to be a little bit more involved you just can't say here's kirby here's k line here's a true bill of lading we went that's what they want to do and i don't think back can that's good for the principle of uniformity of maritime law that would require carving out an exception to caribbean kayleigh right well now that's certainly an exception but i think that we we have to look at the individual contracts they issued three contracts they treated this shipment not as an incident in a motion that they treated as individual segments they issued their own contracts for those segments they were the performing the benefit of another contract and i understand kurt make a want to understand the principles behind them but i think on the facts of this case we need to dig a little bit deeper