my name's george morier i'm an attorney from madison to brasco which is a little agricultural county seat up in the northeast corner and i generally end up resenting people who are hurt and up and tended to regulate or i've read that congress says what they mean and i mean what they say and that when you're considering preemption you have to begin with the words  a carrier and that carrier under that statute becomes liable and another carrier that delivers the property becomes liable to turn the ship or for any  general well less in the course of the shipment damage the lake or loss to property that's what it says property the property that's interest to the carrier so the st thing that we get to understand here is this is not a ship or carrier case my client but hit by it any defense counsel explain or opine to the district court anywhere in the record what remedy your client has for his personal injur no i never came up lawabiding looks like their answer is not that's actually not i'll be very interested in what they say to that but i cannot discern any remedy and any in any chicago rock island and pacific rebel forces i always have trouble with this guy's name met my church and was working for the circus of the ringling brothers barnum and bailey circus upon the general right of human beings not to be injured by the negligence of another and that case is very close to the case that we have a question about that opposing counsel argues that the march case has been superseded by the harm based versus and the conduct based approaches to preemption how do you respond  honor i couldn't understand what you said about showcasing opposing counsel has argued that the mater opinion has been effectively superseded by the conduct based vs hon based approach to preemption what is your response to that well my response to that is why we're getting so confused by the harm based on conduct banks and houses what you do here according to all the supreme court cases on preemption and i seine he was a poor fellow who went out to unload a truck one morning opened the door and the mob following that's what he was so i don't understand how any of the ship or carrier cases can have any application to amendment had any application to this matter now there's another argument here that is made by a party a defendant who is clearly a warehouseman and i'd like to address that argument you know we've got cases yes but they haven't been superceded by any new modern analysis and i think the best of those two cases is central sticks dutch and i don't know what that means but it's versus alabama state doc alabama state docs was acting in that case as well warehouseman and central sticks lost some property that had been a trusted to them and because impose a strict liability they thought that the car back amendment would apply just beautifully to that and they asked the court in that case to apply the karmic committment to a warehouseman now we have that here we have the word ousmane who loaded the truck and he says under the statutes that govern commerce now in central sticks the court said he has traditionally remained a warehouseman and the chronic amendment has never applied to him because of the difference between the liability a carrier and the liability of aware ozma and that distinction has been traditionally maintained apparently for my search in the federal courts and should be maintained in this case what do you make of the statutory language that defines motor carrier and gives a description of entities t and eighty eight and which the reason for the adoption of that statute dealing with services was explained by the supreme court and they said that the carriers were furnishing the s in the course of their carriage and the congress fuck up but they should control the tariffs and the delivery of the se rvices because it prevented the carriers from taking advantage of shippers and of course we're talking about a time when everybody tariff controlled what they could get for shipping anything from anywhere and they thought that this was a way that the carrier was of aiding their turf by offering their services and then making extra charges for covered we don't cover warehouseman so these guys say well we loaded the truck that's a service that can be provided therefore we're a carrier well they don't have a bill of lading they never issued one it wasn't their truck if you look at the definitions they're a mobile carrier is a carrier that provide service by motor vehicle semi trailer full trailer whole description of trailers that are used in the carriage of goods and this is a warehouseman all they did was load the truck now that is a service that can be provided by the carrier yes under that statute i agree but just doing that service doesn't make them a carrier they have to issue a bill of lading and they have to have more radical and the motor vehicle has to be pulling a trailer and they have to actually provide some transport and they didn't provide any transport beyond moving it from their warehouse to the trailer so i question st and then give me all the background certainly it would be a nebraska worker's compensation claim it be the same for any injury claim for any of the fifty states that's how i didn't work for your client you work for the consul your honor and that's another important fact in this case is that the whole claim arises out of the transportation of the goods it's the whole movement here that's a issue the fact that the plaintiff was an employee of the constantini is a critical fact and so going back to my point the intent of congress in an act in a karmic amendment was to provide certainty to the transportation industry in interstate movements what is our liability going to be if we do this if we move these these loads council the comma commitment refers to those d the claimants right to file a worker's compensation claim and to the point that he has not how to recover the bill of lading that he has no cognisable claim under federal law against the ship or the the say that but you know adams in one thousand nine hundred and thirteen i was amazed at how sophisticated and updated modern the supreme court's analysis of preemption was and they carefully moved through the differences between field preemption and conflict preemption and the presumption against preemption and then clearly limited and clearly defined the preemption of karma ak s as total and in regards to shipper or carrier relationships and then reaffirm that two or three subsequent decisions so and you just run off and disregard the of an atom's that broad language in one sentence there that's our position that's controlling supreme court case law i'd like to ask about the macho her opinion on page twenty one of your brief you say road let me ask you a hypothetical suppose that this same truck had been negligently loaded the car goes negligently loaded so that the load shifted when it was going around a curve and as a result the truck hit a child on the sidewalk motor carrier whether that's receiving or delivering carrier and the constant so i'm not following so if it's in transit it's not preempted but if it happens at the loading dock it's preempted no if it's if it's part of the overall transaction between shipper inconstancy if it's within that in the conduct giving rise to the alleged harm takes place within that transaction karmic amendment applies the reason we're not going to see it with a kid on the side of the road as you've  goods company by the name of west rock in addition to magnum and x p o v so of the goods west rock was dismissed on a motion i believe it was when they accepted delivery of them the court therefore held that there was no way that a reasonable finder of fact could have found expe all was negligent and therefore dismissed them so i am coming to answer your then it's no remedy i suppose that's possible but that's not what happened in this case the comp carrier is aligned with the plaintiff in this case and they are a party to this lawsuit and they're not here today but they are part  to the to the district court's opinion and they relied upon the fulton case and this language the cases make it clear that when damages are sought against the common carrier for failure to properly  that liability for just the actual loss of injury to the property rather mr for going to stop property he's a person that's correct but in and that you know we can ignore the supreme court cases three languages clear well and the language that they you know that the supreme court says and that mr laurean mentioned you know indicates that  and forty one u s one hundred and ninety and met the duty within the contract and not duty to someone who isn't a part of the statement is broad enough there that it would include that we said that was a that was a adopt the conduct theory and i would suggest that it's a in any situation other than that they shippers claim for four emotional distress type well faith processing was was picked and the discussion relied on and then our court went on and said in any event there's two other reasons why there's a long arm jurisdiction here you know so there's the notion that phone somehow signed on to one side or another of these of these emotional distress other circuit cases is frankly absurd counsel i think you prevail if the employee of the con well he was doing something within the scope of his job and his employer requested that he do it therefore i would say anybody that fits within that scope is  situations and i wanted under chapter one hundred and thirty five dollars is liable for damages sustained by a person as a result of an act or omission of that carrier or broker in violation of that part i think that would apply here because there are six sherman regulations in forty nine c f r ninety two b and those would apply under here now the reason they don't apply in this case is because within that same c f r they say they don't apply to unloading or loading and the term accident just refers to a public highway so i think that's why it doesn't apply here but i think in this situation that you describe judge public highway cargo shifts you know damaging or killing the trial that that would apply having i want to mention of course we're relying upon this this broad language from the supreme court i understand you disagree about that that maybe dicta judge welcome but i want to point out that you know the karmic amendment has been in existence for a long time it started out with railroads moved on to shippers in the thirty's with think they called it the the you know congress has never really changed that language so i think you know it's reasonable to think that they have acquiesced in that language from the supreme court and i think they thought adams got it right for the st time the supreme court explained at great length the history that led to the amendment and the need to promote to promote interstate commerce by giving carriers the arranging for receipt delivery elevation transfer in transit storage handling packing and unpacking of cargo comes to your time's expired includes most are the just workers compensation and q includes a lot of things that can't be recovered in workers compensation so i'll leave you with that thought this man was not a would have been damages to the product but he's not the product and that's the main issue in this case is that he's not connected to the kar