the issue on this appeal is the proper standard to be used in affording priority to certain claims incurred by the railroad debtor within six months of its chapter eleven petition pursuant to eleven supreme court cases upon which they rely prince a belief was dick milton berger and greg properly read as consistent with milton berger and greg the standard articulated in boston in maine from those same boston the main decisions but we think mistakenly who would and which would afford such priority frankly to any expense of an operating role within the six month period is directly contrary to the requirements of milton berger and frankly especially greg if the standard below were in fact the standard if in fact boston and maine had articulated such a standard it did not boston in maine would have to be overturned frankly as inconsistent with milton berger and greg what is that a standard this is the standard requires a number of things  concern would be threatened if in fact that payment were not made in fact milton berger says precisely that greg says precisely that in boston the main court wasn't attempting to do anything other than apply those two decisions the court will recall that what was that issue in the lower court in boston in i mean at least in that case that eventually ended in the six hundred and thirty four s nd opinion what was at issue there was whether or not the fosdick requirements were essential to six month rule treatment in other words what the district court found in that case was that it wasn't a designated class a six month rule claims or allow any priority to any such claims because there had been no diversion of income to the benefit of the mortgagees and there was also no surplus fun from which those amounts could be paid and that is a supreme court's decision in fosdike those were requirement certainly think this court could revisit that opinion as being inconsistent with greg but i'm not requiring you not require to go there to rule in our favor because i think again i think you have to read boston in maine in the context of the fact that it was applying milton berger and greg what happened was the opinion came up and the only thing that happened below was the court said you don't need to fossick test you therefore can't get this treatment what the boston mean opinion in the st circuits and was and what are the requirements of that milton burger receivership principle inconsistent with greg well the requirements are that nonpayment of the amount must lead to the cessation of a an essential business relationship the terminations of which would result in the railroad shutting down in other words ending its status as a going concern both milton berger and gregg and every other supreme court opinion to apply the six month rule including the circuit court cases have emphasized that this is a special circumstances the doctor has to be applied with with the six month period being afforded this special priority there are a couple reasons for that if you afford the claims a special priority and they have to be paid you make railroad reorganization impossible but more to the point you may also even in a railroad liquidation result in the in diluting the story of the strength of genuine six month rule claims like wages for example as one of my colleagues before the bankruptcy bar is fond of saying if you make all  administrative claim if you make all claims administrative claims none of them are right and if everybody has a special priority there is no special priority and you have diluted that priority for critical wages and critical supplies which are the quintessential six month rule claims the reason these claims which are classic interchange claims they arise out of the practice of railroads of us actually handing off the cars as they enter new and different railroad tracks to that system and issue in this case but the reason those claims can never frankly satisfy milton berger and greg as the penn central court found is that today unlike at the time of milton berger today a railroad cannot refuse to interchange even if there's nonpayment in other words the montreal main atlantic did not have to pay in order to have an advance in order to have this interchange occur nonpayment would not have prevented it from happening and we would have had the interchange regardless so they can't get across the threshold if you know these these two cases are the birthplace of what's called the modern critical vendor doctrine recently recognized in the supreme court's job a companion and a critical vendor contacts a court can't authorize a debtor in possession or a trustee to pay a critical mender if in fact the debtor is able to compel the performance without payment so for example when there's a contract i can as an under modern bankruptcy doctrine compel performance by the counterparty on the contract even out without paying preposition amounts due in this that this service was not essential to maintaining the railroad is going concern we operated the railroad without traveling over their lines we operated the railroad without interchanging with them i operated this road without interchange in with them  more to the point we sold the railroad as a going concern to an entity which operates the railroad without interchanging with the erling railroad it this was never a service that was essential to maintaining the railroad status as a going concern therefore it can't meet the test of milton berger it can't meet the test of gregg which i think actually says that we you have to look at whether payment of the service not the kind of service but whether payment of the service was essential to going concern status and therefore that it was in no mood let me go back to your st point that what i was agreeing with you on was that's the st element of the standard these claims don't meet the st element of the standard they were not necessarily encouraged the necessarily encouraged language in boston and maine is a direct reference to the test of milton burger in greg which says that it necessarily incurred means it was necessary to pay for this service in order to prevent  d that task requires that the be no reliance on the general credit of the railroad in cases have consistently refused to afford six month rule davus to claim is where there is any security device being employed in whether credit terms suggest a very long term extension of credit in this case there was a security device conceded by the witnesses for there were to have been in fact the equivalent of collateral irving railroads money irving railroads used their control over the paper companies or their common control with their paper companies to set up a triangular sound off mechanism where they refused to allow paper company money to be released until they were paid by the railroad that's a non ordinary course structure and under the case law if it's not an ordinary course trade claim incurred on a short term credit basis it can't be a six month rule claim because that's not reliance on the immediate cash flow of the railroad with respect to the credit extension issue the irving railroads clearly extended credit when montreal maine atlantic started hauling oil and was being paid on a much lower basis through the system by a centrally by canadian pacific as the originating carrier the parties renegotiated their agreement entry to an agreement where the credit terms were sixty days and more there is no case that i am aware of our been able to find since the institution of the doctrine where somebody who's getting sixty day credit terms gets six months treatment the document the doctrine was intended for parties who are relying on the short term cas the kinds of parties or get paid weekly like wages the kinds of parties whose maximum terms are net thirty like suppliers of fuel and tie and rails not for the kinds of long term credit arrangements that these parties entered into in m m a essentially acted as a collection agent for the railroad in short you don't need to go beyond boston and maine that three part test you articulated to deny these claims because st th necessarily encourage test incorporates milton berger and greg's requirements that nonpayment must lead to the cessation of a critical business relationship which will result in the demise of the railroad in last its requirement that there not be any reliance on the general credit of the railroad was violated both by the security arrangement and by the lengthening of the credit period to sixty days under a formal contract accordingly under the authority of boston in maine in most of the the bankruptcy case this particular line and these are his words not mine were a critical rail artery between montral and st john that rail transportation when you look at the to the requirement i think you need to look at it from the perspective of the customers that rely upon rail service and to not have  connected with the end would have impaired and made it very difficult obviously for the members of the public the shoppers the customers the consumers who rely upon the rail service that's critical equate to necessity in the case of a railroad reorganization the continued performance of transportation service and the needs of the court in boston maine said and it was relying upon milton berger is that you will look to see whether the claim falls within a class of claims that are indispensable to the performance of transportation services and milton burger is really not the factor the factor is whether these interline claims constitute a class of claims that are indispensable to the continued performance of transportation service and what milton berger tells us is that the interline claims do qualify and that was stressed in the boston and maine decision where the court specifically said and as an example of a class of claims that were necessary for the continued performance of transportation service and satisfied the task the boston main case and milton berger cited two example disruption in the carrying freight and the disruption that that would have on the public and the consumers who rely upon continued transportation so i would submit on to the bankruptcy court and after all these are findings of fact they can only be overturned if this court comes to that strong on yielding belief that the bankruptcy court made a mistake in its findings of fact the evidence here is overwhelming in that regard again based largely on the representations that were made by the trustee himself characterizing this as a critical rail artery agricultural commodities that were serviced by this particular line and in addition to that the in porton so this particular line to the overall financial resource from a dramatic increase in revenue they were shipping five hundred thousand barrels of oil a month which resulted in a dramatic increase their revenue prior to the unfortunate the rail meant that occurred when you look at all of that evidence put aside my contention that i think again that the interline claims satisfy the test because they are a class that is indispensable to the performance of transportation services but when you look at all of the evidence that was before the bankruptcy court i don't think there is any basis to say that the the courts findings in that regard  ineligible as a matter of law from being accorded six month priority again i think boston in maine absolutely puts that issue to rest and you already articulated the ta revenue as opposed to rely on the railroad general credit and i think the facts were clear there are two separate arrangements and let me back up for a nd because boston in maine i think provides guidance with respect to that particular issue and what the court said in the boston main decision that if the transaction had any credit terms so recognizing there could be an extension of credit here and now quoting from boston and maine compatible with a general expectation of payment from current receipts or indicated reliance on the railroads general credit mr keach has indicated that he's not aware of any case where there were  sentients of credit similar to the terms that existed in this case i would refer the court to southern railway versus carnegie steel which is cited in our papers that case involved respect to services provided in connection with oil shipments and the agreement that was reached between the parties is when is that when the m e m a receive payment from the railroad their share of the payments that were received from the interlined settlement system that was a specific agreement that was reached and the agreement provided that they would turn that over money promptly and in any event no more than five dollars days from the time they received it and that in fact is what was done they received payment from the interlined settlement system that included a porsche portion of that included the charges that were owed to the irving railroad and they immediately reminded that payments to watch that those are the facts on which the bankruptcy court found that that was an expectation of payment from current operating revenue do not rely on the general credit worthiness of the m m a again i think that credit it was not a set off arrangement and there was testimony to that effect you know what it was actually the set off there would have had to have been all kinds of accounting transactions because a it's interesting if you look at the trustees initial briefing page forty four he really seems to concede as much where he says and i'm quoting the facts clearly demonstrated that the earning the railroad