The next case is North over Southern versus West South. Mr. Cannon. Good morning. May I please the court. My name is Paul Keegan. I represent the Appellate North folks on the railway. It's respectfully request two minutes for a vote. Five. Five. We don't get too many appeals from the winners of summary changement. We realize you didn't get the relief that you wanted. This is a case amount of shipper. We agreed in a contract with the railroad to ship 95% of its freight with that railroad for 64 months. But after 36 months, we repudiated that contract by sending another contract with another railroad to ship the same 95% of the same freight with that second railroad. I didn't find out about that contract until right before the Sunday Judgement motions were filed. It was in discovery that was correct. Prior to that, you were just declaring breach and seeking just general damage. It would be one thing if the shipper were slipping a few rail cars with another railroad
. And not meaning it's 95% required that that would be a grant for a breach. But signing a second contract at to send 95% of that same freight with that other railroad is a textbook repudiation. Is it clear that they couldn't comply with those contracts? Yes, and I think that's proven by the fact that they were found to have been breached and were awarded damages that were projected and calculated by the district court. But the district court here found that the minimum volume commitment applied to the aggregate of all rail traffic originating in West Lake Charles without distinguishing between the two different types of rail traffic they're competitive in them. And the capital of Seoul. That seems to be a central holding. Why is that wrong? It's not wrong, but it's also a standard in the industry to do that. Of course, each railroad has a published tariff for every destination in its services. And the party is trying to beat that tariff by promising a certain volume. Now, it gives the shipper some flexibility to do it in the aggregate. So that the shipper does have some ability to move some traffic in another direction as long as it met the aggregate. However, in this particular case, the shortfall was about half of what it had promised. It was in the 40 to 55 percent range of the competitive traffic on the one year. The one year that we measured, we don't know what happened from that point forward. We're now in the second lawsuit because we don't know what happened after June of 2006. Clearly, they couldn't comply with both contracts in the same time, which brings me back to why it's a great pdation. Is there evidence in the record that, as they all, how do you say the nasal battle? The sale. The sale knew when it entered into the contract with CSX that it would therefore have to breach the Northrop's Southern
. Is there evidence in the record as to the obviousness or state of mind as to that fact at the time that it entered into the city? I believe there was that position testimony of a CSX representative, I can't. The sale then was to, the sale said he could not satisfy the 95 percent requirement. The sale recognized the tonight's sex and Northrop. Correct, because the 95 percent for West Lake Charles, it's a defiant point of origin. It's a defiant point of origin. It couldn't possibly do it. It couldn't possibly do it. You can't get 95 percent from the same point of origin, even in the aggregate. You just can't do it. And it would say the sale knew when he entered the CSX contract that he was going to breach the Northrop's contract. It's readily apparent. And there's, I guess what it was disturbing was that in the district court there was a position by the sale that they might still theoretically grant 95 percent to NS. Of course, that would be a breach of the CSX contract, but that's not of concern here. But that position taken by the sale is actually the illustration of the restatement on repudiation. That's a classic repudiation. If A agrees to sell and B, in April A agrees to sell and B in July. And then in May A agrees to sell and B. The act of the second contract is a repudiation of the first contract
. The district court didn't address the repudiation issue, didn't it? No. And that is very puzzling to me. You didn't really raise it in your complaint. He raised it in a letter just prior to the trial date. Correct. It was raised when the issues were simplified and the court directed the parties to file cross motions. It was in the cross motion. It was argued. It's discussed in the argument at A51. And they didn't raise the fact that it wasn't pled. And should there for nothing? No, I think the position all along has been, it came up late. Now, did you object to the law's profits determination of the district court? The district court found your entitled to law's profits. Have you appealed from that aspect to the district court's ruling? That's the calculation of law's profits. As to the fact that that's what they found was the measure and was appropriate for you to be entitled to. They gave you a law's profits and they even gave you, not a question, they gave you future profits. I'm not even sure this judgment is final. Have you all decided what you're entitled to for the last year or so? You're on, I have no idea what cars were moved in May of 2007 with respect to Bacill. I can't imagine that it's the whole point of why it's the very least of some material breach
. It was not a repudiation. Well, I guess there are two points to my question. The first is the district court did give you law's profits. The calculation, interestingly, the idea was, well, the law's profits that you propose versus the law's profits, they propose were close. So it's easily calculable. I don't know, my close makes it easy, so it's calculable. But then the order says, and guess what? You'll have future law's profits, but that's not detailed. It's not awarded. It's not been awarded. Do we have a final order? It was a snapshot based on projections in06, which underscores why the material breach of a repudiation. Well, the damages awarded, the discounted damages or the damages you were seeking actually were the common carrier damages. Correct. We wanted the terraffrey imposed from the point of the second contract. Could you? And the court allowed the contract to continue and use the contract as a measuring stick through the projections of06 at the discallion rate. Which was the essence of the contract for no reason. So the damages that you are seeking on appeal. Well, you want it to conclude that the breach was material. So that you would be entitled to the terraffrey
. What is the difference economically? There's a significant increase in the terraffrey over the contract rate, which we put to you. The best way to illustrate this is there is a significant difference. And I want to underscore that North Pole Southern felt it was so important to get this competitive traffic that it sacrificed that terraffrey for all the captive traffic that it was going to move to get the competitive traffic because there are operational efficiencies for railroads. It doesn't cost that much more to add 10 more cars on the back of the 20 car train. There's operational efficiencies at stake. So they really wanted the competitive traffic. It seems to me the argument you're making is that requirements contracts such as this are different. That 95 percent, I mean, getting 95 percent of someone's traffic in and of itself. That's what you really wanted. And that was the kind of the quid pro quo. And yet there doesn't seem to be an analysis in the district court's opinion or in the briefing as to why a requirements contract is going to be a different way. It isn't just I will buy these widgets at this price. And it seems to me there ought to be some case law and I don't see anything here as to requirements contract being different. And that would undercut to my mind the district court's conclusion that damages are easily calculable rather than looking at, well, the benefit of this bargain was 95 percent. And that's really, really important. The damages are not calculated well for a number of different reasons. But just the the. The records are different than other industries
. It's hard to analyze sometimes to a widget case because it's actually easier though in the context of remedy here because if the discount contract rate doesn't apply, there is a polished hairspray that everybody knows that would apply automatically. It would apply to contract rate wasn't in effect. It makes it easier actually to say it's a material breach if not a review. Tell us again. On the breach issue, the district court held that it wasn't material for a variety of reasons. Why do you say it was a material breach? Why was the district court wrong in its conclusion? If you look at all five of the factors mentioned in the statement, the district court, grass pulled one which is the adequacy of the compensation issue. And even there, that's flawed because of the compensation issue going into the cap the cap of projections real six. We don't know what's 07. This was done in summary judgment. This was done in summary judgment. Now, material breach is also a factual issue which makes it a little more complicated. So I think it's a very simple issue of law but material breaches is a fact issue. Although this is going to be a non-jury trial. Correct. Correct. The five circumstances is to be considered or not rules and the extent of the deprived expected benefit is key. Because the expected benefit to NS is to capture that competitive traffic and that's been obliterated by the CSX contract. And that is the key element of the five circumstances
. The adequacy of compensation is projection and speculation. The forefature is not an issue in this particular case as noted by the district court. The likelihood of curing the failure, you can't do 95% on two sides. And if you could, CSX will win. Now is the term of the contract. It runs 64 months through May of 07. Well, that was the other thing. The court said there's substantial performance but the breach occurred in 05. So the breach was 60% along the way but there still were two years to run. 36 months down, 28 months to go. Let me ask for a point of clarification. At appendix 16, we have the court's order for actually 15. And the order grants the motion and then says, if any loss profits are incurred by 05, do two vacials breach of its minimum values in between July 1-06 and the completion of the contract May 30107. Vassal shall be liable to Norfolk for those loss profits. Bins. What has happened in that regard? Has there been a proof and an understanding and a payment? No vote 7 received two checks from the cell during this period of time. I don't have the car movement records. They were less served as judge and jury for determining what those two checks were for
. They were from modest amounts. I mean, is there an ongoing dispute about that or not? Well, we would have to look at the car movement records to see if they're anywhere in your accurate because we have no idea how these... When somebody's serving as judge, jury, and writing the check, you just receive the check and you go, what was this based on what are the car movement records? Have you made any further filings before the district court with respect to this aspect of the court? Not in this time. We thought it would be more efficient to proceed with the appeal because the contract just ended. So this matter could continue to be before the district court argue? Correct. Which underscores why this fifth-order-driven criteria of material breach? You asked for a specific ruling on repudiation in the district court? That's a way that there's a brief hierarchy. This district court simply overlooked it. The district court's explanation that are all arguing, which appears at a 51 on repudiation, the district court said, I just don't want to terminate the contract. Do the district court say something along the lines with it wasn't a slap in the face that they're arguing it was? Yes, I do remember that one. I mean, that should be something to say they weren't really actually repudiateing in the way that's being... But the act of a second contract completely with the first is... Let it still open in the district court
. Or is anything open at all? Just the one sentence that your Honor mentioned is hanging at the end of that order. We're not exactly sure how we would go about getting proof evidence ruling on that. It's kind of a procedural link. Is it entirely a damage issue? If lost profits under the discounted contract were to continue to provide the standard for measuring damages, then yes, it would be a damage issue. Calculating how many movements they were, how many cars got diverted to CSX equivalent service by Hennis. Come back to an earlier question. Do we have a final order of the district court yet? I don't believe we do. With respect to that one component of the revenue. Well, you haven't urged that. No one's really raised the fact that they're going to please. No. In our argument with the district court, we took the position that we have to final second lawsuit. And at the very least, our new client will stop along these some of the issues. But as a practical matter, we heard before this court, because we believe that there was a classic repudiation about material breaches. We always, we always obligated to determine her own jurisdiction. And if there's not a final order, we decide that we don't have jurisdiction. In any event, you would like this matter to go back on material breach. And you would like to have a fit trial on this issue
. And we'll say there are genuine issues of material fact. If not, the only underpudiation based upon the obvious facts. I'll have you back on the panel. Thank you. Mr. Dmitry. Thank you, Mark. Please, the court, my name is... It was Dmitry Dmitry on behalf of... Let me deal with several things that the court has asked. First of all, the judge's order, the district court court, the judge's order did provide for payment to the... to the moral disorder. After the contract, after the court proceedings were... Because I made those payments, one payment in February this year, one payment in July of this year. Will they afford satisfaction checks? Yes, yes, Your Honor. What a court here is. This calculation is a very simple calculation. It basically requires taking a look at the University of Traffic, taking 95% of that, and having a map to exclude moons that are outside of this 100-mile rule, within the county of the Hong Kong contract. Did you both disagree on the amount of lost profits on what had already occurred? No, both calculations of lost profits were, as the court said, very, very close. And what we did is the judge actually took the higher of those... the sales calculation of the lost profits 270,000 was actually higher than... And this is calculation of the lost profits. So all the district court did is to take that calculation of lost profits, which is higher than what NSW has for, and apply it to future movements of.
. After the contract, after the court proceedings were... Because I made those payments, one payment in February this year, one payment in July of this year. Will they afford satisfaction checks? Yes, yes, Your Honor. What a court here is. This calculation is a very simple calculation. It basically requires taking a look at the University of Traffic, taking 95% of that, and having a map to exclude moons that are outside of this 100-mile rule, within the county of the Hong Kong contract. Did you both disagree on the amount of lost profits on what had already occurred? No, both calculations of lost profits were, as the court said, very, very close. And what we did is the judge actually took the higher of those... the sales calculation of the lost profits 270,000 was actually higher than... And this is calculation of the lost profits. So all the district court did is to take that calculation of lost profits, which is higher than what NSW has for, and apply it to future movements of... on this country. Well, that's lost just based on the discounted rate or the common carrier rate. Those lost profits were based on the contract rate, not on the common carrier rate. But the common carrier rate would have been much, much, much higher. And the damages for the result of the common carrier rate would have been more than the... the lost profits of the contract by many, many packbackers were talking probably many ins of $1.00. So after our repudiation, then we'd be dealing with the tariff rate. And I mean, if we were dealing with repudiation, I think that's true. But that's the point that you're on a raise. NS did not raise the repudiation argument, not actually before the trial at all. If you take a look at a record paid in, I believe, it's in 1819 or in 1820, that was a letter that was sent to the court at $4.53 on the last business day before trial. That letter withdraws certain contract claims and ask for a termination that never mentions common carrier rates, never mentions repudiation. It was only after then during a motion of assembly judgment on June 13th, in a two-page short argument, NS finding raised repudiation argument there
.. on this country. Well, that's lost just based on the discounted rate or the common carrier rate. Those lost profits were based on the contract rate, not on the common carrier rate. But the common carrier rate would have been much, much, much higher. And the damages for the result of the common carrier rate would have been more than the... the lost profits of the contract by many, many packbackers were talking probably many ins of $1.00. So after our repudiation, then we'd be dealing with the tariff rate. And I mean, if we were dealing with repudiation, I think that's true. But that's the point that you're on a raise. NS did not raise the repudiation argument, not actually before the trial at all. If you take a look at a record paid in, I believe, it's in 1819 or in 1820, that was a letter that was sent to the court at $4.53 on the last business day before trial. That letter withdraws certain contract claims and ask for a termination that never mentions common carrier rates, never mentions repudiation. It was only after then during a motion of assembly judgment on June 13th, in a two-page short argument, NS finding raised repudiation argument there. That occurred to me. I thought it was curious that there really was no pleading setting forth the repudiation. But I don't see anything in the record either before the district court or on appeal to us that says the district court should not have considered that argument when it was made and how it was made. If you were going to meet us somewhere where that was preserved before the district court and is an issue before us, I'd be happy to see it. I couldn't find it in the record or in the briefs to us that would have foreclosed them entirely from this argument. In the Zell's motion of the pressurgyed into the district court, it argued that all of these claims were just something made too late. And I am point of point of view, I'd rather to be right there. But have you said to us that the court should have, therefore, not heard these claims? I don't see that in every. The district court, personally, during the argument, considered the other appeal to the Asian claim and simply dismissed it. And that is, frankly, the entire extent of the repudiation claim before the district court. Two pages in the motion of pressurgyed, I should say, two days before the motion was heard after trial and any sugar oil statement at the motion of the district court. Let me go on to one of them. The question was raised by the court, whether it was the same origin and not the two contracts of the contract that you can see as X and Bazaar on a contract with Northbrook Southern. The flat answer to that is they are not the same origin. The CSX contract with Bazaar, let me just back up. When this came to start, the obligations of Northbrook Southern took into account and compass three origins, Wesley Charles, Bateport and two Canadian origins. The CSX contract with Bazaar was primarily the Bateport margin. The right before trial and the termination letter that I mentioned before, NS with the Druid's claim and so as to Bateport and Canadian origins, we even firmly the Wesley Charles claim
. That occurred to me. I thought it was curious that there really was no pleading setting forth the repudiation. But I don't see anything in the record either before the district court or on appeal to us that says the district court should not have considered that argument when it was made and how it was made. If you were going to meet us somewhere where that was preserved before the district court and is an issue before us, I'd be happy to see it. I couldn't find it in the record or in the briefs to us that would have foreclosed them entirely from this argument. In the Zell's motion of the pressurgyed into the district court, it argued that all of these claims were just something made too late. And I am point of point of view, I'd rather to be right there. But have you said to us that the court should have, therefore, not heard these claims? I don't see that in every. The district court, personally, during the argument, considered the other appeal to the Asian claim and simply dismissed it. And that is, frankly, the entire extent of the repudiation claim before the district court. Two pages in the motion of pressurgyed, I should say, two days before the motion was heard after trial and any sugar oil statement at the motion of the district court. Let me go on to one of them. The question was raised by the court, whether it was the same origin and not the two contracts of the contract that you can see as X and Bazaar on a contract with Northbrook Southern. The flat answer to that is they are not the same origin. The CSX contract with Bazaar, let me just back up. When this came to start, the obligations of Northbrook Southern took into account and compass three origins, Wesley Charles, Bateport and two Canadian origins. The CSX contract with Bazaar was primarily the Bateport margin. The right before trial and the termination letter that I mentioned before, NS with the Druid's claim and so as to Bateport and Canadian origins, we even firmly the Wesley Charles claim. Now, the CSX contract was mostly for Bateport. There was a small slice with dealt with truck transfer traffic out of the Wesley-Lay Charles. The NS contract was solely a Wesley Charles contract so that you can have two universes here slightly overlapping. That is the reason why Bazaar could turn to 95% because it dealt mostly with the Wesley Charles traffic to CSX, but could tend to 80% or more as it turned out. NS because the universes were separate but... You are 80% would still be a shortfall. Yes, the 80% would still be a shortfall. But you also conceded that when you entered the CSX contract, you were aware that you will not be able to comply with the 95%. You did not concede that. We did not concede that. It could have been possible or could be possible depending upon the amount of traffic, depending upon the two universes you have, whether one trinket or one falls or the mix of traffic coming from both. I am sorry, I misunderstood the deposition testimony, but then it is your view that you could comply with the 95% requirement. Both contracts simultaneously. It would be possible to do that if the business conditions work, if the amount of traffic coming out of both origins grow as a restraints and how much is coming out of each. The statements made in the reply break that you have not disputed that your contract directly conflicts with the contract CSX, directly conflicts with the contract NSR concerning the traffic and sites to the deposition of Slovak and also Kathy Rosenkrantz and email correspondents on page 17 of the reply. Maybe I need a appendix references from you that say it really did not conflict
. Now, the CSX contract was mostly for Bateport. There was a small slice with dealt with truck transfer traffic out of the Wesley-Lay Charles. The NS contract was solely a Wesley Charles contract so that you can have two universes here slightly overlapping. That is the reason why Bazaar could turn to 95% because it dealt mostly with the Wesley Charles traffic to CSX, but could tend to 80% or more as it turned out. NS because the universes were separate but... You are 80% would still be a shortfall. Yes, the 80% would still be a shortfall. But you also conceded that when you entered the CSX contract, you were aware that you will not be able to comply with the 95%. You did not concede that. We did not concede that. It could have been possible or could be possible depending upon the amount of traffic, depending upon the two universes you have, whether one trinket or one falls or the mix of traffic coming from both. I am sorry, I misunderstood the deposition testimony, but then it is your view that you could comply with the 95% requirement. Both contracts simultaneously. It would be possible to do that if the business conditions work, if the amount of traffic coming out of both origins grow as a restraints and how much is coming out of each. The statements made in the reply break that you have not disputed that your contract directly conflicts with the contract CSX, directly conflicts with the contract NSR concerning the traffic and sites to the deposition of Slovak and also Kathy Rosenkrantz and email correspondents on page 17 of the reply. Maybe I need a appendix references from you that say it really did not conflict. I think what you are arguing is there is a remote possibility that you could have performed both, but it seems to me the testimony of record seems that it is pretty sure there was a conflict. The Slovak testimony itself does not concede that there is an impossibility of complying with both. In fact, the checks that I mentioned that Brazil sent subsequent to the district court's order, that in subsequent time periods of the sale was able to ship a little bit more than the 80% that it shipped from to down to 90%. The agreement was 95%. No questions asked. 95% of all requirements would go to Northrop Subway. We do not ship 95% of all requirements. But what they bargained for in terms of that reduced rate, which you yourself say, is much, much, much, much less than the published charges, they bargained for 95%. So 80% isn't what they bargained for, is it? But that is true. But the question is, does ship 80% versus 95% or 87% versus 95% or 90% versus 95% or the contract just to find a termination of the contract and the record found for the reasons going through the state? But if you sign a contract at the time knowing that there was, that it was highly likely, if not for certain, that 95% that you had already agreed to was not achievable. How was that signature of the contract with CSX, not a knowing reputed issue? Because I would not concede that it was for certain or not, you can see that it was highly likely I will concede. Well, I need records, citations, that support your position as to what was happening when you entered into the CSX contract. The testimony of Mr. Sylvag, I believe that page 341 of the record, 340, 342 of the record will remind that. So what was the reason why, what was the reason that you gave as to why you only hit 80% in 2000? The 80% of the traffic out of West West Lake, make sure that some of it can be assisted of a rail direct traffic, and that the one that looks at it had the ship. Some of it can assist a rail competitive traffic that one of the southern might have been able to ship or might not depending. And some of it consisted of a truck transfer traffic, and it was a truck transfer traffic piece of that that was difficult to provide to more folks southern because of the CSX contract. And as Mr
. I think what you are arguing is there is a remote possibility that you could have performed both, but it seems to me the testimony of record seems that it is pretty sure there was a conflict. The Slovak testimony itself does not concede that there is an impossibility of complying with both. In fact, the checks that I mentioned that Brazil sent subsequent to the district court's order, that in subsequent time periods of the sale was able to ship a little bit more than the 80% that it shipped from to down to 90%. The agreement was 95%. No questions asked. 95% of all requirements would go to Northrop Subway. We do not ship 95% of all requirements. But what they bargained for in terms of that reduced rate, which you yourself say, is much, much, much, much less than the published charges, they bargained for 95%. So 80% isn't what they bargained for, is it? But that is true. But the question is, does ship 80% versus 95% or 87% versus 95% or 90% versus 95% or the contract just to find a termination of the contract and the record found for the reasons going through the state? But if you sign a contract at the time knowing that there was, that it was highly likely, if not for certain, that 95% that you had already agreed to was not achievable. How was that signature of the contract with CSX, not a knowing reputed issue? Because I would not concede that it was for certain or not, you can see that it was highly likely I will concede. Well, I need records, citations, that support your position as to what was happening when you entered into the CSX contract. The testimony of Mr. Sylvag, I believe that page 341 of the record, 340, 342 of the record will remind that. So what was the reason why, what was the reason that you gave as to why you only hit 80% in 2000? The 80% of the traffic out of West West Lake, make sure that some of it can be assisted of a rail direct traffic, and that the one that looks at it had the ship. Some of it can assist a rail competitive traffic that one of the southern might have been able to ship or might not depending. And some of it consisted of a truck transfer traffic, and it was a truck transfer traffic piece of that that was difficult to provide to more folks southern because of the CSX contract. And as Mr. Sylvag, I test the vinyl and deposition, you can only run single truck fleet. And so there was a business reason there. But with that, because there was so much other traffic, rail direct traffic and rail competitive traffic, that it still would have been possible to ship the 95% if the business condition were right. If the amount of total traffic out of both, the room, for example, where the amount traffic was going to each, it was coming from each origin, was, I guess it was not going into the CSX contract, with the idea that, so many, that's a valid argument. Why should the district court have decided this matter on some reject? Why should they have made findings in fact, conclusions along this? There were, there were unrest-produced facts, and in fact, if you take a look at the district court, there was an order, every single fact cited by the district court in support of its order, was either of a fact that it was agreed to by the boardies or the district court cremated in Northwick, southern fact, so that the district court properly took, as the summary judgment, we acquired the facts most favorable to the moving party or undisputed facts. Northwick disputes virtually every one of the five restatement factors that the district court analyzed, and a particular importance perhaps is whether you proceeded and you comported yourself with good faith and fair dealing. If you knew that entry of contract with the CSX would end up, meaning that you can't comply with your Northwick contract, how would that be composing with the standards of good faith and fair deal? We did not enter the CSX contract with the NON, it was necessary that we had to fail to comply with the Northwick Southern contract. It was possible you would not have made one to comply with the Northwick Southern contract, but it was not a foregone conclusion, and as Mr. Soderak testified at his debt position, it cruelled in that both contracts we would have been compliant with. You said 341, I believe, and I don't find that as his debt position. Let me transcript. I've got here about 700. If I might supply the court, I believe the court, that's what I thought the page was, but I might be wrong. 341 is not a deposition. All right. The assessment of possibility, that's based on history, your assessment of volume, your assessment of the party's account tracks and what the requirements are. What exactly is the possibility based on? Perhaps increased volume? The base number of cars coming out of the West Lake Charles facility is based on the number of cars coming out of the base number of cars coming out of the base number of cars that were coming out of the truck transfer traffic. Are you looking back over the history of the contracts? Especially the time period from February 2005 to June 2006, which was the period that both parties were looking at as they were examining the possibility of reach
. Sylvag, I test the vinyl and deposition, you can only run single truck fleet. And so there was a business reason there. But with that, because there was so much other traffic, rail direct traffic and rail competitive traffic, that it still would have been possible to ship the 95% if the business condition were right. If the amount of total traffic out of both, the room, for example, where the amount traffic was going to each, it was coming from each origin, was, I guess it was not going into the CSX contract, with the idea that, so many, that's a valid argument. Why should the district court have decided this matter on some reject? Why should they have made findings in fact, conclusions along this? There were, there were unrest-produced facts, and in fact, if you take a look at the district court, there was an order, every single fact cited by the district court in support of its order, was either of a fact that it was agreed to by the boardies or the district court cremated in Northwick, southern fact, so that the district court properly took, as the summary judgment, we acquired the facts most favorable to the moving party or undisputed facts. Northwick disputes virtually every one of the five restatement factors that the district court analyzed, and a particular importance perhaps is whether you proceeded and you comported yourself with good faith and fair dealing. If you knew that entry of contract with the CSX would end up, meaning that you can't comply with your Northwick contract, how would that be composing with the standards of good faith and fair deal? We did not enter the CSX contract with the NON, it was necessary that we had to fail to comply with the Northwick Southern contract. It was possible you would not have made one to comply with the Northwick Southern contract, but it was not a foregone conclusion, and as Mr. Soderak testified at his debt position, it cruelled in that both contracts we would have been compliant with. You said 341, I believe, and I don't find that as his debt position. Let me transcript. I've got here about 700. If I might supply the court, I believe the court, that's what I thought the page was, but I might be wrong. 341 is not a deposition. All right. The assessment of possibility, that's based on history, your assessment of volume, your assessment of the party's account tracks and what the requirements are. What exactly is the possibility based on? Perhaps increased volume? The base number of cars coming out of the West Lake Charles facility is based on the number of cars coming out of the base number of cars coming out of the base number of cars that were coming out of the truck transfer traffic. Are you looking back over the history of the contracts? Especially the time period from February 2005 to June 2006, which was the period that both parties were looking at as they were examining the possibility of reach. Based on that period, you thought it was still possible for you to comply with both contracts. At that time, that's exactly what the contract was. The contract with CSX was entered at what year? February 2005, that began in kind of a factor. And before at that time, that you could still possibly comply with the contract? That's correct, and that's what the district court found. All right. Let me raise just, I just wanted to talk about my time time as I put the court in any other questions of the bill. I would point out to the court here just in terms of the fairness and normative good for the inferiority only on the fourth trick point that Bizel, if the court credits, and this is an argument that implements and has to apply terra rates to this, that amount of money is far excess of the damages that Bizel, the NS would be entitled to under the contract. And what's more, I want to emphasize to the court, that if there was no contract back, for example, 2005, or if Bizel were reputed, for example, the contract back in 2005, it would include it, and would, and would, and I shifted a tremendous, much more traffic from NS then, and actually did it. What NS wants to do now is, NS wants to apply terra rates to movements that Bizel tended to NS under the contract. NS would not have received, but for the contract. So NS is attempting to do is to get terra rates that would not have gone but for the contract, but then also, but in a sense, tibia advantage of Bizel's compliance with the contract, will be his last two, two, two and a half years. We understand that position. Fine. Thank you very much Mr. Clerk. And I'm going to address the one or two points that were raised. There was an affidavit submitted by Norfolk Southern that was never addressed by the District Court, and the affidavit was the Norfolk Southern would never have entered into this discounted contract without the assurances of getting the competitive traffic. I
. Based on that period, you thought it was still possible for you to comply with both contracts. At that time, that's exactly what the contract was. The contract with CSX was entered at what year? February 2005, that began in kind of a factor. And before at that time, that you could still possibly comply with the contract? That's correct, and that's what the district court found. All right. Let me raise just, I just wanted to talk about my time time as I put the court in any other questions of the bill. I would point out to the court here just in terms of the fairness and normative good for the inferiority only on the fourth trick point that Bizel, if the court credits, and this is an argument that implements and has to apply terra rates to this, that amount of money is far excess of the damages that Bizel, the NS would be entitled to under the contract. And what's more, I want to emphasize to the court, that if there was no contract back, for example, 2005, or if Bizel were reputed, for example, the contract back in 2005, it would include it, and would, and would, and I shifted a tremendous, much more traffic from NS then, and actually did it. What NS wants to do now is, NS wants to apply terra rates to movements that Bizel tended to NS under the contract. NS would not have received, but for the contract. So NS is attempting to do is to get terra rates that would not have gone but for the contract, but then also, but in a sense, tibia advantage of Bizel's compliance with the contract, will be his last two, two, two and a half years. We understand that position. Fine. Thank you very much Mr. Clerk. And I'm going to address the one or two points that were raised. There was an affidavit submitted by Norfolk Southern that was never addressed by the District Court, and the affidavit was the Norfolk Southern would never have entered into this discounted contract without the assurances of getting the competitive traffic. I.e. 95%. Correct. With respect to the state. Where's that in the record here? The affidavit, I'm sorry, you're on the record. It isn't in the record. I just read it. Well maybe both sides can submit correspondents giving us the points in the record that we are not. If you got to the percent of the traffic, can you address the material breach issue based on the volume of traffic that you did get? Are you in relation to what you're supposed to get? Yes, because in essence, we were the only railroad in town for most of the 80% of the traffic. We were the only railroad that could service that traffic. So the competitive traffic, which was the essence of the entire deal, was obliterated. But council does a good job at pointing to the percent. But it's a form of a substance. We were going to move that traffic at tariff rate anyway. And we lost the ability to charge that tariff rate because of their promise to give us the competitive traffic. So that 80% of the investment journey, but we wouldn't move that anyway out of much higher tariff rate. With respect to the standards of good faith and fair dealing, which we were just recently discussed, it's interesting that the district court made a reference. And this is where you quote, that the sale got caught creating a breach situation
.e. 95%. Correct. With respect to the state. Where's that in the record here? The affidavit, I'm sorry, you're on the record. It isn't in the record. I just read it. Well maybe both sides can submit correspondents giving us the points in the record that we are not. If you got to the percent of the traffic, can you address the material breach issue based on the volume of traffic that you did get? Are you in relation to what you're supposed to get? Yes, because in essence, we were the only railroad in town for most of the 80% of the traffic. We were the only railroad that could service that traffic. So the competitive traffic, which was the essence of the entire deal, was obliterated. But council does a good job at pointing to the percent. But it's a form of a substance. We were going to move that traffic at tariff rate anyway. And we lost the ability to charge that tariff rate because of their promise to give us the competitive traffic. So that 80% of the investment journey, but we wouldn't move that anyway out of much higher tariff rate. With respect to the standards of good faith and fair dealing, which we were just recently discussed, it's interesting that the district court made a reference. And this is where you quote, that the sale got caught creating a breach situation. And the question posed by the district court was, doesn't that impact good faith and fair deal? That's a quote that the district court raised in Edo or Arcoma. So despite all these other circumstances that warrant a finding of material breach, the district court got off tracks on how it seized on that one readily calculable damage component and never really considered these other points. Although good faith and fair dealing gets you to lost profits, does it not? I mean, that's a contractual remedy. Whereas the only way you get to the public rates is through repudiation. Well, if there was a material breach, they contact what end does the material breach after the third or third expense. And then you're back on the tariff rates. They were back on the tariff rates. Same thing with repudiation. The revenue comes out of the exchange. We would go back on tariff rates. You're on all of these, that question has to jurisdiction. And in looking at that order, it does appear to be a final order on liability. There's a calculation that's left on by me. It says, if there's additional shipments, then the lost profits shall be done to the same formula. Because I'm not sure as much left to rule on this. But we hope that's the case. The case? Mr. Dimaikov, thank you very much
. The case was very well argued. Thank you very much. Thank you very much. You guys okay? Go again. Thank you. Thanks, sir. The next matter