ready ready and morning your honor we intend to reserve any proximately five minutes possibly more for rebuttal or let me tell you first off that the district court has crafted a new rule of law that must be reversed and let me tell you why we have filed timely the in ram claims against the z vessel we then proceeded to question about that we were within three years in any regard once we filed those claims that they were clearly pending then comes in july of ninety six and in a van a curse another creditor arrests the vessel on july the fifth ninety six now that should have given us the security of knowing that the vessel was secured by the court and instead what that has done on the operation of this case it has deprived us of that pending in ram claim because when that other creditor arrested the vessel while our claims were pending that started a new statute of limitations in the arrest of action in deprived us of our pending in room claims now that's wholly unfair and wholly inequitable let me talk specifically about what the court determined in july ninety six in the determination of the july ninety six events the court that is the district court in guam number twenty nine and conclusion of law of nine holds that we that is miles from project could have a rest the vessel on july the eleventh of ninety six that tells us two things one it tells us the interim claims are certainly pending at that time and secondly it says that they must be stopped from asserting the statute of limitations in july of ninety six now somehow ill ogically five months later in december of ninety six the court has now found in its decision that the interim planes are no longer justified and that equitable stop will no longer applies i want the court to understand what happens from july of ninety six to december of ninety six on july the twenty eighth judge who now are sitting by motions to vacate the judgments filed in those were ruled by judge konar in september of ninety six we are now approaching october ninety six in october ninety six we filed a motion to consolidate that is take the pending in ra suggested to us that we follow a motion to intervene and so we did file a motion intervene into so on december the second of ninety six when we filed that motion intervene that is a claims the court held that they were equitably a stopped now the court reversed that decision in april of zero four and that's why of course we are here today but i think the court must reach some very obvious conclusions of law in this case one that certainly the interim claims were pending in july of ninety six and i will address those reasons if you doubt for any reason but even the defendants in their brief stay in bold black letters the interim claims were pending in july of ninety six why were we not allowed to assert o because another creditor arrested the vessel and that started the statute of limitations running again in that arrest for that action and we were not allowed to join that action the intervention only runs in ninety four in ninety five there is no statute of limitations on arrest nor should there be because these are not and it's going to have very very few opportunities to rest now the point is that we really are depriving not only us but this decision deprives anyone else who looks at this decision of the right to maintain in ram claims because we filed those claims and there is and we met the statute of limitations but in this case the statute of limitations being used as a bar to our proceeding now i think it's key to note also that three for the first panel which reverse the question of towing i'm sorry i didn't hear that in here i didn't hear a question i'm sorry if you briefed to the first panel which made the reversal this issue of to no i mean we're told i don't i don't believe we did the well i know that the issue of equitable sight was under the impression you did well but you tell me what it what happened that that panel was the panel you're to you're talking i've had this my fourth argument in the on this case that over the last twelve years but you're talking about the last time we were in front of the ninth circuit is that correct correct at that time the decision the ninth circuit was simply to send it back to the trial court to consider that brief this issue to that panel i don't believe we did i don't believe that that issue was addressed at that time and it was my understanding that we were being sent back with the assumption that the in ram claims were pending in july of ninety six and that's why we were getting sent didn't discuss that at all  the procedure of what is occurred has really deprived us of our in ram remedy and we believe that the standard of review in this case is one of and we say that because we believe the court has reached conclusions of law as to the statute of limitations and as to the predominant legal issues that exist in place of just in place of the facts of the terminations in hearing that occur we are being put out after twelve years of litigation not because of really the equitable stoppel ruling but because of the statute of limitations of the statue of limitations in the arrest of action is really what precludes us from being able to receive with our justified in ram claims or are not pleading or an equitable tolling claim your pleading that there was simply was towing is that right well the the this court talks about the differences between equable to equitable stoppel in fraudulent concealment and even admits that there is a lot of overlapping and there's a lot of somewhat ambiguity that exists between those three terms in particular the equable what tolling deals with when the plaintiff doesn't know that a statute that they have a cause of action we knew we had a cause of action in fact we filed the answers or you're not pleading facts and it did so on bob nine to two when it found that despite the underlying finding that there was no equitable stoppel this court moved and found that there was equitable stoppel and talked about the ambiguity is that exist between those three terms but the court did go ahead and find that there was equitable stoppel and we believe in that case that is the gonzales versus ins case and we arrest within that three year period and if you fail to arrest within that three year period then as the statute of limitations becomes a bar anyone else who arrests that nes any other creditor no matter how small can arrest that vessel and defeat your pending in ram claims because that's exactly what occurred in this case on july the fifth of ninety six ar e we have been deprived of our interim remedy and we believe that we are entitled to have the district court's opinion reversed and that we should be entitled to proceed on our in r remedies in the arrested action and the to do not do so presents a very unjust result and in a just and in a result that would not reflect well in the in this you re going forward in the original case that's the situation motion to consolidate if the motion to consolidate the original action is put into the arrest of the action by joining it in and yes we're on the original action if the statute of limitations in the  rest of the action is simply barred by equitable stoppel then we're proceeding on new claims in the second action that explains i reserve the rest of my time  that morning your honour's michael park after the closing morning good morning in september of two thousand a panel of this court including judge hop and sent this matter back to the district court for a finding of fact eviden honor according to plaintiff's motion to recall the mandate they say they did great that we have questions as briefs were pretty scant they clearly briefed it in their motion to recall the mandate that's at the supplemental excerpt of record eighty three ninety one and i'm sort of in and i think we win either way it should have been if they intended to rely upon it and if it in the court just simply overlooked do you think it had to be raised in the original appeal or was it sufficient to three fifth there to bring it to the court's attention absolutely i think it had to be raised in the original appeal your honor if mr ritter is right now issue is that right i would be presumptuous of me to say what the panel considered the panel's decision doesn't discuss it it is it is alluded to in the brief and it certainly should have been raised this entire process of sending this back to judge umping go on back here for a second visit fourth as it could have been done away with if this argument was right on its merits and i will get what's wrong on its merits but it should have been raised in europe are clearly here under an abuse of discretion standard after the trial in the lower court several key findings made by jumping bail that absolute dictate the affirm and serve his decision finding number one there was only one misrepresentation that anyone is here talking about seriously that was made in one thousand nine hundred three essentially hallway conversation you think that the previous panel  in that case the statute of limitation tolls and when the vessel appears and you arrest it the statute of limitations has been met now if  precise reason for that procedure so you have the security for the judgment or substitute security in the form of a bond or a letter of undertaking the question about security but the real question is understand this court issued a decision in man versus american airlines on the relationship between filing complain tolling the statute of limitations in service of process and the issue there was one hundred twenty day provision for the service process and the man court said when the case is filed in this case the ninety four case the statute of limitations has told and it is told as long as that case is pending and if service occurs even after one hundred twenty day provision of rule four and after the statute of limitations that service is good in the statute of limitations is no bar in this case that means had they are arrested the vessel had they perfected service in the original claims the statute of limitation would have been the bar but once the judgment is entered in that case but pieces over that case is done the statute of limitations is no longer told by that prior action and there's a tolling problem doesn't deal with it at all well there wouldn't have been any way to deal with the tolling problem because the in ram claim which could have been perfected in july of one nine hundred ninety six was simply let go it was never pursued what should have happened in july of one nine hundred ninety six when when not only was there no misrepresentation plaintiff's counsel were told very seven this litigation would have been over in one nine hundred ninety eight once they went to judgment claims they brought in a case where concluded that to answering the question about when the statute of limitations or stop work unseating a point on that that i think is beneficial to the plaintiffs we think the structure of limitations continued to toll once the claim had been file have been given the benefit of having filed in ninety four your honor and when their case is concluded the benefit of having filed but not perfected that they're given for the ninety four filing  so this concept that someone else can come in and arrest a vessel and divest them of the ability to do it that someone else came in and arrested the vessel after the statute of limitations had run for them except in the case that they there the equitable is stoppel argument what's interesting about our discussions so far is it relates to this tolling issue which we believe should have been raised last time around was raised last time around and cannot be raised this time around the equitable a stop police are very clear the judge in pink heard the evidence and got it all just right in his findings of to the extent there was ever a misrepresentation by mr mcmullan that misrepresentation was cured by two subsequent things number one is the initial disclosures identified when i ask you about another case for the horse united states against two thousand one hundred sixty four watches moral and do you are you familiar with i believe in fact that is the case i was referring to in the brief you're on the ram actions and i would agree with your honor that the there is no doubt that by nine hundred ninety six in the other case service of process would have been untimely rule for you have hundred twenty days a case been pending for two years but the court can make exceptions to the hundred twenty day requirement and had the vessel been arrested had the marshal sticker been put on it in that absolutely and in the other case there is no doubt in my mind and no doubt in anyone's mind who would read the transcript of the proceedings below in that case if they had said in one nine six judge who now we didn't arrest the vessel but in light of what we've now been told we think it is imperative that we do arrest the vessel i have no doubt that that motion would have been granted and they would have been timely in that said we need to arrest this vessel your honor under that authority they would have been given permission to do that so they weren't prevented from filing and it didn't that's my point they were prevented from  another case filed by someone else that they tried to get into if this argument had taken place after an attempt to arrest in one thousand nine hundred six we'd be in a very different posture equitable stoppel in this second follow on piece of litigation one thing i do know the judge read a number of years ago sitting in the district court you considered an equitable stop argument in the whole regional planning agency case the sec taken is eight twenty nine twelve zero three and you discussed a couple of cases in your decision in case number repeated written and oral misrepresentations and your honor said well in those kinds of circumstances we think it will stop and may have some merit and in that particular case which was on a summary judgment motion  earlier decision at best one oral misrepresentation at best with no reasonable reliance after that issued a decision which was very hostile to the close the close you've been accused of doing all kinds of the band things in this quarter a panel of this court reversed that decision in two thousand and went back to judge and pink and frankly much to his credit when he actually heard the evidence he did of one eighty he came the absolutely said there was no misrepresentation that anyone should have reasonably relied upon to forgo arresting this vessel that decision is entitled to great deference and it should be affirmed and i'm i'm struggling if there are still questions about this true the judgments were in third in nineteen ninety six in august following the trial by judge kuhn our and i can tell you they are in the excerpt of record and with about ten seconds of that's why we moved to consolidated a letter date and that's why we eventually intervened and when counsel says that was that in july of ninety six for some reason around july the eleventh five six days after the  vessels already been arrested were supposed to go arrest the vessel now there's a guam local rule twelve eighteen it's in your materials which says you cannot arrest the vessel once it's already been arrested it says you must intervene in you cannot start an original complaint you must intervene in the action so we would have had to intervene in the interim action and we would have had to have asked the court as we ultimately did to be admitted into the arrested action we have a pending in room claim we should have been secured at that time that the wrists that is the vessel is in custody of the court and we'd like all other creditors are going to be able to lay claim to that vessel and have our priorities listed by the court that hasn't occurred in this case all the other twenty five creditors have been paid out of the money when still we have the highest priority in for twelve years we haven't been paid because we were not allowed to enter that arrested action now we have gotten four judgments in this case those judgments have been affirmed of the ninth circuit we have told diligently to pursue this vessel in both in personify and in ram and we believe that our this court's justify finding equitable stopped or another theory that this court feels is appropriate which evolves around equitable stoppel possibly fraudulent concealment possibly equitable tolling but in any regard we are entitled to have our claims enforced against the money that's being held in trust in guam as a priority claim  as representing individuals that have legitimate claims that for their injuries severe injuries that occurred over twelve years ago and just to  address slightly council's point that we needed to just put another set of handcuffs on the vessel i think i've addressed that but that couldn't be done we had to undergo one law intervene under the procedure i believe we needed to consolidate we took both actions and ultimately have been denied both opportunities to enter the rest of action i'm happy to answer any further questions the court has  i don't believe that there's anything further i can say other than i believe this court makes a grave error and a bad rule emanates from the decision of the district court in of the ninth circuit if it says that you must both file in ram and you must arrest within three years to preserve your rights because in this case we certainly are filed you didn't arrest someone else arrested in front of us but as long as this rule remains whenever anyone arrested ahead of a pending in ram claim that pending interim claim will be eliminated by a new statute of limitations that's completely unfair and completely and that we believe after twelve years of litigation we're entitled to have the district court's opinion reversed and sent back for for the proceedings thank you thank  counsel for their argument very interesting cases and it will be submitted for decision