stage courts are required to credit the denials of the nine moving party in nd contracts must be read as a whole they can't be interpreted as a matter of law where the whole contract is not before the court the district cour decision violated both of these principles at least fourteen documents forming a part of the collective bargaining agreement between the parties are not in the record at liberty disputed the authenticity of two of the three documents that were attached to the complain so can we just go one by one happy to let let's talk about the tanker vessels agreement and put aside for a moment put aside the question of authenticity as i understand it you know just that that agreement remains in effect currency not quite correct and the basis for that is i mean i understand you just speak the other one the dry cargo so what is admitted the th two thousand and twelve m o u the authenticity of that agreement is admitted and we admit that there is one sentence that they rely on heavily that exists in what  currently the collective bargaining agreement now as to your question about the tanker agreement so it's been modified repeatedly and that is undisputed isn't disputed that there's been extensive modifications here so but what you don't know is what that complete agreement is and this is outline in pages seven tonight or opening brief if you want to see a few more details on that but you can't even conclude that there's a broad arbitration clause in this case because union have the whole arbitration clause employ things like that but nothing to do with the arbitration provision that would be one here but if you are saying that there are agreements out there that have to do directly with the s or continuing coverage or reach viability of the arbitration provision that's another thing which is that so just other stuff or b you're missing parts of the arbitration  i think it's both and if you look at the district court's opinion it will see that the opinion relies on the correspondence that went back and forth between the parties and the universe takes its position in the meeting of various agreements outside the record we take our position but it's very clear from the correspondence that she say's it page three hundred and thirty four of the opinion and in other places that she was aware that there was this disagreement about scope and that there was that there were agreements that were before her that she was relying on  pieces as you just said that tell you what the content of the arbitration agreement is that's different than saying generically we think we're not subject to it that's a legal argument where was your factual artemy don't have the whole caught arbitration agreement in front of you but if you look at the correspondence on which she relied i swear your argument is to the district court we did not use the words missing pages if you argue to the district court that she did not have in front of her the full arbitration agreement  to other missing pieces in our contracts let me yes and let me we should back up to the rule sixteen point three phase of the case because we said there were material factual disputes about whether there is an agreement and  the contract what constitutes the contract whether it's pieces that's the sort of factual issue on which you would get an inference in your favor if you made that argument i just was having trouble being clear on what your arguments w whether she was unfair or notice that he thought she needed to have more but she didn't have a whole arbitration agreement from him for her as opposed to a distinct argument for the arbitrator to decide whether other things pertaining to the scope of the arbitration and i pointed you to passages that isn't in our brief the rule sixteen so there's a material facts of this if you don't these issues and i don't think there's any question that she was aware because she is relying on the correspondence trying to distinguish those two things i'm sorry i'm not being clear there's one argument that says yes here's the arbitration agreement that we got it we read it that's an arbitration agreement we're not in that because there's these other communications that have happened that said this this ship is not going to be in that it's limited to maritime security program ships or something like that that's one i think that's an argument legal argument about the scope of that arbitration agreement there's another argument that would say you can't just l and is undisputed that that language in isolation is part of what exists today but you can't even make the determination that that's a broad arbitration clause without the balance of what was originally section two let alone the rest of the dangerous do we refer that there's nothing in the stuff that's missing that would we say this ship is not of this class of ships is not included if you look at page thirteen or fourteen you'll see there are some things where liberty itself is given the final and binding authority or a doctor appointed by the review or a committee appointed by the parties or a committee appointed by liberty and that's to say nothing of other cases involving other types of provisions that then amend the this undisputedly before the court so i think i think the best i can sum it up is to say it's not even undisputed what the whole arbitration clause in this case says let alone what the whole collective bargaining agreement says can i just take you back to the tanker vessels agreement of course and so i was thinking about this case on the assumption that you conceded that it was still in effect and you said no and that sort of me a little and i've been digging through the papers and what i find is in your opposition you cite paragraph eight but in the brief you filed you say the tanker vessels agreement covers present tense some but not all u s vessels managed by the look that sounds to me like you're saying the agreement to take just the tanker vessels agreement remains in effect but doesn't cover this ship and i think you have to look at everything we see that would go to your honor because we're not disputing that part of the it's not that we're saying nothing remains from the taint or agreement and i think i think that's been our consistent position throughout but we are saying there's been some really material changes and the only thing that we've expressed the admitted still exists is that part but if it if it of their remains in effect is it too much to infer that the arbitration cla resolved in accordance with this agreement or the sections agreement you don't know what this agreement is and you don't know what this section is and there's no reference to arbitration so now look at you i mean it's it there's a there's a unitary document that's called the tanker vessels agreement and you acknowledge that you signed it and you acknowledge that it remains in effect so as to that one piece of the case your position just seems to me weaker than the rest of the case where you say the other master agreement is not in fact and we have no idea what's in all of the animal use on the side ladders and such i think the only fair reading of this is if you so if you say if you say the tanker agreement is was signed is in effect and the owner and the open all there's been no allegation that the ship here is a tanker so even if i understand ok if it but i don't think that's really them that goes to americans that's just an argument that you'll lose you'll win before the arbitrate ok but but the but the more important thing is you keep referring to the tanker agreement being r back and i don't think we've ever said point blank it's in effect what parts of it are in effect because that's the agreement that's been repeatedly modified that's the agreement that that was extended to the emissivity vessels that's the agreement that then had additional  amendments that name specific ships but we've never said the whole thing is valid and if you look at our denials we say quite the opposite that the whole thing in the century doesn't exist now we've explained a bit more what we mean by that in the brief speak cause we're not saying this is a forgery case that this document was just fabricated from full cloth but we are saying that's not the agreement there's only a lot this happened thirty years you know fourteen documents outside the record and more in addition to correspondence containing clear statements about the import of these agreements so if you have you would have all these in your possession you're the other party to these agreements if there's some piece of paper that says that doesn't apply anymore to this why when you have brought that for you there's a practical answer to that question around there's a legal answer to  and have the birth right well there's a little more to it than ever let me start with the practical because i think i mean part of what you're asking that the practical reasons you dealing with thirty years of a collective are in relation to everybody agrees about that terms of agreement as outlined in page thirty to thirty  there are some businesses here there are some cases where one side is saying you know we think these are the pages and the other side is not so there are some genuine issues of what is the actual agreement look like we said we need is a minimal expedited  you started what matters is was the resolution dispute resolution provision changing you would know if you're taking the position you're not covered you must know somewhere you must have in your pos process not other aspects of these massive agreement well i do think there are several pieces that go to the scope but yes we have we have the fourteen documents if you never bring  because there's a major difference between rule twelve and rule fifty six dollars it rule twelve is about framing the factual dispute between the parties we've made clear denials and we have good grounds for making those denials if you look at rule fifty six  base without the whole contract and we did not have an obligation to put in it we could have done that it would have been permitted it might have converted if somebody judgment but we told the court of the beginning we think this should be dealt with on an expedited basis that needs  an exception that would cover here are you saying that you said there are possibilities and yet you must have these documents what i'm trying to ask is are there and can you tell me are there in fact do you in fact have amongst these missing documents i yours that there wouldn't be a need for amendments to these agreements that add vehicles by name if they were covered i'm trying to tell you what what you've got and try not to make representations as on the record but also point to the correspondence the authenticity of which is undisputed and then say this is the direction it points in the reason i reply as with the way it is the say look if you just look at the contractual record you have there are all kinds of exceptions and and here's some other cases that show you can't make this inference but i want to come back to rule fifty six see a party asserting that a fact cannot be or is genuinely disputed must support the assertion by materials in the record including depositions documents etc you will search rule twelve in vain for that sort of provision and there's a very good reason because rule twelve is about identifying the factual dispute between the parties not about creating a record and there were practical reasons here why there were a lot of documents we want we thought perhaps things could be worked out with the union in terms of identifying do we agree about which versions of these documents and we can debate what amends what but we were not respect to the tanker agreement though there may be that the union may have a different opinion on the scope of the grievance but let's assume for purposes of the argument that the taker agreement is the issue that the corps concerned about when you're on your ass to go whether or not still in effect there's a couple  places you can see that clearly liberty recognizes the tanker agreement still in effect the st is in the letters there's a back and forth between the parties when this ship became an opportunity for the for the union and for the company and let's assume it is there think it's more than assumption that just because when liberty came to us the st letter that they sent to the union which is on ship joint appendix two before they specifically make reference to the taker agreement as the underlying agreement and what they characterize is our reading of this agreement so that's an issue of our reading of it that right there tease it up for it this is what we interpret the contract to mean that's for happened in the thirty years since and we don't know what's in the well i'll tell you what we do know is that that's none of them but would you be we let's assume the tanker agreement just by itself is different because we think it's in effect is different as as delivery sure would you be it's would you be  satisfied going to arbitration just on the question of whether that monica greenman covers this one ship you know that would be a question for you to decide and in a lot of the arguments you heard from mike but other words just pinning little limiting the arbitration to the four corners of the loan agreement that you tendered to us your exhibit a  or whatever it is because i thought i thought that it's pretty obvious that a ship carrying tanks or whatever it is is not a tanker and your theory is not so much that you fit within the four corners of just the tanker agreement your theory is that over the course of thirty years it's somehow become the case that this web of contracts covers all of their stuff sure and if i could respond to that the tanker agreement as you recognize that does have broad arbitration provision and that was the same arbitration provision that literally won this court found to be broad enough that agreement does make reference to other side letters memorandums of the agreement so that is for arbitrary or to decide is the issue is ok we have an arbitration clause it broad one side of the union says this is the piece work is bargaining it work the other side the company says no it's not for whatever reason because it's a different class because it's a different program that is teed up now for arbitration and the arbitrator can consider both you have the nd master agreement and a dispute about whether it's in fact well i'm certainly very assume you have all these other you have the two thousand and twelve you which makes reference to some time certainly don't mean to lose you and that's not the point of our position and i think what judge berman jackson recognized is that's a substantive question the question for the court is is there an agreement between the parties  that is yes there is absolutely is an agreement liberty doesn't dispute that then the next question the court has asked is does that agreement have a broad arbitration provision the answer to that again is yes there's no dispute to that liberty one also found th your excepts are just all of that uncertainty about these other agreements go not only to scope but to arbitration sure and we don't know which of those agreements suppose we are missing these fourteen documents are missing liberty could have easily put that in front of the judge the district court and said this memo you amended the provisions of the arbitration clause doesn't apply to this this modified in a some way that didn't respectfully your honor that question is not for the court that's not an issue that concern to the court that's not an issue that the district court considered that's truly an issue classically in labor law for an arbitrator to decide the scope of the work is just like union is saying that's that's a vessel that got under us flag and our position is we interpret the contract to be covering that best look at the contract and absolutely absolutely but i mean given all the other documents that given how but again honor that's not those documents don't speak to the broad arbitration clause that's in the underlying master agreement and what you're speaking to now is absolutely relevant if you are the arbitrator that the parties are chosen to decide whether or not the liberty piecework put all the other relevant pieces in or just saying there are no more relevant pieces well i think that the burden if it was if they were relevant documents that spoke to the arbitration provision certainly the union would have put those in but we also didn't want to burden the record they didn't ask to an allegation that says to be clear court that was thirty years ago you know there's a memorandum of understanding things we have attached reference a bunch of other agreements and communications so you've already put into the record that that's not the whole story there's more to the story there's other pieces of it's been a long time and a lot of paper has asked between the two of us so somebody had the burden it seems to me of sure and therefore the burden that i've said why i understand and i think the burden on the at that situation on the company if they're saying we have these fourteen documents that are in the record and we need to see those as you said your honor there are parties to the contract so they should have all the things yes yes but my point is we know how to take take dry cargo vessels right they clearly say they're no longer in it and if they're no longer in the agreement i'm sorry the clause in the dry cargo they've they've acknowledged the taker agreement the taker agreement the dry cargo agreement have the exact same broader of attrition provisions so even if we just set aside the dry cargo dream if i ask them if they agree that the current that there is still a broad arbitration agreement for the tanker agreement that defines the scope of their arbitration duties do you think they're going to say yes i had read them to say you know what i would expect them to say yes because we were dropped the process of arbitration right now they say no and they say my answer recognise as your complaint recognises that's not the whole contract the whole contract has spawned other agreements right it's not just that thirty year old  no way to give you the sort of narrow arbitration that i had in mind which is to just take that the one full version of the attacker facts fact as fact but again with respect to the wives document and these fourteen agreements the documents that were not in the record we didn't think we needed to put them in the record because the record is clear with respect to the arbitration provision it's clear with respect to that in more you in two thousand and twelve that makes reference back to the c v s and at that point if liberty thought there was something relevant in those fourteen documents it should have certainly if you're the one that asked for judgment as a matter of law yes so why did they have to come or why did you have to again either put all the pieces or put all the pieces of all the in additional agreements of this living document that are in all of relevant to the continuation of the not alter modify or end the party's obligation to submit all disputes to binding arbitration and those letters a memorandum of agreement inside letters that they didn't get that they still face they argue that but as you said there's another view that there's nothing and there's nothing that they've brought forward to say that this is in your honor again they've been a party to thirty years if they were aware of something that obviate their requirement tell me that the agreement is bigger than what you've given me then how can i make that decision as a matter of law again because you're only if your question the question to this court is a question for the district court was is there any agreement the answer is yes does that agreement contain a broad over tradition provision in answer is yes is there more in that agreement sure there's a lot more would you like to go through every page of the agreement knowing that it has nothing to do with the question of the board over tradition plus so are created position is we did has admitted that so based on the answer and based on their admissions we don't believe we need to do anything else and that will be below should should stand thank you thank you i'd like to begin with judgments comments to her comments somebody had the burton and other black letter civil procedure law it's the movement it's not they're not a movement as you can look really put it we don't have to do sois now there are some good reasons we didn't do that brief summary judgment griot will change the record and it can be decided that that's the principal basis for reversal mr murphy referred repeated these are the broad arbitration clauses and he said things about the documents that you don't have all those  so do you have a good faith basis for representing to us or at a good faith basis for putting into question whether any of those side letters and then my use of such clause yes your honor and again even if it's just an issue of scope of what the arbitration clause covers you can't conclude that it's wrong without the whole arbitration because you don't have the whole arbitration clause the original agreement had section two a through p and they gave you one sentence from today and said that's all you need to see there's a lot more there in addition to modifications on the on that's one thing to say that changes of course but they have nothing to do with the arbitrary your agreement to arbitrate as to the breath coverage of the cargo or tanker agreement it's that the record will substantiate with the correspondence said which is that you don't need these extra agreements adding ships if there weren't if our position weren't supported on scope if i could just speak really about liberty one he referred repeated to that case it was decided on a summary judgment record it involved a different contract for two thousand and ten m over you and there was only one issue in past a ration issue obviously if they're going to dispute about whether the two thousand  m u wasn't everything you needed the case would look more like this one here there is a dispute about what you need and also it's on summary judgment absolutely wrong or if there are no further questions here's th