the plaintiff below as the ask any of the so called world fuel energies the shippers in this case and their insurers and the irving oil entities the so called consul any and their insurers the chapter eleven plan was confirmed with the full consent of the police by the u s district court for the district of maine despite c p and its affiliates the apple e stating under oath and under penalties of perjury that the april fourth two thousand and fourteen notice the so called april notice was the relevant notice of claims by the world feel energies under the karmic amendment and therefore necessarily that any time period if any ran only from c p s april twenty fourth two thousand and fourteen response making the action below timely commenced under any circumstances the court below dismissed the action as untimely indeterminate time and c p s earlier response which was only to that first notice under canadian law and which was neither final nor conclusive the core polow use those notices in that response to trigger the time period and determine that the case was untimely file or before as information is concerned with the canadian notice they cover all bases  or mac is really well in this case it clearly did not your honor and this clase in this case the world's fuel entities decided to break the notice in the two pieces specifically because the situation was completely fluid as between both what was going to happen in canada and what was going to happen in the us that's why they said in that notice that it was without waiver or limitations whatsoever as to the rights of the notifying parties under us law including the karmic ame would what happened in canada cut down the liability for america from people here it would have actually ended up increasing it what you had with the world fuels did with the first notice say that they were claims that could arise to third parties under canadian law in that there are claims possible claims direct statutory claims under canadian law with respect to the karmic amendment claims which extend to  damages arising out of the drill not those damages were still being developed at the time the notice was given which is what world fuels pointed out if for example it was not clear exactly what claims would arise from the accident itself whether there would be something beyond the wrongful death claims personal injuries for example environmental claims at that point in time are still being determined is the key here though the notice or the liability whatsoever and maybe not specifically saying karmic but with the denials it would include karmically i would disagree with your honor think they were clearly only denying the canadian claims but more importantly if the notice itself is insufficient the response to the notice can't trigger the term the karmic time period and the cases are pretty clear on that point including the cases cited by the applebee's for example one of the cases  as i thought the key was notice of denial not so much the notice of a claim sure but unless there's an original claim that's adequate the denial of that inadequate claims noticed starts in no time period  american rock salt vs norfolk southern specifically states that a notice that says we will file a claim in the future is i meant determine that time is not a valid karmic notice and therefore can't start it doesn't create a response obligation and doesn't trigger any form of response deadline another case they cite bertman ironworks which cites the standard for denials under consolidated rail combustion engineering v consolidated rail makes it clear that unless the original notice is valid the nine nine months into your time periods can start that same point is made in american rock salt so if the original member notice was inadequate karmic notice which it clearly wasn't because it states that there were claims will be filed at a time in the future no time period started running many of those cases involve a response that says something to the effect we deny all liability including a karmic claim the april response lots of they don't say the earlier response was posed that that was the response to the to the first notice we deny all liability including any potential karmic claims would you say it starts to run at that point no it wouldn't because the original of  notice was not a karmic notice until until the claimant actually gives a qualifying carmack notice it doesn't matter what you do with the responses at that point n c p i think clearly recognized this when they fought one case supports their proposition there are a are can use in connection with setting the time periods but all of the cases even after the regulation make it clear make two things very clear the regulation is not itself a statute of limitations unless the regulation and the time periods are incorporated into the bill of lading it has no effect in other words the time periods are contractual periods not statutory or regulatory where there is a statute that says that's a floor correct statute is the floor right but not the ceiling what the district court's ruling below would do is turn the floor into the ceiling and that's not there's no case that supports that it where in the record is the bill of lading in this case that would tell us whether or not those regulations had been incorporated conditions it's not all clear what those terms and conditions are that are being incorporated under the fourth circuit opinion a b b that would be insufficient to incorporate any terms and conditions but more to the point even if that were a specific reference to the the limitations period would not apply at all is there anything in the record as to why that's not in the record or whether those terms and conditions are available to to actually answer the question whether or not this uniform do include those tariffs they certainly could have included as part of their judgment on the pleadings record or their summary judgment record and they did not and frankly even if they had there would have been a factual issue as to whether they had successfully incorporated those tariffs into the again as a matter of law under the a b b case out of the fourth circuit and the chartist agrees cases out of the sudden the new york that reference by itself wouldn't incorporate those provisions anyway it would be inadequate as an incorporation as a matter of contract and therefore the time limits would never come in but more to the point even if that was a proper incorporation by reference the record below contained none of those tariffs and therefore there was nothing for the district court to look at to determine whether or not there were contractual limitations that roof look about here my mistake and i thought that the the appendix the so called regulation the uniform bill of lading applied by regulation applied to altering shipment what the the what  what the regulation says is that carriers are supposed to use the uniform bill of lading but with the case law says very clearly is one the uniform bill of lading is not automatically incorporated by reference into any bill of lading you have to actually specifically incorporated i nto the time periods are subject to negotiation and case is decided after the rule was in place including row cases are uniform is not a single case to the contrary say that the uniform bill of lading is not  the may have been issued as well as the documentation concerning the filing of the claim in the disallowed in this case and shall in the four circuit shall be linked cargo slattern or brief none of this information is contained in the record present before us and it would have to be developed to and allow development of the record as the one whether these terms and conditions were incorporated whether any contractual limitations applied or not and what they were none of that information was before the district judge the or i'm careful lawyer was there any humanities but it would appear to have been the prudent thing to do because it was impossible at that point in time for world fuel to know what it karmic damages were and there's a long period of case law a long series of cases that stand for the proposition that you don't have to give any notice under carmack until you can reasonably determine what your damages are the sort of prudent course is to do what world fuel's did here with their april notice which is to tell people what you know your existing damages are but make it clear they are going to file claims for subsequent damages so i can only assume that the reason that they did that your honor is because the damages were fluid at that point time and frankly remain fluid to this day the the other even beyond which notice was the proper notice and incidentally as we said we think that the november notice in addition to the fact that it expressly says it's not a karmic notice would not qualify as a proper karmic notice under the american rock solid case in addition to that the chapter eleven plan told the actual limitations period where the limitations periods were the contractual period even if they had been properly applied under the tolling provisions of the plan which only the united states district court for the district of maine had the right to construe directly in the confirmation or your honor so we're not relying on the settlement agreement language we're relying on the language of the confirmation order let me see if i understood doesn't it told claims against and may in the world fuel entities in the released parties the settlement agreement language was drawn about the confirmation order language toles all periods of time including this last two as set forth in the confirmation of the language and confirmation or language clearly told this time period you think it tol entities that weren't party to the settlement very well in this case c p was a party to the confirmation because they consented to the confirmation of the plan the plan of not we're not relying on the settlement provision relying on specific language in the exchange for which all these provisions were told and it's not as narrow as the settlement agreement applies broadly and clearly applied to this case the district court in fact recognized that but misconstrued that the accounting of the tolling period by frankly just missed construing a misunderstanding an amendment to the settlement agreement but again it would only affect the settlement agreement tolling period and not a confirmation order to him period so we're timely whether we're under clearly under the april notice which we think herman act in the language of those notices dictates but we're timely even under the november notice is used by the district court because the tone period and importantly one of the things he consented to about the tollin period in the confirmation order was that issues all around the confirmation order including the tone period were subject to the exclusive jurisdiction of the main district court if the towing provision became an issue below what was proper for the judge to do that point would have been to defer the united states district court for the district of maine which might have referred to the bankruptcy court for an interpretation of tolling provision which we think would have completely changed the outcome should've ruled on it all when the just record in fact ruled on or to misconstrue the tolling provision which would have made this action timely under any set of circumstances and we think that was was critical  a number of other issues raised by c p including issues not rich where the district court and i'll just touch on those briefly or owners first the claim that we haven't stated a privation case in the complaint is negated by could still be liable under karmic since the improper classification was known to them and apparent to them even if that classification had been entirely secret it doesn't destroy the cause of action it merely switches our burden to trial to prove that they contributed to the damages they claim this is a contribution claim it's not it's a direct claim by an ass any and we have assignments from the insurance companies and the parties themselves which gives us all of the a con but obviously the supreme court is enough where the damages are forseeable is obviously factual and i think that addresses unless you want to serve other questions i'll save my two minutes of my three minutes well thank morning needs only decide for issues to decide this case the first is true and one of those issues is is automatically decided if you decide the first two in our favor the first issue is whether the regulation makes the to your nine month statute of limitations a contractual provision of the bill of lading and it does i mean just forty nine c f r ten thirty five point one in which the parties could negotiate a bill of lading that had terms that were consistent with the statute but not the specific timeline of the regulation well the regulation says all interviews it says required and yet you're posing counsel says that the case law is suggesting or saying maybe even that that's a negotiated term so long as it doesn't violate the statute can you speak to that issue and i think the cases that he cites are cases that are motor carrier cases and the morning carriers are not bound by this regulation or are also cases where the come source case are cases where the  the union pacific railroad tried to negotiate down this provision and made it get one year statute of limitations whether than two year statute limitations and i think that the statute or the reg provides that we're word require required it's only required unless you negotiate it otherwise well it's a little railroad laws a little bit complicated and there's still again i agree and i'm sure has attempted to negotiate one year statute of limitations when your limitation period as a matter of contract in the bill of lading sometimes successfully sometimes not successfully and the com source of food service case is a good example of that where they did incorporated but the distinction between this case in the a b b case which is cited by by plainest and appellants in this case is that what it is there is no regulation regarding limitations of liability there is no regulation regarding restricting in any way the liability that would carry or would be forced to bear and as a result of that as a result of that the carrier needs to incorporate that limitation of liability into the contract into the bill of lading whereas in this case it's a kin to when terrorists used to be filed charged with knowledge of what the regulations say and you are dealing with his fist a gated shipper here world fools feels any case so i think under the circumstances you can negotiate a lesser or more but if you don't  information as to whether or not those were incorporated and repeated the record shows nothing that would indicate repudiation and the regulation is such that the regulation says that we're required to use th a straight bill uniform straight bill of lading always goof that up and that the regulation is it is something that the shipper can be charged with knowledge of just as all the regulations are the second issue is the issue the judge being was getting on is is the notice the november two thousand and thirteen notice flammability requirements that the there was a complete denial of all claims now there wouldn't be any change when they got around to doing it in april of the next year of fourteen the fact of the matter was they denied all claims and the the notice that mr keyes keach seems to seize upon and that's the notice of claim notes that the bill in paragraph twenty four notes of the excuse me in paragraph twenty three notes that the bill of lading had made the claim previously and in twenty five made the same notice again and it is cruel regarded as notice so under the circumstances there certainly is a situation where the the the denial was absolute the denial was disallowing stick each notice that matters though what it's not the notice that matters the cases are clear on that point it's the denial that matters but what case cases make that clear the car transportation case the golf rice arkansas versus united union pacific the adams express case versus corner which is the united states supreme court case one of the problems with this is usually the amount that's claimed is the amount that shipped and one of the and as a result of that a lot of the case law and i've found it a little bit that you mean the value of that in this case the oil right well in this case the well but usually it's a much smaller amount and the cases are decided are decided by the courts of appeal scuse me the district courts the trial courts as a result we were we cited a cases to this court which is somewhat of a problem because this court is used to getting a circuit or supreme court cases cited to it and the nature of these claims is such that they were not of sized that they usually are and as a result of that we cited a lot of district court opinions to the to this court and i apologize for that but that's the situation because usually what they're talking about is the property that that is  shipped and the value that is usually less than it matters to get to this court in this case where there's a billion dollars at stake maybe maybe getting to this court makes some sense the third question is whether the lawsuit was commenced within two years or not and if the court decides the first two that the regulation imposes the country actual statutory limit and the decides the second case that the the notice was adequate under the circumstances the third issue is answered automatically because i don't think there's any dispute that the lawsuit was started more than two years and one days after the november notice and the fourth question is whether the notice that irving filed was timely and i think that it's not i certainly on one hand they argue that they are entitled under the bill of lading to make the claim and on the other hand they argue that somehow or another they're not bound by the terms of the bill of lading and they can't have it both ways they can have an indefinite statute of limitation either they file under their or entirely the file under the bill of lading and they did file under the bill waiting or they didn't or they don't have a claim at all so and and the limitation of liability which no regulation even addresses and the a b b case for example is the premier case and that the talks about the limitation of liability provisions of the bill of lading whereas the regulation there's no regulation that deals with any kind of limitation of liability and and when when when with  forty nine c a fart to ten thirty five point one makes that applicable and makes applicable the bill of lading which is in part part of that to be and that's which contains the statute of limitations the contractual statute of limitations that is a matter of law is applicable to these these parties and in looking at the the  water carriers and makes that provision applicable to those carriers and there is no case that suggests that it's not applicable the cases baby aren't as clear as they could be but there certainly isn't any suggestion then you intend to hold the carrier liable and under the circumstances while it is true that the damages were somewhat up in the air they're certainly not up in the air now the damages were the amounts that will fuels amount of necessary you can make the filing of the claim that indicating the category of damages that fall in an world feels energies did they did get the can categories of damage then something a little different though right there was no preemption issue with the canadian plane so presumably they had to make a separate claim on the canadian law under canadian law what they  under the canadian claim was all damages associated with the doraemon and what they saw and under the karmic claim was all damages associated with the ground so the did the nature of the damages that they sought wear the same am saying well it's not the notice that matters it's the denial that matters at least for triggering the tie period right but i think there's a another question there is at the notice with the denial that matters for purposes of content you know and that seems to be a slightly different question particularly where they actually say i mean it can it can in their notice this we're not we're not claiming anything under car mag you're saying that that's not within their months and the permit requirement is nine months and so they made their early claim with the canadian regulations in the later claim with the karmic regulations but the point of the matter is is that they sought the same damages in both and in the nov twenty seventh two thousand and thirteen denial denied everything so there wasn't any question what would happen when they you're arguing that this should be that this should be classified as the karmic notice no no the once again the operative is the denial not the not the claim and the denial denied everything ended up with saying that because you defrauded us about what the lading was we're denying all the claims and by denial of all the claims that resulted in the running of the clock and the clock begins to run in this case in the gulf rice case in the adams express case vs kroner which is a united states supreme court case the clock began to run when the nile was even though the claim was under the wrong statute no the conflict of law case the conflict of law treatise that we cited in our brief talks about a canadian claim but the fact of the matter is that denial alone of all or any part of all or any part of the claim for damages results in the running of the clock and the clock did run is it your position that the elements of the canadian claim in the cormick claim or exactly the same the damages were slightly different in that in that the original canadian claim made about two million was about six million dollars for for the cars in the lading and there was a slight adjustment on the later one but they talked about all damages associated with the  covered by the canadian claim and damages all damages were certainly sought in connection with the august claim so maybe unclaimed involve canadian law the elements of law derives from canadian law but in the karmic claim may have included the but didn't because there were some differences in the end to the damages were the same time limits were different the canadian claim has to be filed within four months and i think it's nine months for the for the karmic claim so they filed two claims but the substance of those claims not not necessarily the timing and not necessarily the statutes they were relying upon but the damage they sought were exactly the same and that's pointed out in our in our notice who claim we said that the canadian claim was p actually admits i think the fundamental point which is that the time period have to be incorporated by reference into the bill of lading in order to be valid what they claim is that the regulation default mechanism that automatically incorporates those terms into any bill of lading that doesn't include them there's absolutely no authority for that point and in fact the union pacific case they cite for that point although it doesn't say that to the extent that it could be read to make opinion which specifically says that the two year period was not incorporated by reference into the bill of lading and that the district court erred by doing that there is absolutely no one story for that point it's not of the phone mechanism more importantly c p actually isn't arguing that they didn't try to do something with respect to time periods and therefore they need to rely on a default they're claiming they incorporated their terrorist by reference and they're claiming those terrorists include time period so they're not saying the parties didn't negotiate time period and they needed the fault what they failed to do was introduce into the record below what those time periods might have been were to adjudicate the issue as to whether they had incorporated them do you agree that the elements of damages that is no the you we would contend that the us law is broader i'm not sure mr jordan would agree with that but that's an issue for trial the the other thing is i think you have to look at and i appreciate i'm probably past my two minutes but you have to appreciate what c p actually their response is meaningless there's no such thing as a preemptive denial of karma academically once is a valid claim there can then be a valid denial that triggers the time period we don't have that here thank  depreciates the arguments today one thing that's for certain is it is a complex case and we'll do our best to wrestle with it and figure it out an issue an opinion in due course