rules apply to to zoom conference fifteen minutes for side will give pounds counsel the opportunity to reserve some time for a bottle and so without further ado and i'll be keeping time i suggest you the parties come today to present a question of st impression but happily for all of us it's not difficult question indeed the case law and the undisputed facts make clear that the district court made a mistake i think i heard the court in earlier argument use the expression the district court changed it well judge and shape it here in finding that that district court lacked subject matter jurisdiction it did and it does and that's because the claims presented to the district court falls squarely within the district here we're asking that the decision be reversed in the matter remanded to proceed on the merits it is all we understand and we understand the positions we've we've been involved with the case not not as deeply as you folks have but  it doesn't waive sovereign immunity and therefore it has to be prodded in the court of federal claims what what are you relying on in the saying that the congress has already waived the government's sarber immunity because the nature and the substance of this claim is salt in flavor it folded in the court there's there's that kind of a claim that that's an independent basis for jurisdiction doesn't matter what the statute says yes paregoric and all safe to ask the engineering case in a court of claims in two thousand just a couple of nugget's that the court wrote that the jurisdiction of the district courts over actions involving maritime contracts exists that the expense of the jurisdictional grants of the t government says well you have to read this statutory claim in conjunction with the tucker act it was a no you have this statutory claim conjunction with the court's constitutional grette its original jurisdiction with the suits in adults yet with twenty eight is some overlap on the jurisdictional hook for both claims but what we say is that the government in the district court jumped over the constitutional grant to the district courts subject matter jurisdiction ignored it and then went to the doctor acts you'd have to get well in your brief e c m to argue that the parties could and you cite the settlement agreement as a basis for jurisdiction but if there's not jurisdiction it would matter want it's it's a negotiated document between you and the united states isn't a fundamental fact that parties can't confirm jurisdiction on the start and it doesn't matter whether you and the other side say you know we want this in federal court if there's not jurisdiction  jurisdiction if there is there is and that science independent of anything that the two of you happen to say in an agreement right i think that's correct so i'd like to explain eleven problem if you stop the announces a well you can't  jurisdiction so therefore go to the court of claims the government's told the district court and you can find it in your post record at page one o seven judge andrews asked the assistant u s attorney well ms hughes is it your position then that the breach of district court or the district the delaware and if you're bringing in the breach of contract claim you bear the burden of proof but when you actually try to exercise that right we're going to tell you have to go to a court level we get there will say we never we have cyber immunity in your claim goes into a black hole in fact it is sir and all that on that may be true my question to you is i hear you saying yes if there's not your question of jurisdiction doesn't depend on what un a government lawyer agreed to write the did just you can't depend on that right i agree with that state your honor but at that statement in of itself maybe if it is in incorrect way to issues that are before the court now because it's not a matter what i'm basing our argument on what the terms of the agreement say and the part we raise that argument to support that this is where the parties intended to be because that's where they're his diction argument there so will try to hear the court's already heard one of these disputes the court satisfied itself in the district that is he that had subject matter jurisdiction rendered a decision that went on appeal to the circuit cour appeal we traipse down to lewisburg west virginia when the th circuit judges were having their conference we went to a historic courthouse that had spittoons at the end of the aisles it was pretty neat actually and the heavy hitter from washington came in that this is something that's really important to the to the national security into the national interest and by the way the coast guard has the authority under review bill discretionary authority to hold up the ship and not the court the court can't tell you the terms of what the ship though the angel exports decision said that's right you have an after the fact remedy where you can bring a claim for a reasonable d delay right those old why should we not follow that well we should follow it and we should let it go through that as i understood the th circuit's  if the d c circuit they were they ruled in a way that's contrary to your interests right know you are actually it's not what so that was a subject that was not a subject matter jurisdiction dispute that was a dispute saying it was a summary judgment that because the parties had agreed certain terms because there was no evidence in the record of actual damages there was no claim presented that was going to go there wasn't a contract between the parties right there there was no agreement that could possibly be agreed and so the challenge to judge tomorrow was about let are we back to whether you can agree on jurisdiction thousand ohi he is not maritime yes your honor i do because that's that's not quite a full understanding of the issue the the th circuit looked at whether or not the supplemental ad the next step you do in the goshi ation you come to a contract now here this court's different because this court needs to look at the the nature of the contract and again i say the contracts maritime i say that addressed this issue in the age issue that it addressed was slightly off kilter it was whether or not the the claim that the government wrongly without the vessel and didn't give us reasonable terms falls in the in the district courts maritime jurisdiction the th circuit relied on a case called the mining in a say this is a discretionary function given to the coastguard expert each and see in these matters and there's no law or standard which the district court ten review has to do with this withholding of the departure opportunity is not something that's governed by admiralty act right so so  what is is it isn't the fact that they were talking about in rem versus not in ram is that the difference here how is it you're distinguishing in saying forget what the th circuit set yeah that's an easy one just so th here we're different because we never said that this was an arrest and this is in ram is that the basis on which you're distinguishing the case no i mean in part i think that that is a correct statement but that's not the basis of the argument what we're saying here is th with one point on this the th circuit made a point of saying that the coast guard exercising the ability to withhold the departure clearance is and in force meant action not  supplemental rule b r c it rest or attach that right just that they were making not that it was been nabel to matter it was the way it was being argued by the parties at that time in that court i got it thanks i maritime jurisdiction and we're talking about adam attained maritime jurisdiction so i think it's a mistake to think of as mr cho's suggested principle that if there is a maritime claim against a set and then the cut is substitute money for the ship that when the vessel goes on the money attaches to the ship that that th claim remains maritime that it keeps its maritime claim and i think that's council's agreement in this case here i think so too right exactly so but that claim does not arise because there is no maritime reading from your document that criminal and civil penalty claims it was understood by the federal government when it wrote this well and i'm pretty sure that mr chow says clayton say here you cite this government because we've matter now this was presented by the government right the government drafted it big government presented it and said we agree that criminal and civil penalties are going to be handled pursuant to the admiralty and maritime rules of civil procedure actual maritime claim against the vessel the only way that the claim against the vessel in red would arise and at situation is if they own a doesn't pay a criminal penalty and the united states would would actually go after the vessel yet what regardless regardless of whether it's in ram or not speak to the admiralty well are you saying that if it if there's not a specific in rem claim there's never admiral really has this this is a criminal what this contract is doing is it's like providing for a criminal penalty and for the for the for the prosecution of a crime so may nd does that to your question is that even if even if in paragraph nine the government was recognizing some admiralty flavor and we're really not that the principle that the admiralty claim that the admiralty claim attaches to is it could have held that ship for eight or ten years and that wouldn't affect maritime commerce and they were not under come under kirby it wouldn't matter you can hear you can hold the ship and you can refuse to let it out of work for as long as you feel like it as long as what you're saying is we're talking criminal law here it's got nothing to do with maritime commerce that is  is the question is not whether the overall transaction affects maritime comus it's not whether from the perspective of the vessel this affects maritime comus could be is absolutely clear what matters is whether the contract and the terms in the provisions of the contract whether the principal objective is maritime conk comus taken such a we have a lot of maritime contracts in the referred to in this case they involve if you read the entire contract it provides for jurisdiction over the criminal case it provides for the care and housing of criminal witnesses and defense in the united states in hotels eating united states food it provides that the evidence in the criminal case is authentic and it provides a bond for a criminal penalty and at no point does any provision in kirby's language make reference to maritime transactions  but if that were true there's another part of could be that's relevant here which is that you know if there isn't enough substantial part of the contract which is not maritime then it doesn't matter it can still be a maritime contract insubstantial that the whole notion of this agreement was to get the ship out of port but the whole point of this was look we'll say what it will say whatever you want just let us go right here on it seems to be that seems to be what was going on here we got your ship and you're not going anywhere look give us the docking it will sign it will pay the money we'll put the money at just let the ship go you're saying that that that that which infuses the case has really nothing to do with maritime commerce you're had no it it's not whether the agreement between the parties or what you're looking at it from the perspective exclusively of the vessel the a commercial contract this is a contract between the sovereign and a criminal defendant it does not have reference to maritime service is a transaction is if you look at the actual contract and i really  look at the contract itself and what it prefer it's in the obligations on the parties it says nothing about what the vessels going to do after the vessel could barbara and in the delaware bay forever it could be sunk and be a habitat for reef fish as say as far as the contract is concerned it doesn't matter what the contract provides is that the criminal action is going to be prosecuted and  claim obviously the government's trying to wrap up all of its potential possible liability and fillin everything but that in fact what paragraph nine is saying we have the money we're going to take any claims that we could have had years disputes in the district of delhi or any dispute between the united states in a robbery regarding payment shall be submitted to the united states district court for the district of dollars now everybody agrees you can you can't confer jurisdiction where it doesn't dispute doesn't mean any dispute it means any dispute that we bring against you that's how you read that document well any disappear under that paragraph that involves money right and you just get on that paragraph that involves money is going to be and it only applies to that paragraph is going to be us that assessed metal and for the other ones if that the thing that this case you want to is that it's a monetary claim and it's the claims money against in this case the contract has no maritime elements the district court was entirely correct about that it's not a commercial contract it has nothing to do with goods a passenger is a ship some marine insurance it has nothing to do  there's even like a prize cases that this is an entirely different animal and its terms and provisions and the obligations of the parties relate to the prosecution and the ship is that as a criminal defendant it's not that because it's selling bananas that the united states and that makes all the difference it's just a regular criminal case i'd just like to respond to the point that you were discussing  or maritime employment is subject to maritime law and the case is one of the admiralty jurisdiction this falls squarely in there now just because the government gets the benefit of being able to prosecute a case and have witnesses who by the murphy's assertion that this is distinct and different from any kind of maritime case because it's a criminal prosecution that makes it qualitatively different it's not about maritime it's about  law a criminal law breaker being held to account and if you've got a claim under section one thousand and four h that is something you can take to the court of claims well look i can't believe the government's at dancing at our vessel compliance with shipping laws and international conventions marples international mentioned that it's intended to protect the marine environment but balance that ambition within that with  not by mistake and i think it's important that the court will i mean just a few seconds right the reason why the government attaches the bond as if it's the vessel is if it was just to answer the question about it's just a criminal case it was just a criminal case and the government gets the judgment their judgment creditor right but in the maritime world bezels are subject to two lots of lean claims st preferred mortgages seafarer wages personal injury claims net provision necessar all that would probably just a general judgement credit so that the government is playing this thing they pretty well past those they want the benefit of the maritime rules they want the benefit of the abacha protection claim but they don't really want to to insure them and these are all maritime claims now you're over time by now but if you had if you wanted to know a couple more seconds if there's something you didn't get