we'll hear the first case on calendar and see a limited versus o w bunker u in fall of two thousand and fourteen o w usa sold and supplied marine fuel to norwegian cruise lines and its vessel norwegian spirit at a port in europe the vessel undisputedly received and consume the fuel however norwegian still has did get paid the person who did get paid is a great county or honor current bunker would likely have to pursue them in greece i think also a valid question is whether that company company can be implanted into the united states  at this point your honor going to usa does not have any intention to sue that third party the intention is to collect from norwegian cruise lines pursuant to the contract i understand right  usa commenced arbitration proceedings in london pursuant to its contract and has in fact already served claim submissions norwegian responded by asking seeking an injunction in the us courts the district court held only one hearing concerning whether a preliminary injunction should issue in this case no witnesses testified and then we just did not even offer its foreign to clarence for examination on the other hand us a requested a full trial pursuant to the federal arbitration  three and four nonetheless after just that one half day hearing the district court granted norwegians preliminary injunction and o w us a pealed o w usa raises two primary issues to the district court and correctly interpret and apply english law to the contract when it found that o w usa is one in arbitration cause was superseded by a third party's form selection because it does seem in a dispute between the parties to a totally independent track which has the choice of law which is imposed to one of your subsidiaries for which there's no finding that there are either your alter ego or your agent trying to somehow get imputed into the dispute between the two of you yes your honor and counsel is conceded in oral argument before the district court that each of the contracts in this chain of contracts and i will point the court well go ahead and i will point the court ok did it what it what did it have for me it had a conclusory self serving declaration that was originally submitted to the bankruptcy court without penalty of perjury did it have the delivery receipt which was handed to the captain of the ship or to some represent the ship at the time of the delivery like i see in all the other who cases yes it did your honor in the district court like many of the other o w bunker cases concluded that the language on the delivery receipt was immaterial because it was after the formation of  court actually although it didn't target it in applied english law or attempted to do so and specifically the clause for which require its insistence the district court looked at all that and then eventually applied a completely different rule were that's what he said he took that leap that's correct your honor and our argument is that o w maltose acceptance of those terms if there is such acceptance there's no evidence on the record but if there is acceptance about every malta's terms that does they were accorded to insist i believe that that could have been directed to or that we haven't seen any community insistence in the end whatsoever so i'm not entirely sure keep referring to the terms and you're saying the terms don't amount to consistent with their terms and conditions that's the condition for fueling the ship which if you don't get fueled sits in the harbor and and and can't perform the insistence has to be such that norwegian is bound by the terms if we look at those terms and conditions specifically page a seventy five of the joint appendix it says that this agreement shall be governed by and construed in accordance with greek law and any disputes shall be submitted to great courts echo's terms and conditions assuming these terms and conditions actually do apply are expressly limited to this agreement which is between echo and o w malta there is no reference to who has no contractual relationship whatsoever with the ship and the ship we will require that the ship it here to our terms and conditions any prior arrangements are any prior arrangements  for the ordering of these bankers shall be governed by greek law when it's recognized that each of these are independent and conceded that they are independent that would kind of stand contract law on its head by having strangers we started as a basis that this case would have paid twice right that's correct we start from the basis that this case is unique and just but when you raise the issues of equity the issues of equity were actually raised judge wesley in your understand why you ended up paying them i get that but that but that doesn't make you unique in the context of the wreckage that's been wrought by you would be a banker's bankruptcy yeah sure i would say that this is a question of sorting out the estate and figuring out whether this constitutes a preference or not right well i think what it what it specifically deals with if you didn't let me ask you this if you didn't have a lien under greek law which you couldn't answer wouldn't this be a example tamara distinguishable on a number of different points where the vessel owner were a party to a contract complete understanding and on and we're not just being asked to pay twice for the same bank or supply we're being asked to pay two point five million dollars on a transaction where o w would have stood to make one hundred thirty one dollars in profit and as a starting point this is a contract case and i understand i understand the difficulty that you find your client in but we don't write just to resolve this are w right to explain to individuals contractual relationships and basic contract principles how does is the contract between n c l and o w bank is us is that separate and independent from the and they insist upon it their choice of law governs this agreement right if there's a study or any subcontract by made by independent parties know what it when it says it what it says is that the bunker suppl contracts of us a contract with out of the malta on the same exact general terms and conditions malta reaches out to echo and says i need a fuel supply for the n c l vessel echo says they had a history of dealing for over ten years a course  dealings where the decorations established that they had their own terms and conditions that apply to these bunker transactions echo says of course opera volume are few on my terms and conditions are required where he is that i go in yes yes they need to insist to us so so according to o w d if you turn to their papers in multiple places they have said that the insistence would need to be in fact mr carter said today an argument that the insistence would need to be to be a martyr and their papers say exactly the same thing that insistence to be a martyr constitutes the insistence to trigger el for the amount of then becomes the gateway for poor choice not so by the terms of l for it says i didn't write the contract obviously o w did it's said it says if the third party supplier insists that its that its terms and conditions apply the there is a different choice of law and form provision and on the all the only other condition which is insistence a lot of briefing a lot of legal opinions on what constitutes insistence let me offer there so we've argued in our papers you have a party is supposed to do it's pretty well settled that if you have you're seeking a service right and the other party says i'll give you that service but on my terms and conditions and then that service is performed which is the evidence before the court in fact even without the decorations which overwhelmingly the evidence in this case all the declaration the only evidence provided supports the fact that your mater knew about the terms and conditions that they applied to n c l that they applied o w but just on the basis of what we know even independent of those decorations your honor what we have is offer and acceptance and performance if that's not insistence well what were they to do what were the parties to do so when the supposed to they couldn't jump up and down sciences to insist i that has to exceed anything any insistence insistence is the first act under their logic there could be no insistence without resistance there could be no modification of the terms unless somebody jumped up and down insisted the after wrong the supplier of the fuel has a lot of power consumed the cruise ship is not going to go away anywhere and that's and that's very important consideration in the context of what's going on here oh dobby doesn't have fuel all over the all of the world leap of logic that old job you're more new ek they work in the same environment they had the same practices and reliances and on the basis of that he found insistence is that sufficient ask i would say that he had yet shown he did rely on that in part and i agree with you here a lot on the actual background history of course of dealings he relied upon the decorations of bach just the general how did i go incest go insisted by when the request came in from malta imposed its terms and conditions they are in the record that is the contract just like as between us and without usa you asked where is the contract there is that there is a contract the same contract the same type of ok transit conditions oh debbi i'm all there fine so many gallons at such and such a place at such and such a price there's a ticket i've seen those but you know it's an order but where is the response that says greek law so so let me ask you is it your view then that the minute the mall the the mall to the agreement is altered by those insistence that somehow that modifies the terms all the way up the net that that then constitutes in essence a demand by malt of o w a us that those terms and conditions be import incorporated into their agreement which then in t echo saying that it's terms and conditions insisting requiring imposing you can use their definition or ours either barristers opinion the definitions frankly don't seem to have a whole lot of distinction when they impose and require that to perform their terms and conditions what happens next is that malta echo performs pursuant to their acceptance if if if malta says no no thank you echoes likely not going to perform did not just if we had objected any other t insistence of somebody way down the line it's relevant to their dispute with their immediate procurer somehow governs your relationship in the subsequent agreement it doesn't like protecting the third party suppliers sounds like altering a relationship the two now your commercial relationship between the person that you that you originally contract with although they themselves never in any way shape or form demanded a change of law in the recognition again that they were going to be dealing with third party suppliers all over the world right and if you look at all four not just so therefore these a v the third party supplier the terms and conditions are altered as to the third party supplier but what has what  yes this is that easy and so the reason why we're interested is because we're trying to figure it out so you can either help us or not but to help you ok so so i get i understand why the provisions in there  make sense to me and i believe me i put i've seen it a million times already because of the i n g cases ok all seven or eight of them whatever they were but but i'm having trouble understanding why we would alter the contract as between the two of you when it has no relevance with regard to your relationship going yes because for says we do and because the l four provisions were drafted by  honor in those terms and conditions every one of those provisions directly benefits and and this was intended to was well in the sense that they did not want to have a dispute where echo had raised the challenge and there was some issue or a claim or something else and it related to us and it related to it n c l and totally a say and they could end up in the generally multiple different forums over the same or very related dispute this was intended to stop that by having one that went back to back to back and remember you got out of usa at the head with yes there are terms and conditions going to be a model same terms and conditions including l for malta to echo right you would you would run out all the way up the line because that way all the disputes would be the one place absolutely your honor and i would submit to the record it's clear that our barrister here are mander judge  for but that is not the right question under this analysis because all four says it specifically refers to the buyer with a capital b the buyer is norwegian so the question is whether echo has insisted that norwegian is bound by down and discuss this and it'll take maybe the time it takes for a legal issue to be resolved by negotiation while the ship sits there for a couple days the thousand people or two thousand you're out of the ship certainly needs fuel in the ship made a decision here to purchase that fuel from your bunker usa how out of your bunker usa want to be out physically delivering it supplying that fuel is not relevant if o w a usa had failures arrange for the physical supply to be under taken by the third party which has terms and has and conditions conditions of doing a thing sounds like an insistence on yes your honor and the insistence is the key here and its  to do the choice to changing the choice of war not necessarily your own or from the supplier standpoint for me kaos standpoint you all for used used just said al for which they didn't make a demand of n  say that they have to do that to comply with all four right yes there are two questions under for it there is who is the assistance communicated to and who is supposed to be balanced by such insistence it's that second question where we're getting tripped up it's the insistence has to be that norwegian cruise lines is bound by echoes form selection and a lawyer on tour with a minor where of the change of the place of negotiation when they got the oil put into it tanks your honor there is no evidence on the record yet this is the n c l who you seek to hold to this change to the original contract was not even made aware of the change when echo supplied it with the bunkers is that there was and where they've been made aware of any potential chains at the time the oil was supplied to this your honor there is there is no evidence in the record there is no correspondence from echo there is no correspondence from in fact you would ask earlier whether the contract between o w malta and aca was part of a record the answer is no the complete contract is not in the record and that's one of the reasons why the district court has ordered o w usa to go out and find evidence of wreck of the commercial relationship the communications the negotiation between o w malton echo part of the argument here on appeal today is that the imposition of the burden of proof on o w usa as a party who is not seeking permanent injunction injunctive relief is incorrect the burden of proof should rest on norwegian you know we have right now one declaration self serving conclusory unsupported by by documentary evidence there is no not that changed with the delivery of the oil your honor that's part of oh to be bunker standard terms and conditions and if we look at the course of dealing in the history between o w usa and norwegian that has always been a part of the w standard terms  the original duty to arbitrate in london or a change duty to arbitrate in prayers existed how would they know that the delivery of the oil affected a change if any your honor i'm not certain of the answer to that question your honor we haven't gotten to a point in discovery process yet where we've been able to put that question to anybody we haven't yet fact the ws a has an answer the complaint yet so we are not in the discovery stage it's just a preliminary injunction before us that's correct your honor and the injunction will become permanent effectively usa does not come forward with evidence to refute the factual inferences that have been drawn by the district court and i believe that the per the burden of proof being imposed on