united states forces a bondo and your honor good morning may it please the court room revenge or an assistant federal public defender for mr america the threshold issue this appeal presents is whether the painted colombian flag on the c m a mugger reaches hall constituted a section seven zero five zero two eat two claim of registry that is one made by flying the nation's and center flag yeah it seems to heart there's to made it seems there's a pretty big difference between displaying a flag and flying a flag and i'm having a hard time understanding how painting a flag on the whole could constitute flying a flag within the ordinary meaning of the english language well your honor i believe that was the concern the district court had and this is where i proposed a district court got that wrong the district court determined that focused on the word fly within the within the term flying the flag and assume from that that flying had some inherent quality of movement but of course as as recognized most recently in king vs burwell questions of statutory interpretation turn on phrases in language not just words and so i would submit your honor and we in fact did submit in the district court that the phrase flying the flag has a meaning in of itself an idiomatic meaning and i believe that's corroborated by what the cambridge idiomatic dictionary believes and the oxford dictionary those definitions are at page thirty one of our brief cambridge defines the term flying the flag is to represent your country oxford defines it as to be registered in a particular country so your honor that's what i think so webster's second so or in the air and gives as an example a flag that flies from the tall staff if we look it up the oxford english dictionary in a section on nautical phrases it defines to keep the flag flying as to refuse to hold down one's flag and surrender that that will suggest to me the district court was right well shell the supreme court decision robinson vs shell the language must be construed within its data tory context and that's precisely what judge ray cough in the prado case cited at page thirty one of our brief did he situated that term flying the flag and the word flying within the general context of the m d l e a a statute which does not regulate something like the flight of kites or the flight of birds where these bodies of movement loft lift might be relevant what the v a tends to legislate is this fear of comedy international relations the language of those fears is about nationality and it's about sovereignty and flying the flag has a very particular idiomatic explanation within that context which if the idiomatic meaning as you say is representing i don't i'm not sure exactly what the words you use were but representing nationality or indicating nationality then it seems to me flying the flag in the statute would completely overlap with the other two ways in which nationality can be asserted what are the limits of that term if that's all it means the limits of the term flying the flag with a flying flag is is one way the nationality may be asserted it is limited probably by the practical realities of having been recognized by in this case the coast guard referred to the capital of south carolina the country of the university well if an old with a know it would be the country right your heart yes i guess that is true but what is indisputable in this case is that the columbian flag that was on the side of the was not subject to that type of confusion four individuals interdicted that vessel on the coast guard boarding team to a man each person saw that flag and instantly recognized recognize a flag for what it was it was  back to the very beginning yes your honor to make where use stated the issue in the case and help me walk through this to make sure i understand your position i understand your position is that the master's a den of occasional flak was irrelevant because the vessel made a claim of colombian nationality under eighty two is is that your position that is correct or are so why aren't we under he which talks about vessel without nationality and speaks to the master or individual in charge why do we even get to be too well i suppose your honor because ultimately the masters the one that took to the sea in a vessel which prominently featured the colombian flag in one sense i suppose the master explain your position is we should look at the vassal and whatever flag a vessel is it's waving it was the biggest flag in the world and it's waving across the say and you're going up the suez canal and you fly a flag of saudi arabia because you  pirates won't bother you doesn't matter that's a saudi arabian vessel it's flying the saudi arabian flag and it's the vessel that makes the climb that's your basic position right you are yes when i asked the question is the next question is why isn't this a vessel without nationality the master stated that he failed to make a claim of nationality or registry for the vessel he was very clear about that and you stipulated to that so why are we even talking about each two or your r r stipulation follows a stampede fifteen out of the record stipulation you stated the master's failure to make a claim of nationality or registration of the vessel so your position is the master did not make a claim of nationality of the vessel so i'm you know i'm really pretty simple i look at the and it says vessel without nationality and why are we there i still don't understand your position it seems that you keep coming back and saying but the vessel may decline it doesn't matter what the masters at the vessel may decline that's basically your position is i think that's fair to say judge and i would say in response that there's those two points i would make as to the stipulation the immediately preceding paragraph of the stipulation talks about the initial encounter with the vessel in the introduction and i think it's fair reading of the stipulation to conclude that the master did not make a claim of nationality at that point but but but is that that speaking to you the that  stipulation was made only with respect to the three that is a verbal claim so the stipulation was that the master had not made a verbal claim as  however there are three ways to make a claim of nationality under section e and we believe that this case fits squarely within number two so when the master said he did not know he was really country x or country why he could have said ecuador instead he said he did nothing he said nothing i mean he could have just said nothing period and i believe that's what the stipulation says that he either said nothing or while the stipulation says he did not know the district court ultimately found either said nothing or did not know he made no claim of nationality right so your honor that i believe is the is the crux of this issue and i think that based on the fact that there is a flag a colombian flag it was meant in coming out of the coast guard in observance of the statutory mechanisms to reach out to colombia first in not objection which it did not do and i see you might even say five minutes for  that against the sitting with us and also table i'm sorry good morning may please the court i'm jonathan colon on behalf of the united states the question in this case is can a master of a vessel make a colombian flag claim when he identified the flag as an ecuadorian flag the m t o e a gives the power to the master of the vessel to make a claim or fail to make a claim when the vet when the when the coast guard came on board he failed to make a claim so under subsection d two they made a request about information about the vessel because the statute says that the master fails to make a claim upon request requesting it let me ask you this question so let's say the vessel is flying a flag literally flying a flag on a staff and it's a colombian flag and the coast guard approaches and says what kind of flag is that and the master says ecuadorian ok you would say that's not flying a flag i would say that he has made it b flying the flag and he says it's like ecuador and he has identified that flag as an ecuadorian flag now what happens in this case the colombian ecuador's flag are very similar but let's let's make a case where we don't even have the similarity question to me no ambiguity let's say it's now made two separate contradictory claims in the statute deals with that when a person at sea and the convention on the high seas as well which is incorporated by reference into the statute tries to make two different claims that's called a flag of convenience you're trying confuse people like as your honor said perhaps for flying you're sailing through saudi arabian waters and you want people to think you're saudi arabia but that's not what happened here because he didn't make a claim of nationality mera he simply identified a flag incorrectly there are three ways to make a claim you can make a verbal claim by saying this isn't ecuador investable it's stipulated he did not say make a verbal claim this is an ecuadorian vessel the government believes that i say is that all the only speaking then to the three issue i want that point he's made no claims so they made by asking questions they were wanted to identify which flags plain if any he's making right because as george prado notes in the re calls decision which  flag flying is an important word in the statute is it's the whole intention is to be seen at a distance ships you could be a great distance you want to elevated so it could be seen as far as possible over the horizon by making it elevated invisible to the world that could be imputed to a master so if you remain silent for example but had an elevated clear is a flag no one could say the master had no relation to this flag that's an action you have elevated and raised a flag that it's clear to the world now it happens that the coast guard noticed this flag unlike the right call decision for the product decision which very cost question whether anyone might see it here it's undisputed guard individuals saw the flag the painted five painted flag but were it but that is you would not contend that the painted fly complies with the to no it's our position that a painted flag alone if the master takes no action is not sufficient here though he did take an action and whatever was in their mind however they interpreted the flag is trumped by his words the master makes the claim under the statute i want to go back to judge players question though why is the pain of playing not sufficient because it's not flying in the air because congress is allowed in its words congress in the statute has described mean there are all kinds of ways one could display a flag and there are all kinds of things one could put on a vest or one could paint on the back of a vessel the home port you could say car to hang your columbia painted on the back of the on the boat but congress has chosen three to define three possible ways the master can make a cla and just not even though this court has talked about looking for other indicia or asking and the coast guard in the interests of diplomatic comedy asks about things like home port but home port painted on the back would not be a claim i mean you can look at the ships here in port of miami their home port might be here but they're not registered here so congress chose the word flying a flag and it's our position that that is what constitutes a claim but even here if that mean but if  point the government wishes to emphasize is even if it did at a it's trumped by the master's words or at best if the master's words and the painted flag are of equivalent weight now you've got two contradictory claims and the statute deals with that situation declaring because they've made multiple contradictory claims otherwise we'd be in a situation in another case your honor if the coast guard even though they believed it was colombian if the coast guard's in a position to disregard the master's words we'd be here in another case where the appellant's would be screaming bloody murder we said ecuador and the coast guard wouldn't shut with columbia instead that's not what the statute provides the statute says that the coast guard he can make a verbal claim which he didn't stipulated he did not he did not say colombian flag claim even though it's painted on the side while the paint to fly below might not suffice if he had said that's a colombian flag that might have satisfied he three it might have been certainly didn't go as i was stipulated that he didn't do that was stipulated that he said that would or i certainly can't that's by saying ecuador that i don't know how you i don't know how no matter what he said about that painted flag when he stepped believes that he did make a verbal claim  i don't know what effect that the fact that he pointed to to the flag what effect it has unless that could be viewed as flying the flag one could argue in another case if he'd identified colombia in another piece i don't doubt that this case but not this case certainly when the master says ecuador the coast guard cannot be acting certainly not in bad faith and not improperly in any way by taking the master at his word the master makes a claim he identified his flag claim if any the stipulation is made a possible flag claim that's in paragraph seven of the stipulation so to the extent there was a flag claim if any it was that would war or at best two contradictory claims if the painted flag alone sufficed but that's not the government's position unless the court has any further questions like the idea of them are questioned in your brief you cite to the first circuit decision in new cheap pena and in that case as i understand it the coast guard believed that the master of the vessel had claimed colombian nationality and then later the defendant's move to dismiss and they said no actually the master made a claim of venezuelan nationality and the government introduced a certification from venezuela to supplement the record do you know why anything like that wasn't done here what the government might do by running by checking with multiple countries perhaps in that case what can't be in the mind of what was done in that case the government was trying to be make its best diplomatic effort but the statute is clear that you cannot make two two claims if you make two claims you're stateless so well that was an assertion an asse n that there was an iranian sql aim it wasn't two claims it was a it was a dispute about what the master had actually said well in this case we're talking about one incident there at the time he's got the painted flag and he identifies it as a door and and the reason the government you know whether that was making a claim of nationality in this record the stipulation is that he did not make a claim of nationality and that he made a possible flood claim so the government taking him at his word and in the interest of diplomatic comedy because we want the purpose of all these of the of the end is you know your vessel nationally the vessel the entire scheme as this court has recognized is diplomatic comedy to make sure we're not stepping on the prior interests of another country who may have an interest in a space and here you have a colombian flag painted on the side of a vessel and columbia because you cannot make two claims and when he says whatever be valued the painted flag has in their mind th ecuadoran or it's multiple claims which would render him stateless and the coast guard could stop right there but that argument depends on your interpretation that a painted flag is not a flag because you told me earlier if he was actually flying a flag and misidentified it then that would be a different case no i don't think that i don't think it does your honor because whatever value the painted flag has whether it counts or doesn't count in either case it's trumped by the master's words if you had said nothing we could have we would then have to be in two different situations of whether a painted flag counted if it's flying we've got a clear flying the flag claim and then you have to decide whether his words trump the coastguard subjective interpretation of what flag is up it's flying but in this case whether the painted flag counted or whether the painted flag doesn't count his words trumped whatever it was in their subjective interpretation of which of two ambiguous flags it was but that's true only if the painted flag was not flying a flag under the decided as to say that painted flags not flying that is one quick way of answering it or you could or this court could rule that distort his words trump in either case he made no colombian flag claim and therefore the government should trust anything we ought to look at other than a good reputable dictionary said and determining what flying means is there anything in you know maritime you know practice custom what what the shipping industry does what navies do that we are going to regard as especially authoritative i don't think the court would have to i mean we but the what the government cited in its brief other statutes where congress has used has distinguished it has used the word flying in certain instances displaying in others and those those are two different words that can refer to two different ways no flying is one way to display a flag but congress has used different words in different situations but i think that the court could plain language of the statute it's sufficient i think to resolve this case thank you  five six and seven shows that in that document the words sailing on the flag and flying the flag are use interest handedly so i think that the answer to your question about other documents or other sources that this court might consult but speak directly to the point the government made the government's argument i believe is entirely foreclosed by what it stipulated already and that stipulation is that mr mero did not make a verbal claim of nationality and thus his miss identification of the club mia flag as ecuadorian i believe is of no moment given the agreements the parties have already made a second point that i think bears mentioning there no principal reason why a flying flag should be materially different then a painted flag especially as this case bears out as you'll see your honor from the stipulation the vessel that we're talking about is not a large sail boat with a mast such that a flag streaming from that mass would be visible from miles away this was a small outboard twin engine boat in the penguin style which appears from the stipulation to be  about three feet high so practically there's no way that you could stream a flag such that that display would be be any more noticeable  as far as the distinction between canadian vs colombian that came up in the government's presentation what we have here is a situation where it was certainly known to the coast guard that the vessel on the flag was only of one country it was not a case of confusion notwithstanding the fact that the coast guard had knowledge they just simply opted not to contact the proper flag state