i'm going to address a couple things mr simms just said that are applicable generally and then take a step back and move on to the provided piece and first think one other attorney perhaps mr power use the term commission you know commissions there's no brokerage at stake in any of these cases these are contracts of purchase and sale the as mr simms mentioned earlier in the in the going the order of your terms and condition conditions call for payment without set off or deduction the o w physical suppliers are entitled to full payment  and so on down the line the problem here and what makes these cases different in the maritime area but not so different from other areas where you have had a massive overnight collapse of a corporation here the music stopped and the music stopped on november seventh bills weren't paid physical suppliers weren't paid banks weren't paid etc so ins particularly when it comes in a freefall is a very messy thing and all of these parties have rights against their contractual counter parties up the chain and the bank against its borrowers in their various in service insolvency proceedings worldwide so there's no talk of commissions these are contracts these are unpaid parties where people have claims and bankruptcy my administrative claim under section five zero three nine so there are the parties have done this and the physical suppliers of also proceeded as we know now against non debtor vessels but couple things there actually been two trials here one was barclays one was martin the district court in martin did entertain and reject the l four arguments i don't believe because i just looked that imagine in the in the eleventh circuit opinion but they were rejected below martin martin is not a rule see case it's not an arrest case it's a case where physical supplier seized a ship attached to a ship under rule be a sister ship of the ship to which the bankers were supplied so there was no raise before the court against which a lien could attach in connection with the summary judgment market  motion argument and in that case judge hankel indicated that he would look at the lien law to guide him on the equities but ultimately he ended up a ruling that there could be multiple liens something no court in the united states construing kembla has ever done before in fact the the concept of stricter jurists the concept of uniformity under maritime law and numerous cases explain that these statutes are strictly construed to avoid a multiplicity of lanes so we argue that one april that thirteenth before the eleventh circuit and i expect the result might be different and i think i'll just leave martin there also martin turned largely on issues of florida contract and crazy contract law which is somewhat different than an arguments that are made in the unjust enrichment  concept that there was some requirement of risk which was not briefed or the concept that was briefed but not decided that somehow a contract supplier had to show person supply necessaries to a vessel on the order of the owner or person authorised by owner if as in all of these cases the fuel got aboard the provision had taken place that was it was undisputed in every case except this and pretty much every other case that you look at what happened here and where judge forrest incredibly complicated a simple concept is that the question really isn't who put it on but who put it on the order of the owner and so there's no question in these cases that the fuel was pumped aboard the ship that's the provision but judge judge forrest added this new requirement for providing that you beyond risk never before seen in any jurisprudence anywhere and what the parties did brief that you know that for a contract supplier such as o w middle east or o w malta to have a lien it must first pay its subcontractors that was briefed extensively and our position was that would create one a multiplicity of l and add a temporal concept to the concept of provided that didn't exist before the lien arises when the goods are provided to the ship of the the providers are exxon mobil right i'm sorry providers are not exxon mobil they're not shell they're not major international corporations that produce chemical products that become diesel fuel are they the providers  his mr sims as clients are people who have relationships with other companies that produce and manufacture fuel oil or diesel fuel right but the bunker space is a specialty space some of the big oil majors are in it some more are not clients are not that his clients are not them new star for instance is a very big company if martin is a very big company if the chargers had had directly ordered it from mr simms as clients then judge force requirement would be is that they do his clients would have a lien until they had shown that they had paid whomever they bought the few product from when to give you a headache it gives me a headache but that's exactly what she did was not she said that you didn't have a lien because you couldn't show that you had any financial risk yes because you hadn't paid anything and she said in a footnote had you paid the suppliers it might be different i think that's part of the evidentiary nature of her decision however she doesn't explain it had the parties been paid to me to give her an opportunity to  two of the three physical groups of physical suppliers in this group of cases and pointing out that i think it's crazy it doesn't make sense so you could go down the chain there are there beautician companies my file i was raised in the oil industry my father worked for an oil company there are distributors who are who are independent contractors of other distributors along the broad chain of distribution of petroleum products throughout the country and the manufacturers and their refiners and so what would we do we chase the product all the way back to its region asia is that what we would do i don't think so i would be very complicated as it doesn't require the statue disposed to be simple and provide predictability to vessel owners and material it doesn't say and and the provider having paid for the product it just says provide right that's that's correct and in this case in two of the three cases that are going right now the physical suppliers were paid the judge didn't recogni that but i think that that's irrelevant and you shouldn't trouble yourself with at least as far as i'm concerned but i do think when she said that the case might have been different she was saying that from an evidentiary point of view then i'd have my proof i think that's what she's saying charters in front of the she did she she had the sales or the contract right is of use of item property in there and has a risk with her failure to perform absolutely absolutely but i think just just to kind of go back a little bit with with the with the history you know this was used to be simpler a ship would pull up to appear the master or the chief officer who are cloaked with authority under the statute would say feller  up and that would be it and now we have this contract change it's more complicated but the law is the same and and just go back to those three requirements you know and it turns on the order of the owner a person authorized by the owner of the parties here that that fill the bill are the o w entities and not the physical suppliers as every court accept martin has found although martin gave  and then the court granted sue respond to on an issue that are not been briefed hour after deciding the case on an issue that had not been briefed for the vessel owners and again you know rejected out of hand the motion for argument and so we believe on on that basis this decision should reverse i think the material that you put in on reconsideration your mind and if we are dodging the best way of looking at this is relevant at all i mean or did you satisfy your burden by showing we have a contract with the charter and this and then the fuel oil ended up on the ship we satisfied our burden assemble the contractual chain we did that put it in and it was rejected as simply very argument yes and so the think that the contract for trying has any relevance to if it's the contract supplier gets the lien if they took the order and the physical supplier does not unless there's a chain of agency agreements or there's some selection by the owner of the subcontractor period that's what all the the cases say that's what this case should say as well and if i could just talk a moment about fraud about mr power and his arguments in this is true to the arguments and the jew war case say that without in two of the three cases pleading it out all that based on a trustees report that indicated that the board of directors of o w in october of two thousand and fourteen determine that they might need it or that they would defer payments to suppliers  while you know on the brink of insolvency that this is somehow fraud in a footnote implicates that somehow the bank was involved in it and that the lien claims should be rejected as being in bad fa this argument is a red herring mr power his clients are a pelleas in this case this was not addressed by the court below the implication on our client was involved in some wrongdoing as opposed to the simple financial distress of a big company is wrongful and the fact is that financial distress is not fraud that's the countrywide case the fact that a company's in trouble decided to deduct deferred payments on but that happens in every country company that ever went bankrupt ever so this innuendo and argument about there was fraud in the singapore affiliate  that's what caused the losses that brought the company down almost overnight and people in singapore and i can't remember exactly who did go to jail mr power in his brief says the c e o in the c f l were indicted but neglected to say even though it happened before his brief was filed is that they were cleared the trustees report focuses on derivatives trading and what happened in singapore it does reference that the company was looking to d it's a red herring it should be rejected thank you suggested that some of that line of credit was drawn down i don't think the air is a city that disputed well what i'm getting to is we don't have o w here we don't have the contract party to every one of these  police or the the purchase of the fuel or they're not here they're not sitting at the table who's arguing on that we have is i and j what i think is very important in was a bank that had a facility that was financing this used to purchase fuel to go on any of these vessels that's the irony here what you have an irony but it's an irrelevant it's not irrelevant because what we have is if we're looking at who did what wrong and why judge force was correct i mean this is we're just talking about it commercial talking about judge forces ruling which were which was appealed our suggestion as the vessel owners is that the results are one hundred percent correct that considerations involving the express language and the context when you look at it in the scenario of the statute which is the only way you can get a lien so judge force clearly determent which is the correct result that you have to be a good faith provider of necessaries in order to get a lien so the question is just not what is a provider the question is what is the question what is a good faith provider are you are you sure and me that he said those exact words i can legislative history surrounding symbol and its precedents press predecessor statutes confirm that its purpose is to facilitate maritime commerce by protecting terminal operators ship chandler's ship expecting to be paid good it's the good faith isn't had nothing to do with expecting to be paid so for example if you on the eve knowing that they were insolvent they couldn't pay anyone made a mad rush to lien where they shouldn't have been gauged in business to begin with that is not supplying necessaries in good faith and did your folks at their bunkers did you get the bunkers the owners did not get anything charterers got the bunkers i mean make it make it clear did your ship did the ships get the bunkers that they ordered bunkers were delivered to the vessels makes sense that somebody ought to be paid yes well it does but but the question is not whether or not should somebody be paid it's whether a maritime lien was created remember there's a contract party that's missing here o w and i n g has every legal right to go after the contract party what we're talking about is liens and that's why these cases are slightly different than the maritime king case where the party who contracted for the fuel all up and paid totally get that because there's a gloss of a bankruptcy over it that's the problem there's not enough there's not enough money to go around  and just because there's not enough money doesn't mean that a lien was created so that's where one has to this has the judge ever decided whether i n g is a legitimate sany no ok and so if we make a decision that says that there is a problem with at least  analysis about the existence and lien i n g still has to go back and prove that its assignment is legitimate doesn't it does it also therefore and so therefore any of i n g s bad acts then become relevant but are completely irrelevant right now are they not remand if the panel looks and feels that that is appropriate for certain reasons that i'm hearing certain limited reasons perhaps i'm just suggesting that if we did if you did yes it would be absolutely necessary however then to address whether or not o w was a good faith provider of necessaries and under the context of the record that's was submitted in the district court you can never be a good face supplier of necessaries if you knew at the time you were entering into a contract that you didn't have the money you wouldn't have the money and you never had a way of paying for that you know for what it was that was not addressed by the district court can't be addressed by us today and so your argument is that if we disagree with your principal arguments we should not reject we should they can't have the district court address all these things in the first instance that's all you're saying that that is all i'm saying but it's certainly that this court who's who's who's here now understanding whether or not judge for was correct in her decision the decision i believe ultimately is correct there was neither party here has a lien it cannot the simplest simply was not created to reward someone with a lien that's not to say they can't have a contractual right against their counterpart or to go try to get whatever money they can but they cannot go after in a strict liability context and try to get payment from a vessel owner who had who wasn't in privity and based on based on again addressing with respect to judge forces decision here is when when judge force suggested that i don't understand why he wasn't out of pocket i don't understand the print the reference to privatize i and she would have to establish if this were to get back presumption that it was an authorized asia so there are cases recently again that's why if it no owner would allow a charge or or give presume permission to purchase fuel from someone who is going to cause all these the whole good faith provider of necessaries if you try to sell and deliver to the vessel fuel that was incredibly off spec bad it knew it would hurt the vessel and under their contract all the terms the exculpatory because exculpatory clauses say we're not liable you can't set off you're going to sue us later we want no matter what you have to pay us and then you can litigate whether the fuel was proper wasn't proper but at the same time think about it they would say because we delivered this junk this auspex fuel to the vessel if you don't pay us in accordance with the timeframe that we set our invoices we suddenly now have a lien against the vessel and the vessel says wait a second don't trip to figure all this out which is why while if it makes a difference because the statute requires it so you have to assess now most circumstances there is no indication and nobody you know these things thousands and hundreds of thousands the transactions go on without incident this one happened while there i don't know if you need a trial i think it's certainly admitted i think the judge can take judicial notice of this that at the time every one of these contracts was entered into to supply the fuel it was insolvent it couldn't it wouldn't and it had no ability ever to pay payment to the physical suppliers at that point in time if you go into a contract knowing that this was essentially a an abomination of similar in the sense that they can get a lien we're only talking about the lien they're still going to have a chance to go and recover under contract from the charters to the extent the charges haven't already paid but under no circumstances on the facts of this case is o w should should over w be a title to a lien and that's all we're provided necessaries to a vessel upon the order of the owner it cetera et cetera what difference should it make you know whether i had my fingers crossed behind my back or whether i was expecting because because the lean that's granted here is such an extreme remedy that is found nowhere else that you have to come to this contract and to this statutory elements of made what difference does intention if you saturate on that are met because part of it includes you have to look at a good faith you have to look at to tell you the circumstances and you're saying that the good faith you're complaining about here is they entered into the syringe meant knowing they were going to stiff their subcontractors they would not get the oil they were not a good faith provider they might have been a provider under the definition loosely under the under under the statute but they were not a good faith provider so they can be entitled to payment from their contract party they're just not entitle them to statute to a lien reminds me to ordinary remedy so you can be paid for you we were never retired required to pay for the we are the vessel owners we didn't we didn't contract for it but in sept many of these cases the charters have paid and they've wanted to pay and in other cases there's litigation going on between the charterers and in o w i and you were ever all over the world results in strict liability to a party that had nothing to do with the contract  law applies to any lien claim by the o w entity and by virtue of the alleged assignment i n g this is an issue that we explicitly reserved before the district court judge forrest and at footnote district court and it's inappropriate for i n g to first kind of come in and attempt to obtain a full stop growing that u s law applies to its leaning claims at this time now for sake of clarity we recognize that the courts in the fourth night and fifth circuit have upheld the various similar us choice of law causes in bunker contracts like the one that i enjoy the purports to be exercising here but frankly with due respect to those circuits in our view those cases are wrongly decided and in any event they are directly contradicted by this circuit's previously ruling previous ruling in rainbow line in addition as i heard mr judge wesley state earlier there's also an issue of the validity of i n g s assignment and to the extent that this court remands judge force decision and it goes back down district court that is not another issue that needs to be decided and is best left to the district court the first instance so i think the takeaway to that is that it remained here does not and should not result in a full stop ruling that i n g possesses a lien under similar that said in our view the dish of course opinion should be affirmed and i'd like to just refocus the panel a little bit as to what today there are three requirements to simla this provide necessaries to the vessel on the order of the owner or party authorized by the owner and here the issue is the first prong is provide necessaries this is completely distinct from the issue in the physical supplier appeals mr simms argued earlier where it is the third prong that they provide be provided on the order of a party with the authority to buy the vessel now judge forrest did not create any new wall here she did not you know inject any requirement into someone as she clearly stated  this is page a seventy two of the opinion the term providing may compas a direct contractual relationship with the entity physically supplying the bumpers where there is a promise to make payment for the bunkers and if you look at all  cases that i n g cites in support of its position that generally speaking contract suppliers are entitled to liens in all of those cases they were in direct the contract supplier was in direct with the physical supplier and the physical supplier was paid here in those cases it gail had and exxon and the dan bunkering case and that is simply not the case here here you have which the alleged assignee of middle east and which is claiming a lien of in excess of four hundred twenty two thousand dollars while at the same time saying that the physical they have not paid the physical supplier and that they have no intention on repeating payment downstream so when does the lena rise does the general contractor subcontracts performance have to wait until he's paid all the people down the chain before he has a maritime lien not necessarily on it i think in this instance it's appropriate to look at events after the supply occurred and here you have i n g who is saying that they have no intention to your remit any payment and her her reasoning is that i and she's not going to pay the people that supplied the things she says because a there's not a contract because they did they didn't supply the contractual provisions which concerns me because nobody raised that and she comes up with this theory that nobody argued and threw a sponsor without notice to the parties and makes that pivot about which to rule against i n g doesn't sound like anybody had a chance to really think about this and argue it to her and second of all because in fact that they're not going to be able to pay because they're bankrupt and therefore it defeats the purpose of the of the lane statute well bankruptcy's do change things but i don't think that the statute has a specific provision that says if you go bankrupt these provisions do not apply to someone  authorized and does provide necessary even though they're going to stiff the suppliers i think that's the that's the fact of life with regard to bankruptcy in response that i mean this is not a situation where i n g is is completely left without a remedy of obtaining payment they have the contractual claim you're making arguments that are bankruptcy arguments the question is is serious or not only are the provisions of the statute clear and and are and do they apply to this situation the fact that that o m w might have trouble paying the people for whom the lien is ultimately supposed to help i don't think changes the sec how does it change the statute so when you what what the judge for seems to have been grafted is a statute it does in body some ships they did the ships that the physical ships did they get the book yes or of the ships and who did the charters contract with that with regard to getting the bunkers in this instance o w right yes or out of the site so who so then tell me this in simple english who provided the bunkers in if you were talking to a friend who's not a lawyer and you gave them this he or she had this hypothetical what do you think their answer would be that o w did when she went to think it was a literal relieving of the statute potentially but with the district court decision and grafted in additional provision well you're only providing if you intend to pay from those whom you bought the bunkers right yes ron i think that's within if you walk in that's in the statute it is within the term provide in the statute yes really so any any any person that contracts to provide something there's a there has to be a pop a warranty that they're financially viable all the time it's not necessarily a as basic as it gets in the commercial world yes or no but you have an instance where you know o w is attempting to exercise the extraordinary remedy of maritime lien let me give you a hypothetical this is not a company it's a person it's an individual who's very credit worthy and the individual agrees to provide the bunkers and then subcontracts down two or three people and ultimately the bankers provided and the suppliers want to be paid the ship hasn't paid yet and the individual dies penniless credit worthy but penniless his estate can't pay a dime if the state has the intention to repair it downstream yet tension is this how we're going to measure leans to the intention the purpose of these lanes is so that when the purpose and i know this is not like the material in saline under the under under state law where authority is irrelevant is just providing the materials to the to the to the work site the purpose of these lanes is that the ships come and go and suppliers don't have anybody but look to to pay the people who are defined as suppliers the providers and so therefore when the ship comes back into port if they haven't been paid they put a lien on the ship that's the purpose yes your honor but you know in this system this instance where everything is appropriate to look at the post apply events where he has no intention to rip the payment downstream but what's the rule what's the rule you want us to articulate so that folks like mr sims who does a lot of this work have a rule to work with into the future that there's a that there's a financial interest test or financial ability test with regard to provision of bunkers are necessary i think your eye can be either the the direct provision of necessaries in the physical supply or  pay for them and not pay for them just the intention to remit payment downstream for them as well you to provide something of value here you have i n g that's simply just pushing papers around the table and wants to use the extraordinary remedy of the maritime wind to obtain you know the full value of invoice where they would have made only two thousand dollars off i and he advanced other people's money  two as a lender under borrowing base facility is secured and it took time to secure its debt whether physical suppliers did not they provided necessaries on thirty days so when mr powers says not one penny goes to these transactions these transactions are part of our client's security and you know the trustees report is a hearsay statement  got a lot of tape showed they intended not to pay they were never going to pay that's not what it says it said they were going to defer payment so whether at the end of the day is going to pay what it gets and who it is obligated with anyone it's obligated to give that money to us is not a question for southern district joe that's correct it's  not decided yet would be but the ultimate upstream the lender group how it gets paid under the credit facility that's not here shortfall here is the little guy the suppliers the suppliers you're do business with somebody and they turn out to be who they've done business with all over the world and then this then they don't get paid and but and funny about how you look at these contracts  retail for which mr sims are you so passionately for and i understand why you know they and i think this is probably the thing that troubled judge forrest she didn't think they were entitled to a lien but she was damned if she was going to g they could have obtained payment you know cash on delivery from the or or letters of credit there are other ways to secure the obligation rather than unsecured credit which is what they extended so while there's some sympathy everybody got burned it's a major  or subsequent sale and mortgaging of that ship in a dispute about the rank in priority of liens and choice of law on the law or it's in fact i wouldn't be preferable to to let the district court address that issue in the first instance the district court can address that