not a basis to vacate an award we also recognize the arbitrators we've been arbitrating in front of them for over seven years and we have never challenged to award before well  reasons maybe that you have an agreement that expressly prevents you from bringing an appeal right no your honor i don't believe that it any decision in  the i don't believe your honor that we have taken the position either side is taking the position in this case that that forecloses our rights under the federal arbitration act what does it mean i mean people waive their right to appeal criminal cases and they're enforceable and that's true in almost all circumstances even if and then everest well i don't know that that's even an argument that has been made by my opponent in this matter about share that interpretation certainly wasn't an argument that was made before judge firma what we're challenging is the fact that the arbitration panel has plainly stated that they will not enforce  least two conditions of what we're calling the end use exception both parties and the arbitration panel call it the end use exception these claims are pollution claims that's not disputed there is a pollution exclusion that is binding in covers the matter that is also not disputed the issue in dispute is whether the end use exception applies to reinstate coverage that is otherwise excluded by the pollution exclusion the end you six exception to the pollution exclusion has three conditions the arbitration panel concedes this or has ruled as such and my pony concedes this as well the three conditions are philip dollars liability must arise at the end use of its products also the liability must arise after philip sixty six has relinquished possession of the products and end use or the fact that the products have left there that they transferred the products to rd parties was not herself since and since the pollution was not there at the side of the company that it was site that it was done by someone else who was i didn't use or why i think it was assumed but it should not have been assumed we'd been asking for that information and we were told it was too difficult to provide that's in the panel's record in the panel's award that we were told by philip sixty six that that information about where they transferred it to and when they transferred it was too difficult to provide and we said that maybe so but the conditions of the  require that that information provide be provided a panel did what we feel is fs disregard of the contract by side stepping those conditions saying that there commercially impractical to apply determine that it is not practical or commercial to enforce these conditions and our view is that an end use exception like this with three conditions no matter how difficult to me no matter how difficult to achieve no matter how difficult to establish this is a sophisticated commercial company that signed a contract and has to abide by it for all we know ten years ago or twenty years ago when this policy was entered into the understanding of the parties was that this exception was going to be a very rare thing very difficult to achieve and the arbitration panel said very plainly that it is impractical to require philip sixty six to prove and use that occurs out of its control and off of its property and there is no way to interpret that statement other than that the arbitration panel decided not to apply a contract term that's the only way to interpret nitro that they based on they claim they stand where the claim arose whether pollution or rose that it was self evident that it occurred not on this property by a use exception because it also matters how the product is being used and what the arbitration panel did is they dispensed with that requirement by conflating it with the same requirement as being off of it's property so what the it's specific proof of a transfer away is is unnecessary and impractical to require but also impractical is to require that they prove the end use because it was away from their property i'm sympathetic that it's difficult to establish but this is a contract provision that we agreed to and commercial practicality doesn't weigh on one of the couric war of attrition panel shouldn't force those words mr nasr you have to you have provisions of the contract in a way that you don't like and which maybe isn't even the best but nonetheless is enough to support affirming the war my time as a medic quickly respond to th if it was just a matter as i begun if it was just a matter of our disagreeing with the interpretation of the contract we would not be here it's because the arbitration panel specifically said it is commercially unreasonable use language it did not interpret the conditions in the end use exception it decided that phillip sixty six would not need to meet that burden it's undisputed on the record and he can ask my opponent he w knowledge that there is no evidence in the record on end use he can't point to any he didn't have to provide it because the arbitration panel relieved him of that obligation that's not interpreted in a contract that arbitration award should be affirmed because the arbitration panel did not rewrite the pollution exclusion and the panel did not base its decision on public policy alone as judge sullivan just pointed out and finally in our view correctly interpreted the exception to the pollution exclusion based on the evidence that was presented to it in phase three of this eight year long arbitration proceeding most fundamentally our view is that  is wholly unable to satisfy the extremely high standard that applies to efforts to vacate awards under the federal arbitration act then what the standard really boils down to is did the arbitration panel have the authority to decide that issue that is being challenged and also whether they did so in a way that paid attention to the terms of the contract they were interpreted and applied them in the best way they thought was proper there is no dispute here but the tribunal here had the authorities side this issue both the arbitration agreement and the terms of reference specifically identified interpretation of the blended pollution endorsement as one of the issues the arbitrators needed to decide with respect to the under applying claims as to the manifest disregard of the policies terms argument the girlie has made the panel determined based on the evidence presented to it and i think it's important to emphasize that the only party that presented any evidence in phase three of the of this arbitration was tasco which is philips predecessor both factual and expert darling presented no evidence of any kind and also chose not to cross examine any of our witnesses so the record presented to the arbitrators in phase three is an rebutted and unchallenged and that is what the decision is based on and they found that the x exception to the exclusion was met by the proof that we presented on behalf of tosca and that's why they will just they did girlies appeal in essence really amounts to a disagreement that the exception to the exclusion was misinterpreted and interpreted too broadly one that was issued by the panel in june of two thousand and thirteen when the when the arbitrators made guidance for the rest of the arbitration proceeding and how evidence needed to be presented and in that process the panel did decide that there were three elements of proof we needed to fall within the exception to the  exclusion point two was that we had pasco had to have released control of its products before the alleged liability event occurred and three that the use occurred away from the premises owned rented or controlled by tasco as to the end use prong judge so fear on behalf of the panel wrote and this is a quote and use includes the full range of end uses of the completed product prend m t b e treated gasoline close friend was reject the argument that the only and use that applied to toss goes product and t v e gasoline was that it had to be used in an automobile by and by by a driver of some sort our point was that end use for tasco is anything that occurs after tasco releases the product into the stream of commerce and no longer has control over it or the ability to to say what is done with that product and the panel accepted that argument now girlie may not like the argument and might not like the decision on that issue but that does not absolve them or provide them a basis under the arbitration act to seek of a creature award that is worth i'm s usenet that interpretation makes the meeting of that prove self evident it does and we also also in this record and i do not have specific a cite for you but one of the things that distinguishes tasco from an entity like exxon or shell is the way they operated the business at the time that this these claims arose pasco was a merchant refiner they didn't have a network of retail gas stations through which they sold their product they sold their product to wholesalers and wholesalers then sold the product directly to retail outlets so tasco released control of its product at least two steps away factually from when the alleged releases occurred that led to these claims for liability so your honor and as in a sense it is self evident that tasco had relinquished control and that the end use of its product had terminated as far as tasco was concerned and finally that all of these events occurred on property that was neither owned rented or controlled by tasco that evidence has been in the record through all three phases of this arbitration it has not been challenged by girling either factually or through essentially what girling is arguing is an effort to challenge the panel's interpretation of the contract and judge sullivan as you said before in the portions of the opinion they cite to judge so fear on behalf of the is simply walking through the language of the exclusion to the exception to the exclusion yet i'm sorry and in doing so speaks to certain facts and on the public policy point as judge berman also correctly noted he was just referencing that as further support for the decision he reached based on the panel's interpretation of the language of the exception to the exclusion so for those reasons your honor phillips sixty previously moved and of may additional noise about sanctions and i'm you didn't say anything today about that and i guess i'm curious you still think this is san that the that motion was denied without prejudice so i thought it was off the docket for today but our view is that given that the extremely high standard for this type of relief that is being sought there are green manifest error you're saying that there is no way they could honestly believe that this was merely manifest that this was manifest error as opposed to just a different interpretation i think that's absolutely what we're saying if you read order number one in the record and then you read the rd partial final award authored by the panel that's collectively about one hundred and fifty pages of analysis and most of it deals with analyzing and parsing the words of the pollution exclusion and the exceptions that exclusion we don't think that there is a good faith basis to argue other than you might disagree with the decision that they reached but to say that this panel disregarded the contract and didn't apply it scrupulous as they have for eight years i think is unfair to the arbitrators and we do think it is this is that they've conflated or equalised and use and off of their own property those are three there are three separate conditions under the end use exception and use is a distinct condition separate from being away from philip sixty six is property and what phillip sixty six is saying in with the arbitration panel did was equate the two of them but they are expressly different conditions what the arbitration panel has said is that in effect we're not going to apply and use we're going to say as your honour's have said it's self evident that it was and used merely because it left philip sixty six  possession but that's not a proper ruling and it seems like this really turns on the panel's interpretation of the term and use which is very broad and makes it not a heavy lift to prove but that's really an interpretation proving and you see your satisfaction what would they have to sell in this particular case with m t b losses so with care saline sold to many people it would be difficult agreed but the policy wasn't written thinking about this loss if it was one large loss to one person who they sold to which would have been within the contemplation of the parties when they wrote policy that it would be very easy to prove how it's gasoline was use well what the panel is saying is under the circumstances of this particular claim it's too difficult for philip sixty six to meet the burden that's because it went from t retailers as counsel explained to us a moment ago and the retailers well were there were many of them and they from the retailers so the ultimate end user the car driving