believe equitably equity and in fairness these equitable equitable principles have been the foundation of maritime law for centuries and in this country and even before and substantive issue in the case which is whether the point his claim was barred by latches but they also are more deeply involved in the district judge's decision about setting the deadline for when world fuel was required to respond to that issue in order to set the stage if you will because the equitable issues so fact intensive i'd like to spend a few minutes just describing the context in which these issues arose maybe you can explain why you waited three weeks to arrest the nassau and why you arrested the selection six hours before we're supposed to leave the port i think that's that's critical to what the district judge explained not the way well initially normally at least in my experience  judge the claimant would would wait and not incur the expense let the put the vessel get in port talk to the vessel owner try to reach some kind of settlement accommodation before the vessel is actually arrested  when we initially filed the lawsuit we thought the vessel was going directly to a local court or a berth within the river to load and after filing the lawsuit we learned that that was not the case and that the vessel was going to be around for a while my client was in discussions with the ship owners lawyer in london who were talking about trying to resolve the case and indicated that look don't the lawyer the london lawyer for the owner suggested that we hold off we not take any action that may jeopardize settlement discussions once we learned that the vessel was going to be delayed in new orleans and not wanting to jeopardize those discussions my client asked maybe since the lawsuit had already been filed if we could put the record under seal so that the owner would not learn hey they filed a lawsuit and get aggravated by that fact and possibly jeopardize the settlement discussions so that was that was the reason for the timing of when we filed the suit and also largely driving the decision on when the s t or when the when the the warrant for arrest was ultimately requested to be served so the vessel schedule combined with the with the my client's efforts to try to get a settlement of the claim before incurring the expense of vessel of rest those are the reasons your honor i would suggest though that while those may have you know those factors were raised in the judge's mind by counsel for the ship owner they really don't bear on the la issues the question of latches of you know the timing of when we brought the suit and and you know i mean that that's one of the factors in the latch is issue but but for thirty five years and there are many times when we withhold service until the attorney instructs the marshal to go forward it costs a client about a thousand dollars a day to maintain a vessel under arrest between the insurance costs the marshals etc so it's a costly proposition and if an accommodation or a settlement or substitute security can be arranged before that happens then the clients prefer that and try to do that so i would suggest your honor is that that's the reason why we wait it there is an email in the record from from the london council that we were first to in our papers that specifically says we're reverting with our client you know please don't take any adverse steps while we try to reach some kind of resolution so there was nothing nefarious or sinister it was simply an effort to try to get the case started old before hand and then again we believe that bug was put in the district judges a year by counsel in his in his argument at the hearing on on that friday morning but it really doesn't bear on the issue of latches which involves essentially whether there was a delay in bringing the suit whether that delay was excusable and we have any kind of your addiction problem the court in this case the vessel as has departed as to can we continue to the gate there's i don't know at that time we obviously the district court did have jurisdiction and that jurisdiction continues on even through this court now that the district judge's decision to vacate the arrest creates a very serious practical problem for my client in the sense that u s law gives suppliers of necessaries like world fuel a special lean right a special protected right in the vessel to which it supplies bunkers and and now with the vacating of that arrest we've continued to got to track that vessel and hope that it comes back the the vessel comes back here because the only way to enforce a judgment against the vessel would be to grab the vessel work is doing charter party disputes and cargo subrogation recoveries on behalf of cargo loaners against ship owners in thirty five years and i don't know how many arrests or threaten the ross there  been two instances that i've been involved in directly where the owner of the ship did not post security for the claim litigate the claim to resolution or settle it and while all that is happening you know the security either a letter of undertaking from its insurance company or a bond or in some cases cash of financially up front ship owner will post that security litigate the issues and in the ship meanwhile is off trading it's not you know it's not a big deal that didn't that didn't happen here for whatever reason this owner  did not put up security so that these issues could be resolved what would be in a normal course of litigation and again we don't know the reasons its decision but we feel that i mean there was evidence that we talked about in our brief about the delay and the reason for the delay and whether there was any gist of that which was in the record as of the friday morning hearing was that the vessel had not been back to the u s prior to prior to the time we sold we arrested it in other words we supplied the bunkers at the end of two thousand and twelve we sought payment from the time charter of the vessel who ordered the bunkers we got some payments on other invoices that were outstanding but from that time in two thousand and twelve until december of two thousand and sixteen that vessel had never returned to the united states twenty were the bunkers it was a time charter so the vessel owner represented by mr davis time chartered the vessel to a company called denmark under that charter party denmark  had the obligation to buy the the bunkers it was that time charter that became insolvent and based on on world fuel experience in those look with a sion proceedings overseas thought that was a dry hole they have the legal right under their contract in the u s law to pursue the lien against the vessel and  and that's that's what they did they they diligently tracked the vessel and when she came to the united states the first opportunity they had they perfected their only right up there was a t r o to that it all started with the owner filing a motion for a t r o in the interim period before the vessel was actually arrested the only issue that they were arguing was that invoice had been paid it was not until thursday night before the friday morning hearing that the latches issue was raised to the cork and brief leaving us no time by the friday morning voicemail when he called me back he was at the philadelphia airport making a connection to baltimore to serve naval reserve duty my client is a commander an operations officer with his unit and he was unknown to me at the time of the hearing scheduled to serve his drill duty weekend in baltimore maryland this weekend so we did what we could i was able to talk to him a couple of times during the course of the weekend but he did not have any time to help me with his affidavit helped me get documents you will see in the response we filed fifteen minutes after the judge issued the order that there are there's a great deal of information that we had to synthesize that he had to get first synthesis synthesised and put together in an affidavit to respond to that latches motion the other thing that i would point out first thing monday morning i was on the horn with the judge spoke to his clerk about the situation and while the judge did give us an additional two hours to get the brief in until eleven o'clock it was just impossible given the amount of information throughout that morning up until one fifty nine pm on monday afternoon i e mailed the judge's clerk and said my client has the final draft and i'm going to have it back shortly to file that was at one fifty nine fifteen minutes later the judge signed the you order we think under under these circumstances where where the client was unavailable to provide the response that it was it was frankly an abuse to give us such limited time when when my guy was away on on his duty for for the navy you know civilian employers are required to make reasonable accommodations for these reservists and where you or your time are you using up your rebuttal i will your honor but i will leave it there and reserve my time whatever i have  order that the charter of this vessel the one who purchased the bunkers the one who contracted with world fuels sent two payments to world fuels and followed within hours i think by email saying these payments issue which the judge made very clear in his in his in his in the hearing on january sixth i know counsel just said that we don't know the reasons for judging clarke's decision i can read from the tran very clear that if you vacated the arrest it would be on the basis of latches and specifically on the fact that the walk through walls had not shown a legitimate reason first a lay of four plus years in exercising its ruling from this record documents four zero six this is the court at the january sixth hearing well i guess what i'm looking for i will give you a chance to i guess i'll have to give you a chance to do this is the course of conduct and again i'm accepting for the sake of argument that it's a three year period the course of conduct it seems to me that there is nothing in the record that indicates any type of attempt to pursue the claim not so much the vessel i mean i realize you're asserting a claim the lien on the vessel security for the claim to get the claim paid but there are certainly this is important there are certainly other avenues to take even if it's just demand a negotiation and whatnot but i need to see that there is some i'd like to see if there's some course of conduct even if this is a stream of communication and that three year period that would show that they're not on i'm sorry that they're on notice that the claim exists and your client is asserting a claim even if it's a disputed claim rather than just sitting on their rights for over three years and nothing happened and later in the hearing the court specifically asked for additional briefing on the reasons for the four year delay in asserting the claim in the u s he says mr the again this is a court mr fay candidly admitted that he had not had time to respond  latter's argument so i want him since i find that argument to have some appeal i'd like to give me opportunity to respond to it and i asked several questions about it did it today and he said he needed to look into a few things and there might be more evidence of what his client was doing during this three year period course of conduct over the course of the interview an intervening three year period and when he was ready to make his ruling on monday and he made it very clear in the january sixth hearing that he would make a ruling on monday earlier in the day if possible he was very  exercise of jurisdiction to set and in force briefing schedules and to issue ruly for eth orders vacating arrest there's no question that all of these issues everything that's race in this field is committed to the sound discretion of the district court  it's an it's an adult court sitting an adult the exercising equitable authority and so so what we're left with is world feel now saying well put everything that happened in the district court was unfair he says it's unfair that i only got from until monday to oppose a motion that was filed on thursday he says we waited for twenty one or twenty four twenty six days depending on when you start counting the rest of us so because we were saving a thousand dollars a day by doing it and it's unfair that having waited that long the judge didn't give us an extra few weeks to brief these issues it's been represented on the transcript to the district court and there's a motion currently pending in front of the district court for recovery of damages that while they claim they were saving a thousand dollars a day by waiting every day the vessel was incurring twenty seven thousand dollars a day in l es when it was detained after it was ready to sale but this was under arrest so if we're going to talk about equity and fairness twenty seven thousand yes your honor that's the number that was it was offered to the district judge as i said there's a motion pending right now that's not in the record because it was filed it's been filed since then i don't know the exact quantum it was about a four day delay and i don't know that that twenty seven thousand there may have been adjustments to that but that was a rough figure represented to the court if we're going to talk about equity in it for them the vessel at that point was losing charter hire it was it was placed off higher by its charters it was incurring additional expenses because it was sitting in port when it was ready in all  was submitted fifteen minutes or an hour or so after the court ruled really the funny thing about it is that it didn't actually address any of the court's questions the court said during the hearing that it wanted evidence of a course of conduct it was aware of one communication in may of two thousand and fifteen one communication over three years in which they said hey we've got this claim against your vessel and we're going to take whatever legal rights we have the judge made clear in the hearing that wasn't sufficient he wanted to see actors efforts to to assert the claim to press the claim and they said well judge we were we were monitoring we've been constantly monitoring and w years he didn't point to a single other communication in that three year period or to a single other step they took to try and sort their claim so i would suggest that if mr reilly's affidavit had been received before the judge issued his ruling which on the issue of timing the extension was given until eleven o'clock that morning the order was issued at about two fifteen so there were several hours in which there was no extension pending the court could rule at any time but i would suggest that if the matter even after the ship i do think so you know yes judge i do think that there's there's appellate jurisdiction to review the order vacating the arrest there are issues of whether it would be a useless judgment  we had a brief that because it just really didn't come up in the course of the briefing i do think there are certainly issues that whether the district court could issue any release at this point there's a there's a complaint that's been made that while they were waiting because they had to wait for the vessel to return to the u s first of all it's a little bit of a it's not the right word return to the u s the vessel had never been to the u s this delivery of bunkers was done this was a singapore company world fuels delivering bunkers in singapore to all liberians are still chartered by a german company they weren't waiting for a return to return to the u s they're waiting for it to come to the u s for the first time it's become very fashionable for bunker suppliers to specify in their terms and conditions that u s law governs issue with a maritime wing and frankly that's because u s law is the most favorable of any country in the world for a maritime wing claim necessary suppliers but to suggest that they were somehow prejudice because our vessel never came to the united states when there was no reasonable expectation it would ever come to the united states is a little bit disingenuous they suggested that been made that they can't be guilty of latches because they arrested the vessel the first time it pulled into a u s port and the primary authority for that in this was a page thirty nine of warfield's brief and address again in fourteen of the reply the very next paragraph from the ryan walsh decision this is a nine thirty several supplement to ten believe it pages to fifteen to sixteen the very next paragraph which responds to the argument that they make on however it is clear that the question before this court is whether under all the circumstances the plaintiff the lane filing suit was reasonable under particular factual circumstances it may be reasonable for a plaintiff to wait until the vessel reaches the united states before resting that circumstances here where a foreign claimant supplies bunker's in a foreign country to a foreign vessels on the instructions of a foreign charter it's it's they shouldn't have any benefit of well we get one chance in the u have it's perfectly reasonable to expect that world fuels could follow it into foreign waters to assert its claim we've mentioned in our brief several countries i think there are forty two opportunities that we've cited and this is their burden at really on a case that a singapore court and this was based on expert testimony presented in that case the eastern district included and this court affirmed on appeal that a singapore court what applies to us choice of claim certainly they could have started in singapore where they're from they had twelve opportunities to do that they didn't the best of us i'm sorry could they have yes we believe they could have i can't speak  want to try and settle it and so we held back and we didn't serve that morning they don't mention that when they got the warrant of arrest and in australia it was the fourth time the vessel to bend australia since these bunkers were supplied so any of the three times proceeding that they also could have got to want to rest they didn't so again we think if taking into consideration the district court the the ability to rest in any of the other jurisdictions that shipowner mentioned in his brief we submit it in our appendix summaries of the reasons why there is no in rem action in any of those jurisdictions and therefore no ability to arrest the vessel to enforce our legal rights there as far as australia we did get a warrant for the arrest at the time there was a court decision pending that allowed it but that decision was an aberration we are told by australian council and the decision that allowed that arrest upon which we relied for our arrest was ultimately reversed on appeal in addition when we arrested in in australia that's when the ship owner surface with statements from denmark firm former managing director and documents from denmark explaining and describing what the payments were that denmark had made and those documents show that the payments were not for this invoice but the point was the point of mentioning that is the counsel for the ship owner while the vessel was in australia sent those documents and statements to world fuel and threatened world fuel that if they ever showed up in germany they were going to war arrest them criminally made all kinds of personal threats to mr riley at world fuel so once we were given once worldview was given the documentation from denmark alleging that the lien that the invoice had been paid we did not go forward with the arrest but instead investigated whether there was any truth to  two twenty was not part of the record on appeal it is it is it is part of the record on appeal that was filed into the record after the judge's order a motion you filed with our court to try to have additional documents submitted yes one point motion was that well that motion was primarily to try to have before your honor's the e mails that were exchanged between myself and counsel and the court in several respects i mean the judge when when counsel originally filed the motion for the t r o on december thirtieth identifying the single issue of whether the invoice had been paid the judge invited us to respond by email with a brief response so that he could get a handle on what our defense was to the motion for the t r o so and that e mail those e mails did not make it into the record either so you have to david even though the judge never saw it before he ruled it was in the record yes it is your the timing of when this motion came up again we suggest it's very important we were my client i wasn't directly involved but my client was in direct communication with the owners london council trying to reach a settlement so the delay in actually serving the arrest warrant wasn't driven soley by the daily cost as council would would have your honour's believe the primary reason we did not serve that arrest warrant was because we were trying to get the case settled and the emails in the record show that that was the case  one point my client asked me to get involved directly and there's an e mail from me to the london lawyers latest sempre twenty six still trying to elicit some discussions to get the case resolved so to suggest that this was purely a cost saving while that is true it was not the motivating factor here we were trying to get the case settled