question in this case when your brief didn't address let's assume your right and the terms of his promise by contract to provide the remedy under e u two sixty one why doesn't that going to europe and then pursuing the remedy under either to sixty one that looks like the holding of all of our state and i don't see why a contract promising to provide this remedy get you out of the well the way i  that concern our position would be that the cause of action is for breach of contract which is cause not cognizable in illinois the point is a u s citizen can bring this action in the united states when really plan regulation e u two sixty one refers to a commercial program i just think that means something like a frequent flyer program that's available to the public in any event i would answer that by saying that the regulation uses both of those phrases it uses frequent flier program and uses commercial program those have the state meanings so the argument that this was a commercial program for scuse me that for the flyer program the commercial program doesn't recognize the station between those terms in the statute this was the agreement was called a partner plus agreement which was a contract between us from hell for our planet's employer and a love ponza to provide volume discounts for flights i think that qualifies under the plain terms of commercial program but as i understand it this was not a code sharing flight but it charters flight and so i'm having trouble seeing why article two point three rather than article two point two would apply in any event i mean look turned his condition of carriage drawn a distinction between code sharing and charters your argument as to seems to ignore that distinction intrigue any flight operated by within the contract with and in the definition section of the conditions of carriage but on those conditions of carriage co chair is defined it to mean carriage by air which will be operated by another carrier is indicated in the ticket so based on that plane carrier you two fifty one says he's going to not answer my question the it does not in this case because of ponza was the airline that dealt with the passengers on the ground yes i know but i but a large bird is the airline that screwed up that hurt what does it mean to control if we look to the charter agreement that the parties had where it sets up the terms and conditions of their relationship so for example of hands a could decline approval of flight operations if party's charter agreement but getting back to judge mr brooks a point and i understand this to be a concern is the parties did form a contract that contract incorporated the terms and the the act the cause of action is what is the dispositive here the there's no if there had been there had been a contract for excuse me the cause of action is dispositive an invalid r c the holding was that there is no e u to sixty one direct cause of action in the united states simply because the law itself says that the form is unlimited yes it is that's exactly the basis i understand the concern but again the the the contract is a breach of contract distinct cause of action that can be raised within the united states form if the three things that actually rebooked mr bomb meister on transportation the different flight it paid for his train to go to another airport with a substitute flight would leave also pay for taxi transportation for him to take between the airports  the obligation to rebook to scuse me to provide transportation between airports when they cancel a flight they did that and now that they are asked to pay compensation under the two sixty one they don't want to do that because operant was the operating carrier and that happened in and early in the case and actually before the case filed in the states and at that time it would have been expected to just refile in the ne be against augsburg and obtain the six hundred euros compensation of the easier to sixty want just used internationalism that i didn't understand short of to use normal words were not transportation was specials i'm sorry  claimant the opportunity to either file with a national in foresman board or in the court in the european union and in this case baumeister who was a resident of germany at the time did answer yes is meaningless the we did not argue issue preclusion on this appeal right and is that because german war doesn't provide for preclusion or you just drop the ball statement correct your honor  you now moving forward in the european union has defined an operating carrier and the operating carrier is defined in e u regulation two one one one and it defines it as it means the air carrier that performs or intends to perform a flight under a contract of carriage with a passenger or on behalf of another person legal or natural having a contract of carriage with that passenger and that's what took place here mr by mr had a contract of carriage with love tons of love times ahead a charter agreement with august park augsburg operated the flight and under the e u rules under e c two sixty one only an operating carrier can be liable to pay compensation to the passenger for any delay or cancellation now there's another section of you to use he she c two sixty one which is the care provision and the care provision is very similar to the care provisions that are in lieu of time this contract of provide commendations and provide meals and other incidental requirements a passion or may have associated with a delay in transportation and love tons of has been hiding that is part of that of its conditions of carriage to sixty one the damages are fixed based on the length of the flight so for a long haul flight for example compensation requirements on the e c to sixty one is the equivalent of six hundred because this delayed the connecting flight so does it come into the six hundred euro category because of the delay it would come under the two hundred fifty euro category because it's a short haul flight here and there is a case  reference that says that if you don't measure the damage based on the entire transportation it's based on the sector ok to the basic point which judge easterbrook raised i just want to refer to the specific language in the contract the contract says that in the case of a flight cancellation or flight delay we offer assistance in compensation the current concern passengers according to the european peculation so that the commitment is to pay compensation and the reference to european law does not necessarily mean that the form that the court found involved are so you think the compensation is something other than the two hundred  fifty euros provided by i think it's article seven to sixty one no we did not i mean the compensation is set out by east to sixty one just to sixty or yes ok well thank you