case for argument by some of us versus iberia and mr williams it was the same the same pairing convenient police the court again and the question in this case size the question we've already discussed is whether passengers are entitled to rely on the care conditions of carriage of the airline who then why do we go through this i asked my same question yes and i  front and to that to that point the language there is as a stablished in the european parliament council regulation the compensation is fixed in the event of flight cancellations less the latter is due to extraordinary maybe you can just listen to the recording now it seems to me that your argument essentially cheats co chairing and your line agreements is the same thing that however similar they may look in terms of how a passenger pursues they're just not the same thing to the airlines income of it are they that they are not i mean there is a very technical distinction in the aviation industry i'm sure my opposing counsel can talk all about it but  fury which is from the purpose of perspective passenger it appears to the passenger that be taking airline is acting on the authority of the operating carrier to book a flight the documents in the record  absent each document said that about americans acting as iberia's agent the other three doctors that issue the american conditions of carriage the american foreign tariff iberia's conditions of carriage each say that the ticketing carrier  code sharing arrangement was conditioned on american's agreement to accept responsibility for a flight operated by its co chairing partner doesn't that suggest to you that it is american which has the contractual obligation american has a contractual obligation we're not saying that there is no contract with america and we're also not saying that there's actual authority on the part of iberian america or we are saying is that if you apply the apparent authority principle from this perspective passengers it was reasonable for them to believe that american was acting as iberia's agent and booking a flight and the the district court what it found is that the foreign tariff is the a political document and it got to that by the following analysis first it says that the american conditions of carriage do not apply because they apply only to mr carrot and scuse me only to domestic carriage and then the conditions of carriage direct y to the foreign tariff however if you read through the entire form tariff it tells you that the foreign tariff applies only to flights that are performed by american airlines not flights that are performed by other airlines such as  just different contractual language your work there their opposite situations the i mean there's no question the operating carrier here was iberia there and there aren't the same factual nuances in this case as there  was the operating carrier and you would expect the next thing that would happen would be a claim against drugs for which you never have and i believe if you look at the record the complaint that lufthansa responded to with tons of responded by saying that oswald was the operating carrier but again and this i feel like this is this is obviously the overriding question here whether the delta decision applies to this case the the claim here is that and initially the way we brought these cases was as a breach of contract claim and we allege that there was a breach of contract because the conditions of carriage say you must pay compensation the contractor first to you to see want to determine what compensation is d when compensation is due but it doesn't affect the cause of action for that breach of contract if that concept contract is breached meaning that if the flight is canceled if there is no extraordinary circumstances and if the distance requirements are met then you refer to  to sixty one to determine what compensation is due but the reference to the you to sixty one does not affect the cause of action argue and to the only document that can apply when you read through the entirety of the documents is the iberia conditions of carriage and that's really intuitive i think i think that's the way we would think it would operate if you're flying on an airline you would refer to that airline now what counsel would like the court to believe is that the iberia contract of carriage would apply in this case well the department of transportation has taken a different viewpoint and they in a co chair situation  department of transportation and issued regulations requiring the application of the marketing carrier's conditions of contract and that would be american airlines in this case in addition the four samus is clearly they testified that they clearly intended to contract with american airlines mr parr samus is american airlines frequent flyer and he testified that he went on the american airlines website and he purchased the tickets from american airlines pro this ticket was purchased as an american airlines flight it has an american airlines ticket number therefore it is online and american airlines assumes responsibility is to describe this as in  the term given to a common airline industry marketing practice where by mutual agreement between cooperate in carriers at least one of the airline designate codes used on a flight that is different than of the airline operating the aircraft in one version two or more airlines huge their own designated codes on the same that i don't what is the what is the force to give to this last line in the paragraph carrier issuing a ticket or checking baggage for carriage overloads of another carrier only as agent iberia is another carrier correct i bierria would have checked the passengers baggage and and in rome for the transportation to madrid and they were acting as agent for american airlines because american airlines still another carrier right well it's another carrier does  only as agent so for purposes of the bar samus as iberia is acting as an agent of american airlines in providing that transportation to the line scenario and that would be off line so that would be if you would go to an american airlines ticket counter and you wanted to purchase a ticket for a  isn't is nigeria another carrier american issues that ticket goes over the lines of another carrier iberia and that makes the ticket issuer american just an age well in this case what the co chair agreement says is american airlines actually purchases a block of seats on ip areas flight so in that act craft there's going to be one hundred seats for know that tariff the provision that you're reading governs into line transportation we don't have a situation where into line transportation is being governed we have a situation that involves codes what is it is for to enjoin transportation is when an airline as an analogy acts as a travel agent for another airline so if american airlines say doesn't provide service from rome to madrid they can sell a ticket on i peer ia for that transportation in that case you would only have an iberia designated code meaning i b the two letter i had a code indicating the iberia flight and in that case you haven't into line situation where american is acting as a quote unquote travel agent for iberia in a code share scenario what happens that first is american enters into an agreement with i period to sell and take responsibility for a certain amount of seats on a particular flight you know this was like a travel agent well but but they're american seats so american will receive the profit or loss but tell me about americans their american airline seats to be sold by american airline it there on the theory and plane correct but that's the agreement why doesn't it make american airlines like a travel agent because they're selling it for their own benefit and the interlined circumstance iberia reaps the benefit iberia receives the profit and american only receives a service fee in the co chair situation american sets the fare for those seats and receives its own profit and that's why the d o t regulated the difference between interline agreements and code share agreements because the d o t saw this as an important distinction and they s requirements for liability and the d o t requires the marketing carrier to be liable and its contract of carriage to gaap and any code share situation and of well the contract of carriage includes various documents one of which for international transportation is indeed the t and the other document would be the conditions of carriage itself now it's also important to know that the force amos's did have alternative running remedies in this case they did have a remedy against iberia as the operating carrier which could have been brought in the european union and they also had remedies under the montreal convention against both iberia and american airlines for actual damages sustained for the delay in transportation but they disregarded and did not take advantage of those remedies and instead they opted to bring an action under e c to sixty one in the united states simply because of the class action possibility so they the iberian conditions of carriage says doing it's issuing a ticket for carriage over a period lines well i guess the best way to explain this is maybe looking towards the add to the actual passenger ticket because the  the the key word here is over the lines of another carrier in the case with the far se misses it's actually over the lines of american airlines it's not a separate care american airline sold this ticket as a flight on american airlines we tween rome well it says american airlines operated by iberia yes well that's just you know like the contract in the other  apply and the department of transportation further states that the marketing carrier will issue the tickets for transportation on line meaning if american airlines sells the ticket they are selling it on their own lawn and that's straight out of the definition from the notice of proposed rulemaking by the department of transportation the department of transportation further requires the marketing carrier to take full responsibility for any liability arising out of the flights and this case that liability arises out of americans contract of carriage as well as the montral convention but it does not arise at the sheet to sixty one based on volodyovski and there being no direct right of action under e c two sixty one in the united states right so there's america being an agent for the operating carrier why isn't this that i bear is conditions of carriage not applicable because the bar samus never entered into an agreement with iberia they purchased the tickets on american airlines website and there was never any intent to get to be balanced by any contract with ip area it was always the intent to be bound by american airlines contract was and that was not true in the law of kinds of cases in the love tons of case the ticket was purchased as part of the agreement between mr pound meisters employer  purchased through love times are in the bar same as case are same as purchased through american airlines so i'm having trouble seeing why the operating carriers should purchased a ticket with american airlines but i bierria operated the flight from rome to madrid therefore because iberia was the operating carrier there is a viable cause of action under the e c to sixty one but because of all dark ski it cannot be brought in the united states has to be brought in europe with respect to american airlines the far same as have a right of action under americans conditions of carriage which do not is not judicially enforceable outside the courts of e u member states we are not trying to enforce the u two sixty we are trying to enforce the contracts which incorporate you to succeed on the airlines did not have the airlines did not have to incorporate the terms of the law they did not have to make an obligation voluntarily to pay compensation according to e u two sixty one's terms but these two airlines did and we had several suits that did not in the district court and we couldn't appeal on that ground because it would have been frivolous to claim that we had a case after you two sixty one was decided by this court not to have an end a minute cause of action but the cause of action is the contract that the airlines voluntarily agreed to pay you two sixty one compensation this was to not preempt our claims and under breach of contract because the airlines voluntarily agreed to pay compensation cording to heed to sixty one so for that reason there is a separate cause of action contract