proceed thank you under david anger on behalf of the opponent and i'd like to reserve five minutes for rebuttal this is a case involving the contract of carriage for jet blue passengers pay twenty five dollars or thirty five dollars to check a bag with jet blue and jet blue in its contract of carriage indicates in section eleven the carrier will check the baggage of a fare pain passenger for the flight on which the past year is traveling that creates an obligation courts of long held language such as will the but the following sentence makes clear that that that they that they will check it for this flight they will not check it for that flight it doesn't really seem to say much about where they're going to put the bag and so much as to tell you where they're not going to let you put your bag well the nd sentence is for passengers can't use jet blue is as a u p s or care you can't send stuff to other places which is completely jim and they don't have to use this language this is language that they chose to use this is an adhesion contract drafted by them and this particular language is not required by the f a a and they chose of their own free will to put this language in this is figured maybe that language was put in there because of security because of my check each bag on the flight he's not going and he wants to blow up the st plane that's not put in there for that reason there is no regulations that require that that language should be in there for security and they've never argued that that language was put in there for security and the language has to have some meaning in it the contractor who played it why doesn't the language mean you check the bag for that fight but that doesn't mean that it has to actually fly on that flight the presumption is it will but there can be extenuating circumstances where it won't in your plaintiffs and i apologize i'm going to botch the name to you do you're just saying any time that a flight is canceled and then a bag ends up going on a different flight you should get your twenty five dollars well if the air bag is not on your flight so it's not there when you get there yes that's what you pay the twenty five dollars for that's the consideration it's not knows that you're there handling their handling the bag for you if you have an oversized bag one that can't go in the overhead bin and then they're there just tell you if you want to come and ride with us this is what we're charging these days the alternative is we can raise everybody's season and check bags for free for the flight on which the passengers that i want says they will check the bag for that flight it doesn't say we will check the bag and then we will ensure that it actually goes on the flight with you and it does i mean it's a different it's definitely a it doesn't say if you get diverted we're going to go pull your bag off a flight and put it on i think they try to do that but it doesn't guarantee that they will then recheck your bag on a new flight well there's nowhere in the contract of carriage where they they i know in consideration so they don't make any representation that that's going to be done what the representation they make is it will be on the say no they don't like that representation they say they will check it on that flight right check it on the flight for the it doesn't say carry it on apply what is check what is check a bag mean means put it on the fly no it doesn't well i really where do you think where do you see any of i do would be interested to know that checking a bag is the same thing as put on a flight checking back to me is you come up to the counter they check the bag they put it on the same flight but that check doesn't mean it certainly doesn't mean we will ensure that it shows up on the baggage carrier at the for when you get off while they've it's their contract and if you look at the definitions they don't define what is a checked bag what is checked baggage will just guarantee the bag if you check in less than forty five minutes before the flight leaves that's their policy on many many there are restrictions in the in the contract carriage of when you have to present the bag where the restrictions have to go i see the way i see the one in eleven following eleven see this is the passengers may check baggage up to four hours yeah i believe but i don't see the forty five minute rule i believe it's the bit to me all that language does is support the argument that it's referring to the checking the bag at the counter not a guarantee when it talks about you have to check the bag for hours before it's talking about presenting at the counter there's no representations made as to when it will show up well then why would you say i have the language which the passengers traveling because then you're saying you're putting the bag on the plane  informed by the by paragraph twenty five b carry will endeavor to carry passengers and their baggage with reasonable dispatch yeah but if you look if you look at that what they say is there is this if there's sort of guaranteeing that's going to be on the same flight they almost can't help but deliver the baggage on time your bag is going to arrive with you that's the promise no but this is not a promise three thousand and thirty eight dollars is not a promise you look at the beginning and it says or service plan carrier sets forth the passenger service plan below policies and procedures set forth in the hyperlink documents do not expressly form a term to this carriage contract and then it goes on and says in section three subject to the terms of this contract of carriage subject to number eleven we're going to try to endeavor to do all this stuff that's aspirational language that's not a binding contract that's what we hope to do and it's interesting because what jet blue s so you read a three as not part of the contract ice aspirational language well it may be i think aeration all that means that you don't have that it's but it's not contractual in nature it doesn't mean it's not part of the contract but it's not like it's like using a best efforts or you know we're going to we'll do everything we can right but aspirational language can't change the terms of the of the agreement so if the binding terms of the agreement a three you just read us the section on hyperlink documents eighty three is not one of those hyperlink documents right no but then it says subject to the terms of the contract of carriage so subject to number eleven we're going to try to do all this bet all these things these are their aspirations this is what they're hoping to do and in fact jim ok now i'm really i'm confused i'm very confused about your argument so if i look at thirty eight  we have the plan below the height and they have they have other documents they're referring to hyperlink documents are directional and do not expressly form a term of this contract of carriage right that's the hyperlink documents right three is not one of those hyperlink documents i carried it is a term no it's not a term though and they've admitted it if you look at their brief and i'm referring to their underlying brief what they argued to the court is the basis for a viable contract claim here instead of assuming definite contractual deadlines or obligations the c o c merely states in plain preparatory language jet blue's goals for this process jet blue and the cite the same section you're citing will endeavor to deliver the bag on time including making every reasonable effort to return mishandled bags within twenty four hours that's not my argument the paragraph thirty eight dollars is not part of the contract but i won't let an argument that what  is doing is telling you these are our best efforts and this is aspirational and therefore you can't sue us if we don't do this we're trying to we're doing our best here i agree with you and then they go on that they say these are not enforceable contractual agreements i agree with them thirty eight  a forcible contractual agreement it's an aspiration eleven is in a forcible contract i would have to read my article mike my question is why don't we have to read eleven in light of thirty eight i think you read them both but which one is a contractual obligation and thirty eight is not you can't change the contractual obligation with predatory language that we hope or we aspire to do you can't you at least change how you understand even if we accepted your argument couldn't wouldn't that still go to how understand what the definition of checked means right and could they define what that means they absolutely could not but they didn't and i and i would argue or it seems i mean why haven't they why don't you read that aspirational language at a minimum to put some contours around what checked means mean we're going to put it on your flight we're going to try and put it on your flight we're going to check it to put it on your flight if it doesn't make it here's what we're going to try and do well and i agree with that but the issue is the agreement the promise to check in on the flight they will check it out or they will check the bag for that flight that's the promise the acme argument would be stronger if it said we will place it on the flight with it i agree but i think it i think the reasonable consumer would say that's what i expected when they said they're going to check in on the flight and doesn't that create an issue of fact doesn't that create an issue of what does this contract really mean doesn't that show cancelled flight by the carrier and they put him on a different flight to get them back to california so it was an impossibility on the one that he was supposed to be on the carrier to put the bag on correct the original flight to sacramento the bag wasn't on that flight they flew him to san francisco and he drove back to sacramento the the bag did not go on the flight that he was checked in on which was to san francisco how does that fit into the case i think it shows our point which is if they're agreeing to check on the bag of passenger travels on which they say passion is going to travel then they have to put it on that nd flight and if they don't at the very least we are entitled to get the money that we paid for that contract back to get some compensation they offered him a coupon to buy another ticket on jet blue it and how much was it for i believe was a few one hundred did you take it he took the coupon i don't think it was ever used because he didn't have the opportunity though does under your theory jet blue could save all the money on the extra coupons and just refund the twenty five dollars because that's how absolutely i think they're required to refund the twenty five dollars because the deal is you pay the money and paragraph eleven dollars says you put it on the on the plane the pastor is going to travel or check and i agree there's vagueness there's ambiguity what does check mean does it mean it's going to be on the plane or not i think the average consumer is going to say yeah i expected the bag to be checked on my plane and travel well i would tend to disagree with you i think those who fly a lot some of us carrier bags because we don't have any contract you can't dismiss it on a motion to dismiss it's got to go forward so that there's a factual findings on what was understood by my client and what was intended by their client i see them running very late but if anyone has any more questions i'd like to reserve a couple of morning your honour's robert burns for the service for the jet blue airways corp may please the court in light of my colleagues argument there are a number of places i can start here so i'll figure i'll just start with the notion of harmonization there is an inconsistency here between plaintiff's construction of the st sentence of section eleven which means that bags and passengers will always fly together on the same aircraft and everything else in the contract of carriage that deals with with and bag losses and agnes handling all of which speak to the proposition that jet blue will try its best will endeavor to get you back to the destination on time there may be delays there are no guarantees goggles may change and if your bag is delayed here's a set of rights for you if your bag is lost here's a set of rights for you if your bag is mishandled or damaged here's a set of rights but there's an inconsistency between plaintiffs construction and obviously the district court and this court's obligation is to harmonize the provisions of the contract to the extent possible now we don't think that there is an inherent inconsistency between section eleven of the contract and sections three hundred and fifty three sections twenty five a these provisions can easily be harmonize as we say in our brief and as was alluded to in the question in from earlier this morning we think the better reading of section eleven reading the three sentences in the initial paragraph of that section together is not imposing an obligation on jet blue but rather imposing a restriction on passengers as to what they can do with their bags well it seems to it does seem to impose an obligation on jet blue to check the bag on the same flight and the question in my mind is what is check in the bag and could you buttress up with anything else in the contract that would suggest that checking the bag is really just presenting it at the counter and putting the ticket on it to put it on the same flight well there's no there's no definition on the contrary for what checking means will have to resort to just the common x well what is jet blue treat checking out any internal documents anything in the how jet blue operates that suggests that checking as they use the term only means presenting it at they at the at the check in counter i can speak to the existence of internal documents at this point on the motion to dismiss stage i think reading the section interesting in light of the common understanding of what checking means there is a moment at which a bag is checked and that's the moment which the passenger arrives at the skycaps can stand  front of the terminal or at the check in gate and says i'm scheduled to fly on flight to j f k please check my bag and flight to j f k so to the extent there is an obligation imposed by the st sentence of section eleven that's the magic moment right either jet blue checks the bag on flight to j f k the way the bag goes or jet blue flights checks the bag on flight twenty two dollars to timbuktu in which case there may or may not be a breach of that obligation so i could sue theoretically there could be a breach but that's how i have is if they don't allege that's what happened exactly to the to the extent there is an obligation imposed by that st sentence jet blue complied with that obligation here because plaintiff was scheduled to fly on flight whatever it was to sacramento presented the bag jet blue checked bag on flight whatever it was to sacramento but theoretically they could jet blue could violate that by you could have somebody who put the wrong tag on it so that would be the oretically a violation of checking the bag on the same flight d theoretically your honor so again to be clear or our position is that that sentence doesn't impose any obligation on jet blue but to the extent it does you're correct i mean to the extent there is an obligation that's embodied in that one sentence yes if the bag gets checked on flight twenty two to invoke to instead of flight to to j f k if there is an obligation maybe there's a breach of that obligation but as your honor noted that's not what happened here the in that magical moment when section eleven is operative the act of checking jet blue did everything that section eleven required of it and that's to bring it back to the notion of harmonization your honor that's the moment to the extent section eleven says anything about what jet blue must do the moment is that act of checking as soon as the bag disappears and as soon as the passenger enters the terminal and leaves the check in desk that's when the other provisions of the contract of carriage starts to happen and those are the provisions section thirty five  three sections twenty five b and a number of other sections that say after that magical moment fine flying planes is hard stuff may happen and any and we talk about in our brief any number of reasonably foreseeable things that might happen to separate passenger from bag heading to the airport after this i'm scheduled to fly out of three i'm going to try to get myself onto an earlier flight back to j f k so we if i had checked a bag that agm might not follow me i might i might move to another flight or the bag may simply be mishandled on the bag did the plaintiffs here did he move himself to another flight there see and maybe we can't decide that dismissed because i guess he's alleged that he did the flight was canceled but is that accurate or it's not accurate your honor the he's alleged to cancellation that's not what happened he was scheduled to fly to sacramento but we can't consider that emotions understood well i'm asking you know i mean i think i mean there's nothing in the complaint that would allow us to that that's right i mean the allegation is that the flight was canceled that's not what actually happened what actually happened is similar to what to what we're talking about he checked his back to sacramento whoops there were delays on the sacramento i thought it wasn't you know where it was and then he alleges in some good faith and i don't know that had such an allegation exists in the complaint but what if he were to have alleged it is or anything in the complaint that could be construed to allege that you that jet blue checked it to the wrong location not not as i read it your honor he was scheduled to fly a flight again i don't have the flight number in my head but whatever the flight number was to sacramento and that's precisely where the bag was checked to and in fact that's precisely where the bag went to even though he doesn't allege that it was checked to not on the original flight that's correct there's the allegation is that it was checked in accord with his original itinerary which change for a reason which is which is in dispute i thought that was interesting when i saw player in whether he's an appropriate class representative is that is that the next argument if this if we were to get past the motion business i mean a player plays a huge role your honor in that the case is initially styled was a was a copycat of the haycocks huffman decision out of this court from several years ago involving us air and that case in involved what the court deemed a strike was a strict contractual obligation to deliver bags on time u s airways language in their contract of carriage was different from jet blue's i'm actually expressly committed to on time bag delivery so that's how the case was initially postured it wasn't until the amended complaint that this notion of there's another provision it's the st section of section eleven and that's really what our case is about but because section eleven it's not an obligation i don't think anyone contends it's nobly haitian for strict on time bag literary although the one of the ancillary effects of plaintiffs construction is that it effectively means it's a strict obligation for on time by delivery but if the case is all about the st section of section eleven and where the bag gets checked to then absolutely and there was there was compliance with that obligation here and frankly you know i'm not i don't want to talk about i don't want to make up numbers or make up statistics but i think it's fair to say that in most cases in which bags get get lost or bags get mishandled jet blue is going to have complied with the obligation to check the bag i mean the notion of jet blue checking the bag on flight twenty two to timbuktu instead of flight to j f k is probably not what happens in the vast majority of times what  for the lad that he was originally supposed to go on i mean that yes i do and i think your honor i think that's consistent with the allegations in the complaint as well ok but then he was switched but the bag mean the actual factual scenario what happened here was the sacramento flight was heavily delayed he was given the opportunity hey there's a flight to san francisco that's leaving that's not delayed you want to go to san francisco he said yes but again that's that's neither here nor i think i've heard council now say that section eleven carrier will check the baggage of a fare pain passenger for the flight on which the passengers traveling creates an obligation i think it does i don't think there's any way it doesn't create obligation then they paragraphs what can be done when it says carrier will not check baggage to destination other than the final destinations on the passenger's reservation down below again checked baggage the magic moment is not even if it was when you checked it it says checked on which the passenger is traveling so if you didn't check it on the plane the passenger is trying to be interested when is the magic moment is it at the counter or what will win is your position when the magic well i think the magic moment is on the plane or not when the baggage handler puts on the plane because that's what because otherwise the language flight on which the passengers traveling would be superfluous you could just end it will check on that on your flight or will check your bag for you but when they go on and say on the flight on which the passengers traveling that's their obligation they created the obligation we didn't they did it's their contract it's their he's in contract they get to choose the language nothing required them to make this obligation but once they make the obligation they have to fulfill it and if they don't then it's a simple breach of contract and that the consumer's entitled to get restitution of the money it paid for the service it didn't get the irony is he got actually arguably more restitution than what he paid i mean well he'd have to spend more money with jet blue to go to get that and you know the complaint we've gone through some of the facts the complaint is silent a complaint sent simply says he was originally scheduled to sacramento and then he was diverted to san francisco san francisco was the flight the passenger is traveling under paragraph eleven not sacramento and oddly they say oh went to sacramento well he went to the sacramento airport and this is in the complaint but as dad wasn't there and showed up three days later they called him and said oh we found your bag so we don't know where it went it certainly didn't go on the plane that he was traveling on which is the obligation of paragraph eleven and again the prefatory language of those other sections talk about what their aspirations are but that language can't change the terms of the contract is if i said to you hey i'll come o saturday you say great i'll pay a ten dollars and we enter an agreement i'm going to mow your lawn on saturday for ten dollars and i say hey i'll be there around eleven when i finish my paper you say great and i show up at one thousand one hundred and thirty most of your line you say wait a nd you didn't show up at eleven i said i was going to try if they said look the sacramento flight is delayed by two hours for any of you passengers who live someplace halfway between sacramento and san francisco we do have a san francisco flight that has availability we're willing to put you on that flight and he and he goes over  go and i have a checked bag is is jet blue obligated itself now to pull the bag from the sacramento flight and put it on san francisco under this language yes there because it says the pattern on the flight the pat the flight on which the passenger is traveling y it says it but it also says check check the baggage writings they put they will check it on them so if they checked it to sacramento but in they didn't show it was but it was checked for the bag for the plane to which he was traveling but we don't know that it is yes because he was going to sacramento when he checked in at the counter right ok well those those facts are time to think check the bag he was going to sacramento's facts are not in the complaint but yes you're right i thought that was i thought that was obvious i thought that's what you told us i thought i thought you told us he later th diverted him yes they did but those facts i'm just saying are not in the complaint that's all i'm saying and again check the baggage on the on the flight on which passion is traveling has to have meaning you can't get it without aspirations later and when he says i'll change the flight i'll take the fight to say san francisco then they're obligated to check the bag on the flight on which he's traveling the flight to san francisco not to leave his bag on some other flight and we don't know whether he's even on the san francisco flight at this point that discovery has not been done but again this creates an obligation this language undoubtedly creates an obligation and once that obligation a set they have to follow through with it and if they don't then we have a viable claim now they may we may in discovery fight over a whole bunch of stuff but at this stage we get to plead this and we get the plea this is the contract between the parties because it is and that there is a breach of that contract and we get to pursue it it would be unfair to dismiss the case at this point based on this obligation which now jet blue says in fact was an obligation airline get integrated further now the damages it gave to him or whatever it was two hundred dollars it for as a part of a settlement of a claim to force the consumer again to use that same company and that's exactly what they did he never had the opportunity to use it he's not a frequent traveler thank you mr thank you i think both counsel for the