it please the court of britain sparkman counsel for appellant easy street limited this appeal is of the district court for the sun district of new york's grant of summary judgment in favor of leopard marine and denial of summary judgment for easy street as well as a denial of an earlier motion to dismiss based on international comedy grounds at first like to take a moment to address the court's order of yesterday relating to jurisdiction yes jani jurisdiction issues with respect to the declaratory judgment act which requires a case in actual controversy in the jurisdiction i believe based on the research that we've done on behalf of easy street that the this court's decision in j f k vs aquamarine six ninety seven third fifty nine  explored in quite a bit of detail whether a court it was not in the brief your honor it was in response to the order yesterday but explored the issue of whether admiralty jurisdiction can be a sole basis for  declaratory judgment act action that case involved a dispute concerning a bunker supply contract and so much like this case even though the parties were not in privity of contract the second circuit said that if it relates to had admiralty jurisdiction pled by the parties that there would still be the necessity to do the skelly oil vs philips petroleum analysis to realign the parties to determine what the roles would be had the action been brought the other way so that texas to whether you brought an action in new york correct your honor and so we would answer that no easy street could not have brought an action in new york there's no claim controversy or case between easy street and leopard marine the only action that easy street could have brought was the action that was brought in panama and in rim maritime lean against the so here the vessel did not actually come to new york it was not within the jurisdiction of the southern district of new york it never was actually in the united states at any time since the acquisition of the lien in two thousand eleven one point that i would like to briefly address sort of on top of this issue this court's decision and hopper gloried versus us oil trading from last year it won four f third one for six the court went through the history of is there a distinction between subject matter jurisdiction and rim jurisdiction of course there is and so you can have situations where a party can come in and say well we waive the fact that the vessel was never arrested or seized and so we're defending this matter as if it as if it were here in the jurisdiction what i would say to that is that in this particular case the action which lippert marine and the relief which it has sought is an equitable defense to a maritime lien claim it only arises in response to the proper exercise of jurisdiction and ram over a vessel it's not an affirmative claim that could have been brought by either party in persona and so that's where district judge rakoff went off in the analysis when rejecting the exceptional circumstances that were argued in the first decision relating to international comedy he didn't find that the the court did the analysis of the various factors which are looked  under well sun neither did not find them particularly compelling but looked at them in the tally of the circumstances easy street made a basis for those for this case to be dismissed on international comedy grounds the principle matter with respect to exceptional circumstances existing here is that the only court which has ever had jurisdiction over the rest is panama and there are you're saying that your client could not have brought in an persona claim against l maritime lien law under the supply of necessaries has developed since the ninth circuit's decision and trans tech in two thousand and eight and the progeny that's continued over the last decade that's one of the factors we look at  and discussed below the court didn't dispute that the panamanian court would have the ability to resolve issues under u s law what the court found was that that court would have the produce of a fact of should it determine the rights and remedies of the parties in enforcing a maritime lien and the defense of latches and in fact in the record in the panamanian court leppert marine had filed an appeal what's called an a premium challenge to the arrest of the vessel contesting that latches applied and the panamanian court had found that no we're not going to dismiss on this basis subsequent to that and unfortunately it's not the record because it just came down yesterday from the panamanian court of appeals leopard marine had read ray's last year a request to dismiss the action in panama on the basis of judge ray costs decision we don't have a copy of that warner yet but the case is going back to the panamanian maritime court because the court said no we have the ability to exercise jurisdiction over the vessel and ram and it's the only court in the world th court maritime subject matter jurisdiction and because the parties dispute about defendants lean rights are also within their jurisdiction and because that's a live controversy barge case and that's a case where there was a lawsuit in new orleans and it was an inconvenient forum so they wanted to transfer the case to i don't remember the district but let's say it's baltimore and the argument was well the ship wasn't there you can't transfer it because it originally never could have been brought there the court said enron actions economically are designed to get the owner the ship owner to pay for a liability let's not track it up more than it is so if you've got a suit trying to get the ship owner to pay yes you have an interim right but really all you're doing it's doing what they did here you're arrested the owner has to post a bond which is backed by cash so there's more than two million dollars sitting in a county in panama backing up a very live dispute the defendant contract shows us federal law and the new york court for deciding any dispute a day after the arrest we were able to get into the district court here to get it and actually filed to get a declaration that by reason of the latches doctrine there was no maritime that ruling the district court hopefully from this court is then available as a rescue to cut a piece to be taken down to panama or any other place where the dispute over whether this maritime  willing the district court which is not yet final because there's a pending appeal there will be a hearing in the district court the lower court the court of first instance of panama on april twenty that realigning the parties is this declaratory action requires us to do that easy street could have come into court in new york and said i want to i want what i want to do what they exactly did in panama there are places in the world where you can make the argument that by reason of the fuel being on board the ship they have a right to claim against the owner most jurisdictions in the world require that we're down what about  consideration and that leads me to the second issue which is extension and there's nothing here that required attention to federal law issue that important for deciding whether or not court order to take it factor in in the extension analysis yet as i pointed out in the brief the caravel case which looks at light it says it's really only a problem when you've got to have ram cases where you get to court trying consider it interesting proof by expert at a minimum and hopefully fully rested account so when we get to lachey says there's a dispute about what's the appropriate standard of review we is that easy street decided to pursue it in ram remedies only after with unable to get money on the contract claim and only after it pursued a different ship the dolphin which was half years and the argument about prejudice but is that really the case and i and you can help me understand the record as i understand it by january two thousand and twelve first of january allied had been declared currency in november two thousand and twelve any year ok in between there were rights for indemnity and recovery that my client leopard could have taken advantage of including both on its own ship and in respect to the dolphin so it had chances to recover that back and that's one of the comments of judge friendly in the lucy sheltie case which you've cited which is when you've got a charter situation where you're trying to compel an owner  guarantor to pay you need to act quickly to tell them that there's a problem and that didn't happen here instead they sent back the but there was no way i choose between the beginning of this bankruptcy so that's when it was all over with really the next three years until easy street or less than that so i don't know that leopard could have done anything let that there were two ships that leopard head on to allied the also the first one is the leopard it has the larger bill but within four months easy street was pursuing the dolphin plane and had that ship arrested within ten months of one that that was due they decided not to say anything about the larger leopard claim during that period on top after that time was settled  i'm not sure i quite understand the strategy but the thing is they've got a large debt with allied that they haven't paid their stringing it out and arresting the leopard later on that's one of the question does was their money that was perhaps paid towards the leopard which gave them a reason not to pursue it early otherwise i agree with you i don't understand the logic of not pursuing the ship and that's why i wanted to that's not a justified way to proceed link claim a separate particularly one it's a lien claim it's going to be pursued against someone that's not a party to your contract and so if you sleep on that right which is what's happening here and you do it and the court said where there was an increase in the credit not let me step back from the bunker supplier supplying fuel there defaults like here by the charter the bunker supplier continues to spy fuel and then try to recover back from the bank who's taken over the this court said there is no equity in that case due to lack she said not pursuing those claims quickly in not telling people that that was happening what you've lost sleep the question i started this with what's the period where the point two almost three years to arrest the vessel but what could they have done if they knew sooner ally declared bankruptcy in november twenty eighth when i understood the question let me first go to what's the proper period and the proper period we submit is the one year rule which is the rule that stated in most world conventions which is the rule that would be until a and its role that new york said should apply and that the the doctrine of latches is a doctor when the federal court is deciding what period should be looked at before it's too late in the asking you and you don't need to get down in the weeds to look at the new york rule that says oh well we'll give you an extension if you're not back to where the original supply for federal law has it's a doctrine already in place that looks to see are there reasonable opportunities to say you first supplied the ship and you have some opportunity to have a link at what i'm twenty two examples where people have pursued that right within the one year time period that often is one and there are others i'm saying the one year period in new york law looks to the same period i'm saying the conventions say that's the same period so there's a confluence of factors that says look to one year question between north six sixteenth and april keeping them informed you they sent them to threats and they were keeping them form they were chasing the ship so what they were doing is yes they were behaving that they should let them now chase them and grab the ship as soon as possible but they put off doing it in this case and during that period as your art is pointing out the big harm which is the right to get any indemnity disappears so and so let's summarize this part of our discussion tell me when the period begins so i understand that probably you're not going to pursue an im ripe for the money is due to september twentieth and then you probably got a little ninety days some period like that that's the kind of period the court was considering i argument at that point in time but i think by the time you're talking november or that time period when the ship was being read to labored yes you know you're not getting paid it was a year later i don't know november twenty seventh sorry on eleven until they did the bankruptcy is a year i was pointing out that in november twentieth eleven that's when the ship is returned to allied and my client pays over the four hundred thousand for the fuel  on board which it wouldn't have done if it was on alert that if the street hadn't been paid in any event that's a year when the ally delivers the vessel to leopard until it declares bankruptcy how your owner can come to that conclusion let me refer back to that it's discretionary matter and it's assigned to the district court and what this because it did here is within the parameters of other decisions and particularly a wacky that says if you didn't move in that one year time period you're barred so inexcusable delay and prejudiced right so one argument that your adversary makes if i understand it correctly is that allied was functionally bankrupt as of extra record in this case no it's in the record your honor it's both in the testimony of the witness and the documents are in the record we can't rely on anything that happened in that case in deciding this case  well i think it's an equitable factor that you could consider if you wanted to rebalance what we say is something subject to abuse of discretion thank you or when you've retained two minutes f red herring in this case these are maritime lien claims that run against the vessel only there's not an ability to do a sister ship attachment a sistership arrest and ability to say hey you have this claim against this vessel as well as this other vessels so pay us for both and what counsel leaves out is that the dens the dolphin case was actually contested for well over a year and they lost in panama before finally settling so it's not so much a matter of hey we  easy street had just put us on notice then we would have suffered no prejudice there would have been no delay and so we would have paid the amounts that were indisputably due in knowing that it's not present not in the record not in the testimony during the deposition of leopard would have had a much greater chance of collecting this money from the proper party which was yes your honor i i believe if i may just in responding to that what the record showed was that over the course of ten years easy street had approximately a thousand different deals with allied and so when you look at it in the context of course and scope of their prior dealings industry norms and custom  they had been paid on virtually all of those there were only ways that also means you brought you were more likely to be intimate with their financial circumstances taking time but that's not what i was asking you that's just a little background which would not what i would say is that delay can only arise if there is an actual actionable right which can be enforced in a jurisdiction where the maritime lean would be recognized what judge rake off found was that actually easy street to exercise its right should have a rest of the vessel essentially within ninety days of the lane accruing without common e mail traffic that you'd expect to see on a million dollar or half million dollar client right your honor but what i would say to that is that there's there's there's two schools of thought which both apply here one is something that the third circuit's held as well in bermuda express which was on our papers and so there's nothing inherently delay no inherent delay by virtue of the fact that on a parallel track what else did you write your honor it also meetings and telephone calls what i would say one thing to be made i'm not sure your honor at least multiples at least ten but your honor the more aggressively other allied obligations right you are not until after it became clear that allied was not going to pay on any of the fifteen claims leopard has done is played fast and loose with the timelines of when things happen the other reasonable delay is unreasonable delay in arresting a vessel to enforce a lame not unreasonable delay in pursuing contractual claims which under their contract under general contractor arms you would have had years to pursue those a minimum of four years to pursue a contract claim so the delay standard is just with respect to the maritime leak and here the vessel did not call this invoice paid for months and months minds because we knew that ultimately there was a maritime lead all we have for years six years whatever it was too long trying to enforce our contract before whatever applicable statute ran and they're saying well while you were doing the taking all these modest steps goes chapter characters a hearing on the record to me to be the next well the record reflects that payments were actually coming in on another claim so there was no reason not to have a reasonable good faith belief that allied would pay the record also reflect that there had been delays and payment in the past that is common in shipping and this historic purpose behind the maritime lien act is to allow ships to continue in commerce and arrest of about so as numerous courts found is extremely disruptive both to the ports in which it occurs the courts as well as the owners of the vessel so there's nothing inherently and reasonable in seeking to obtain payment from a contractual partner and one parenthesis is that i would like to just highlight for the court is in the record but maybe not clear how i did not voluntarily go into bankruptcy it was continuing to attempt to stay afloat it was attempting to pay its creditors it was continuing to trade vessels it was put into bankruptcy in voluntarily sort of equitable basis to exclude the lien because credit was extended to a counter party and a vessel when there was a known inability to pay that's not the case here that all occurred after the fact after the acquisition  delay factor by stating that any delay was too much delay because he found that the vessel could have or should have been arrested as early as november two thousand and eleven can and he create eve fashioned another test which had never been applied in any latches decision when applying the prejudiced standard by say instead of marking a point in time by which prejudice so under the prejudice requirement arresting party has to cause a prejudice to the defendant that would not have existed if action had been taken sooner hear that prejudice existed throughout the record shows that from leopard's own testimony in the depositions was that they did have a nine thousand dollars claim which they pursued against allied and have no ability to recover that nine thousand dollars claim and that was a claim which was a crude as early as november two thousand and eleven they have no expectation of being paid on it so that doesn't change the fact that the the claims which were not paid which were brought after a time when the great bankruptcy court declared them insolvent could not be recovered and  in fact the action that was brought by leopard as i understood it was an arbitration and again the k p i case again talked about that that the difference between bringing the claim in ninety eight or two thousand and two didn't really change the position of the parties because they had had they been put on notice they would have been in a position to at a minimum retain that four hundred thousand dollars these are complex and sophisticated business entities that regularly do business and trade ships when a ship is redelivered from a charter or to an owner there is a statement of account and accounting where the parties set forth each side the charter party in this case required that bunker's be paid for upon read the livery so that is true and that is what happened but every owner has the right and the obligation to obtain and satisfy themselves that said bunkers were actually paid for by their charter party the fact that they chose not to do that in this case does not mean that easy street caused a hardship prejudice to them by arresting the vessel and they were unable to obtain that money thank you