if i may your hours i'd like to reserve five minutes for rebuttal i'm wondering counsel whether we're going to need twenty minutes a side in this case it's really a very narrow attorney's fees issue so let's see how we oh well obviously our permit you to reserve time i think your honor one four seven zero eight and i can start of like say if you consider kirshner that statute did not exist then you would have a situation where there is no basis for a property damage car max claim already for the statute in this case what's going on it's face and it's not tied to arbitration although the clause is found within provisions for congress's dealing with arbitration and i can't figure out whether subsection the attorneys these shippers every three like it's an attorney three statute and then what it says is in a court action to resolve the dispute the ship condition is the shipper has to win in court that condition satisfied the second condition is in the alternative one alternative that it's a court proceeding to enforce an arbitration award that conditions not met it's alternative if they're connected with or is a decision resolving the dispute was not rendered through arbitration within the period that's the kicker because literally that satisfied here the shipper did not obtain a decision resolving the dispute within the period because the shipper did not arbitrate at all now one reading of this would be yours that you have to go to arbitration first but it doesn't literally say that an alternative reading would be but the moving company has to make arbitration available if people take advantage of a great they don't need a lawyer it's fast chief easy if they choose to hire a lawyer and go whole hog and go to court and skip the arbitration altogether it's on their own nickel on lest they win but d they get attorney's fees if they win in court or to apply the time period has to have expired without a decision having been rendered the time period referred to is the cross reference subsection b but it doesn't say literally that they have to arbitrate at all all it says literally is that there was no arbitration decision within that period you are that's time period never expires if there's no arbitration and that within the period provided under subsection the eight for that period to have expired under subsection b eight the shipper would have to have submitted the stand to an arbitrator i don't see that it seems to me there are two ways that to say a decision with alving the dispute was not rendered through arbitration under this direction within sixty days that's literally true now your honor to imply that you have to go to arbitration first  and if the moving companies wanted to get a statute that said not only do the moving companies have to provide arbitration there's a possibility but the shipper can't get attorney's fees unless they go to arbitration first or maybe can even go to court on less to go to arbitration first gotten that second congress would have written it in your honor with all due respect you're incorrect on your statement that the sixty days has expired the sixty days under b eight never ran the sixty days in your v eight is measured from when the dispute is submitted to the arbitrator if the shipper flame it fails to request arbitration that situation does not arise because of the shippers own election not to request arbitration what do you have in this case of the ship or affirmatively elect not to arbitrate or or just the subject never came up in all situations that well i shouldn't generalize when i'm here on earth carriers provide notice and i believe it's usually through a federal highway administration booklet that describes parroting the language of the statute the arbitration  available that was provided to the campbells here it's admitted in the pretrial statement is there a written document saying i hereby waive my rights and arbitration no your honor the statute we were never involved in the word that is correct in the and the statute is written it's not an arbitration statute that requires both parties to submit a claim for arbitration it requires the carriers to have an arbitration program available and leaves the election section eight the deadline for decisions to action only commands the arbitrator with terms with the arbitrator must do and congress was very careful in subsection six not to require the shipper to use arbitration they only required the carrier to make arbitration available congress that the carrier must not require the shipper to utilize arbitration prior to the time the dispute arises at that means they can't put it in the bow of waiting the it has to arbitrate that's right it still looks like congress was kind of one sided here they imposed the burden on the carriers without imposing a burden on the shippers they impose the burden on the carrier to agree to offer arbitration they do not impose a burden on the shipper to select if the shipper does select it then all those requirements are are in under subsection b and then you get to d three a and it would be satisfied if the arbitrator failed to make a timely decision the making the issue her step in this whole process is one of the claims with the with the with the moving company by the shipper and then the moving company disallowing it or rejecting it in whole or in part then the arbitration process would begin or at least becom yes i place in between your starting and ending there that after the claim has been made assuming it's not been resolved satisfactorily the statute provides that the shipper may request the forms and requires the carrier to provide the forms to initiate the arbitration upon that request so when the shipper fails to make that request the carrier does not provide this form and no arbitration occurs the provision that your honor was mentioning  regarding what congress had done leaves that option with the ship or whether to select it but if the shipper fails to select arbitration you're back to it's as if the statute did not exist you have good morning morning please the court my name is greg good you know i'm the attorney for and susan campbell they live in tucson and moved to florida for retirement and suffered damages to their good perhaps the lobbyist of the moving company or are adept at accomplishing but in preparing in preparing our case and preparing our briefs a lot of the cases we cited came back around to just reading the language of the statute and i think to to enforce the interpretation offered by the moving companies  is really a trap for the consumers because especially in the five thousand dollars in more cases which i'll get to in the second the only issue on if there is a case for property damage exceeds five thousand dollars the arbitration referred to the half the moving companies is not binding on them and that's to track because a consumer could initiate an arbitration in a case where there's more than five thousand dollars property damage alleged have to go through a non binding arbitration and then have to go through court and be deprived of their opportunity to recover attorney's fees well for you to prevail in if there has not been a decision in arbitration if it does not state that the shipper must initiate one and we looked at this from the perspective of what really are the federal right to have a chinese is a remedial right for a ship and i think should be protected by this court and that right to attorneys fees should be liberally construed  the american role and and even if the american rule applied and we didn't have the statute i wouldn't be here today taking up your time certainly we agree that under the american rule there is the answer to that is in in my review of it is that the the carrier could have as well initiated this sixty  does not address any triggering of the period it does not address who if anybody must figure the period all it refers to is the time period contained with it in other words it doesn't incorporate the entirety of  trigger of the filing of an arbitration were incorporated into detail i think that would make more sense but d three simply refers to the the time period itself which could have been initiated by either the carrier or the ship and you know in a case where where neither party which is this case neither party requested in arbitration you still have de three which on his face says that attorneys fees are awarded if no decision is the the federal remedy remedial stance to protect consumers should be construed in favor of the consumer instead of in favor of the company that went back and helped in the draft  let me take you through something to make sure i'm understanding the statute right i'm looking at subsection  so is judge edgington and the way it works for me under under b six first of all the shipper can't be required to accept a bill of lading the fines him to arbitration second the second sentence if it's a small the street and under five thousand dollars it's view and the shipper requests arbitration the arbitration is that if such arbitration shall be vining on the parties so i guess then you would just go to court to enforce the award if you didn't get your check right now the third sentence confuses me a little what it says here is if the dispute if it's a big dispute in over five thousand dollars and the ship requests arbitration such arbitration shall be binding only if the carrier agrees to arbitration that last phrase only if the carrier agrees just to me that the shipper may ask for arbitration the carrier may say no we don't care to arbitrate is that  the case would not be arbitrated it's a correct that's correct so if that happened there would never be notification of the dispute to an arbitrator is that right that's correct case would never run would never run so in five thousand dollars cases the carrier would have the right to defeat any right to attorney's fees by simply not agreeing to arbitra honors there's no reason to have the various requirements that are set forth in d three of the statute if the interpretation is going to be that every carmack claimant can request these and be awarded the if they haven't requested arbitration first there's no need to prove to provide anything with respect to the rest of subsections i suppose except that they prevail and you're the one that requirement not what the statute says however you give the interpretation that that mr good's clients want here is to read out all the rest of those requirements and to render meaningless on the steps of the of the carrier providing an arbitration and judge kleinfeld when you are asking or directing attention to subsection b six i respectfully again disagree with you on that i don't believe although i see the language you're carrier agrees that arbitration shall be binding yes then you have non binding arbitration is the time i say yes and say that it says if the carrier agrees to arbitration i merely point why would you say agrees to arbitration if they don't have unser requires the carrier to offer the arbitration if the carrier can decline arbitration for claims over five thousand then the carrier is not offering arbitration the statute requires that it makes it mandatory now if they all have to offer arbitration in accordance with this section yes your honor so it could be non binding arbitration for that leans over five thousand and that is correct your hon small disputes at the lady opens the one of the barrels and that our glasses are broken well you can hire a lawyer to sue for eight hundred dollars so the moving company may just differ unless  underneath these amounts however that doesn't mean they all are and you do have a situation where in theory the claim could be over five thousand and a carrier may or may not agree to binding arbitration and you we can i suppose discuss what happens if the carrier says that it's not binding then the shipper would still then have to sue you just want me to read the words agrees to arbitration as though they said v six words in a require that i don't see it it just says must agree to offer in accordance with the section arbitration it doesn't say must agree that it will arbitrate act claims regardless of their size  it's an empty offer if the carrier can operate but then choose to not agree to it at all oh no you just said it so that that law review article says and i'm sure you're right that most claims are under five thousand dollars so it's not an empty offer it means that the shippers in the vast majority of cases can get their cases rapidly and efficiently arbitrated i agree with that you are i'm sorry in small claims court well  or before an arbitrator then and that is one of the tradeoffs made here in the car max claim as well a a shipper has the ability to request arbitration and then doesn't have to prove causation just proves damages were delayed lost or damaged doesn't have to allocate fault between different shippers and gets a claim decided within a short period of time sixty days and my at westfield here and thinking with the word agree the words agrees to arbitration mean what they say if there's some big body of authority out there that says they really mean agree that the arbitration shall be binding i'd like to know about it because i don't want to stumble here we i i'm not going to agree you're out in left field i do disagree with you and i believe if you read the word case which now i've forgotten that's the fourth the sixth circuit it's of it's decided under the previous version of the statute but at a time when this version existed and there's a sentence i quoted i believe in the reply brief where at least it appears to me that that court agrees to the interpretation i just target because it refers to claims going to a non binding arbitration and i i read that as consistent with what i just said that if the carrier for those claims over the five thousand dollar amount does not agree the arbitration proceeds is simply not binding the the question one could ask in is what when what happens if the arbitration results i presume that the this is i don't know whether under the program those decisions to accept it as binding are made at the beginning or at the outset if it's not made until the conclusion then then i presume the carriers only to reach not binding when they have got an unfavorable decision but the statute as i read it does not prevent the shipper when it then brings the court claim from referring to that arbitration and from requesting fees if it is again successful in the court action because then it would be seeking to have the the carrier comply with the arbitration decision and that does invoke de three  feet my argument here is that the only reason this statute exists fourteen seven zero eight is to provide the start of attrition program and if it's not being invoked then you don't get to the feet question at all if it