we have six consolidated cases solid it appeals or tandem appeals on the calendar today and they are all admiralty cases so we will call this the  before the briefs to have been read in most circumstances so it may be that we see that we gave you more time than you feel that you need so don't feel that you need to use every moment of time but we've also got plenty of time so  vessels whose lawyers you'll hear from today and without our clients bankers we would not be here if the ships would not sail there would be no money involved november seven two thousand and fourteen a day which for us started a lot of work the collapse of o w bunkers and therefore things that were new from november seventh tw fourteen the first thing the question that every bunker supplier has heard since this have you paid your physical supplier that wasn't a question before november seventh tw the second question was should there be a vessel arrest where the physical but supplier was never paid there's a lot of hypothetical that is going on about the question of whether that should happen but the question but the point is before o w it did not happen bessel arrested not happen when the physical supplier was not paid when the trader was arresting we're talking about today inner pleader essential equity and so we have really double equity here we have equity that we see in admiralty which is an inherent part of  all the way back to when absolutely courts and courts of law were running in parallel and people who could not get that the result in law would be able to get it in equity in admiralty and the inherent equitable nature  and the fourth thing that we did not really not see and haven't seen anywhere else before november seventh two thousand and fourteen is clause l four of the terms and conditions which everyone here and all parties say applied throughout every step of every transaction no matter how many o w entities were between everybody agrees the o w terms and conditions including l for applied and control and here's the way to remember how does that help your argument i mean it's also repeated often in the speech that maritime leans down arise without the court having to go to the intermediate cases can lucky or the contractor cases lake charles stevedores what l force says is that we will be assuring o w we will be ensuring that you get paid physical suppliers we will be assuring that you have your maritime liens that your physical that your terms and conditions require we will assure that it doesn't matter where you are in the transaction because you are the only physical supplier of the bunker third party there was only one in each of these transactions and it was in  happened lloyd opinion came down i think you can remember what was going on there was a lot of uncertainty this is never happened before a lot of uncertainty that it was there was some sausage to be made and and and so we got some sausage now we got a look at the sausage what did judge for us get wrong your judge for us did not arguing with the most serious look at oil for as she should have looked at l four and one of the things she tripped over was what l four is all about l four is an exemption like a tax exemption if you have a tax exemption you don't pay on certain things this  an exemption it says that in the head headings for l four to everything else so she said well the third party group terms are inconsistent with the rest of the terms and conditions yes absolutely that's what l four is all about it's an exemption from the rest and it says these terms and conditions all the o w terms and conditions are subject to variations in circumstances where the physical supply of the bunker's is being undertaken by a third party our clients which insist our clients did insist and she did not look back at our at the at the at that instance of insistence a g in terms in the sales confirmation there was a lot of discussion back and forth of what the significance of a bunker delivery receipt is and we can set aside is it regulatory does it do something else but what we see is that in the  target confirmation and the in your work confirmation it repeats their terms and conditions that's an incidence of insistence and in the terms themselves it says we are delivering according to these terms and in each of the four transactions each of the four transactions embodied the physical suppliers terms the only way in which there was any insistence because i mean that these d d r as they come it is if i understand correctly and correct me if i'm wrong there at the very moment of delivery or you know at the chems very late in the process to be insisting on your terms when you're when the oil is already been delivered to the ship yes your honor they show consistent insistence consistent insistence all the way from the beginning of the transaction when our people come back and say yes we'll show you this subject to our terms and conditions and then at they only say to you bunker  exactly because first off there's no question the o w terms are a part of this and and here's an interesting thing in the terms look at the definition of buyer and this is in judge for us  six buyer means probably you could include everybody in this room to buy or vessel supplied master owner managers or any party requesting offers or quotations or ordering bunkers for th about every supplier down the line is part of the definition of buyer in this and so then it says right that insists that the buyer by definition o w terms and if you look back at our suppliers terms all the these buyers are included is also bound by its terms and conditions and it doesn't matter if there was never a communication this is what also what i think judge for us tripped over by el for there never has to be a direct communication between the physical supplier and the buyer it sets that's eight so you're saying that there's an agency or that you're setting up a commercial relationship by the being established by the suppliers terms retroactively and imposing them then ultimately on them on the ship margin if it's an opt in how does the ship i mean what's the certainty there with regard to the ship it's not retroactive all your honor it is it is at the beginning of that you've got to get the ship ordering or implying that the that the ship is ordering the bunkers right that's that's the first  yes and then o w sends back its terms and after years of that step and the o w terms have the help this provision in the say if there is subsequent agreements down the line then there is some modification of o ws terms but it doesn't from the supplier or the suppliers amount that suppliers do absolutely absolutely what the sense is the suppliers get paid suppliers terms say we get paid this says we incorporate the suppliers terms and the sequence of the transaction is first the ship owner will say i need bunkers and they go out to a bunch of of in this case traders and the traders will go out to different suppliers and get quotes and the traders will get a confirmation from the supplier yes we'll sell you at one hundred dollars a tonne that's when the traders that's when the suppliers terms come in then o w package this up and says ok we'll sell you at one hundred  l four allows some kind of rearrangement of the understanding of the relationship between you and the vessel charter a vessel on it provides both for a lien in ram and it provides for it in persona a claim statute not from the contract exactly ok so so therefore anything that says that they have a lien doesn't mean they have a lien in any of the downstream contracts correct the statute yes sir your honor says of course that someone who provides on the order of the owner so here's the order from the owner goes to o w bang back through under l for the way i act the way i try to understand this is it seems to me that the owner has to have be responsible for or direct into some kind of relationship that works downstream to the supplier like we know we have cases where the owner says use company x and there it's pretty straightforward the owner has tied the hands of the middle person or middle people and so therefore they're just passing along the owner's orders but here there's there's independent judgment exercised by everybody down the chain is there you just said traders go out and did this and they find suppliers and then they make the ship if they're not picking anybody how can you say that they're controlling that purchase i'm not saying that that's that's the wonderful thing about oil for they they jump over that they don't say you don't have to doesn't matter we don't we're not disclosing who that is know but how does the terms in your how does that show that that they've that the owners controlled the choice that's my point the owners don't have to control the choice that's not that's why it is that what the statute requires the the owner makes a order to someone in authority to bind the vessel and they certainly have have done that the owner of the charter makes it has made its order through o w o w says i am transmitting this order to the physical suppliers through l for whose terms and condition have the ability the ability to disapprove the selected provider yes was that it's it's just it's the way the commercial transaction works out in the country it's it is not it is in the it it's probably in the o w terms i'm not sure about that but your honor the judge forrest it calls important to know and nobody said anything about this in any of the briefs i mean it seems to me of control is the thing that met matters here and then i get the under i can see the inequity ok i can appreciate inequity that you're talking about but this is th story lean so i'm stuck with the categories of for compliance and to establishing and i can't i've having trouble understanding how the owner has controlled the the order you know the owner says i need point the court's attention to judge hates opinion and c l v o w bunker where he applied l for exactly as we're saying it should be applied and the owner didn't have a clue about who echo was except of course echo pulled its barge up to the ship and the master had to say yeah come on hook up there you go and so they did know from that standpoint but all four unlike lake charles unlike ken lucky doesn't require the owner to know anything except there is a third party which is providing the bunkers here there unquestionably was that the simple fact that they know that there's a third party means that they've ordered it from that third party through four yes morning members of the panel paulson for i n g bank just two seconds on who i n g bank is i n g bank is the security agent under a seven hundred million dollars revolving borrowing base credit facility whereby oh the o w banker entities obtained their working capital it is security agent for secured the lenders i thought they were the orange rabbits where you well i'm sorry i apologize my belief in a correct way we can correct that as i get up later is that there is nothing in those terms and conditions about the owner rejecting the supply the physical supplier and in fact the from the charter orders to an agent who then conveys those to a third party or down the stream and you have an agency chain going down that's how she kind of looked at it and she says there's no proof of agency here and so therefore the  suppliers albeit the folks that come up get stuck with some of this because of a ws bankruptcy can meet the requirements of the lien that that in this what this boils down to the statutory language is clear yes this is what it boils down to a party can get a maritime the party that gets a maritime lien is a party that provides necessary necessaries to a vessel on the order of the owner or a person authorized by the owner authorized is the language of agency courts have put a judicial gloss on the statute identifying two lines of cases you don't have to buy into the gloss if you don't want to but it does provide a shorthand for understanding how the cases work  indeed there is a chain of agency and the physical suppliers such as mr sims clients took orders from somebody authorized in an agency manner and agent with all the manifestations there with  places the order with the physical supplier the physical supplier would satisfy the statute but with that without that agency relationship it doesn't and there are persons and entities and it identif subcontractors as a general rule and this is judged in integral controls don't have liens because they rely on the credit of the contractor the general contractor not the vessel so the only way they can have liens is if the owner somehow directed the selection or selected the sub contractor in such a manner that they're essentially working for the owner and port of portland said that's really like like the general contractor being the agent of the owner so in and so even if in the usual case there may not be an agency relationship but when we look at that term and the surrounding facts there is here i need to be honest i don't understand his agency argument in  sims physical suppliers briefs indicates that somehow the agency flows uphill from the physical supplier that's not what the statute says in any event if even if that was true and i don't believe that it is it wouldn't provide the type of agency relationships that would give rise to lean it was certainly go contrary the general understanding that the agency arises from either the six pressed authorization of the principal or representations of the principal may make to the general public to clothe an individual with a parent authority to bind the principal generally agency flows from the principal to its agent as opposed to through some reverse order that a third party is going to imply an agency relationship between the buyer but there the buyer that's standing in front of them and someone who is behind them who's authorized the buyer or employed the buyer but the buyer is an independent contractor on behalf of that person third party back and or or an employee or an agent i mean it seems it seems to reverse the idea of how agencies created right agency is never to pre position and it arises from facts for manifestations be it actual or apparent authority there is no record evidence of anything of the sort in this case the fact is we have chains and it's very clear of contracts of purchase and sale at no point at the bottom of a sales order confirmation around has a as agents only or something like that that language is not apparent it's nowhere in the in the record and the physical suppliers can't manufacture it what do you make of the idea though that the other argument that he makes it has a little bit of a different twist words in some sting is that the the vessels enter into these arrangements with o w n o ws contracts as you know if there are extra term added or different not different i don't mean to say different extra turns at it that those terms by downstream individuals those terms will be part of our arrangement and such and one of got right here you look at the contract to look at second section a three general trading conditions of another party will not apply and less expressly excepted in writing by o w b there is no evidence of that in this this case mr sims and his clients arrested the vassals in rem and if i remember correctly for instance in a work the claims against the vessel are only in ram and do not sound for instance in contract or in quezon contract nevertheless those arguments have been advanced both in the district court and here even though they remain wholly on pleaded let me just go back to el for because  no finding in that case that somehow l for transmogrified the o w terms and conditions in such a way that the physical supplier received  provided goods to the vessel on the order of the owner or someone authorized by the owner of that analysis not in the case the case is about whether the arbitration clause in that case  meeting provide i think that the rule that the court should impose with respect to the meaning or provide is the one that's been followed in clear lake by the eleventh so articulate the rule then you can tell me what its pro essentially providing necessaries means putting them on the ship and there's no there's nothing in the case law  be an entity a physical supplier or contract supplier that puts the fuel on the ship on the order of the owner or a person authorized by the owner has provided necessaries so that in most cases is the contract supplier in some cases it can be the physical supplier if there is agency or if there is a line of  or if the owner has somehow selected the subcontractor or directed the selection of the sub contractor which is not the case in these cases so it's a simple statutory analysis provided is done the necessary is have to be provided by a person by the person authorized by the owner are on the water of the on or person authorized by the owner and that can be in this case is like the o w and east middle east o w u depending on the case so deb you u k far east that contracted that had the contractual that had the relationship that had the direct link with the owner and the fuel was put aboard the ship but what do you it well we'll get to that in some more detail later but that risk analysis was not an analysis ever done by any court has ever looked at these issues the the the risk analysis gives me a headache to be honest but even if even if she was correct the fact of upstream and downstream contractual risk was in evidence by way of the evidence put on them a reconsideration that showed and judge to prone in clear lake echoed this the decision that judge forrest made on on that question was entirely to my read of it evidentiary we don't have the the morning my name is david potter and i also represent i and g bank in just the a g m case and our facts are very similar to the facts in the other cases and so all of the positions that mr paulson just laid out would apply to our case as well and in our case it is in the a g m case judge forrest made many factual determination that this contract was simply between bergen bunkers and a g and in fact the bergen bunker's contract itself expressly points out that the buyer in this case is bergen bunkers and as judge leslie was talking about who would have sued who would have sued if this wasn't delivered well who would agee and have sued if there was no o w d bankruptcy they would have sued bergen bunkers because they extended credit to bergen bunkers they were comfortable with the risk that they were taking by extending risk to bergen bunkers and that's why in the in the contract it says bergen bunkers is the buyer yet mr sims today when he talked about what a buyer is trying to go and say well the buyer in the o w terms is different but you know w terms don't apply anymore so in one sense he wants to use the definition of buyer in the o w be terms between o malta and jasper but then says these don't apply and let's just forget about the definition of buyer in our contract not only that but the invoice in this case was directly from a g and two bergen if this was some type of an agency relationship we would have expected this to be in care of so here this is a bill to jasper can you pass this on and to them and that's  essentially what mr sims has argued with respect to the agency relationship is that somehow bergen bunker was was their agent for collections and yet there's no indication of that in the record factually all of these arguments are completely unsupport and judge forrest made many factual determination that were simply cannot be found to be clear error because there is nothing in the record that would in any way contradict it with respect to the risk here the  and i'm not arguing the provision of risk because we're not we don't have the affirmative claim of a lien because we've resolved that with jasper but you know in terms of the unjust enrichment claim first of all it was never pled here and judge force found it's not pled you can't bring it up now but secondly quantum aero it is not designed to basically replace the contract that you made that you don't like anymore because you're in bankruptcy and essentially that's what g and wants to do we want to take that contract with berg and throw it out because now they're in bankruptcy and now we want the court to basically create a contract in equity between jasper and and a and finally the the idea that this is an unjust enrichment by itself i think is flawed both of these parties i n g and a g and extended credit to a party they extended credit to an be entity and both of them took risk that's inherent in the nature of what a contract is and if  the whole concept that it would be somehow just to basically take away the security interest of the i n g and replace that with an equitable concept basically favoring one creditor over another i think would turn the whole idea of unjust enrichment on its head and secondly and it would be bad for commerce in the maritime industry because you know mr sims in his brief talks about how commerce would be affected by the fact that physical suppliers won't provide  fuel to ships based on the fact that they don't have liens but it's been since one nine hundred twenty two that subcontractors haven't had liens in the juanita and in this circuit integral control set forth exactly that same concept subcontractors don't have it and there's been no evidence that there's been an effect on commerce and yet if you tell lenders to the admiralty and maritime industry that you not you are not going to be protected we're going to supplant your security interest with equitable arguments then you're going to see a drying up of financing in the maritime industry and that will affect commerce if there are no other questions  good morning your honour's gina venetia here representing the vessel owners in two of the appeals jasper in the a gene appeal and cosco in the old appeal at the outset we like to stress that as vessel owners our overriding concern is that we not be compelled to pay twice for the same bankers which is why we commenced into played a proceeding in both of these cases juran our has already found that the use of into pleader is appropriate in this context the into pleader issues were rendered moot by virtue of the district court's finding on the physical suppliers lien but if this court reverses then a remain and is necessary so that the district court can add the issues that arise with respect to the competing claim of a maritime lien from the physical suppliers and the competing claims from i n g which were stated as contract claims and lien claims so if your hono then they aren't title but if not there's a reversal we need to go back and as your honor recognize in the happy case when you're looking at these competing claims that may require the district court to untangle complicated questions that we  left at the district court to analyze the first instance assignment any number of things legitimate simon how much should be paid to whom to wear that sort of thing so having said this it is our position that the district court was correct in determining that the physical suppliers do not have  stress also that in these two cases the aegean appeal and in the iraq appeal they're the only basis for claim against the vessel in the vessel owners are in ram lien claim there were no direct claims the physical suppliers at all you can look at appendix pages thirty nine forty six for that and in the aegean case the only claim asserted against jasper by the physical or was an unjust enrichment claim which you can see a pages sixty two deaths sixty three of that record no direct contract claim so earlier today you heard mr sam say that clause l forgives among other things in persona rights against the vessel owners that the entire discussion is irrelevant and immaterial in my two cases because there were no such claims pled the district court noted those absences in in their opinions that was correct the district court was correct in not granting any relief to  to a g and based on an pled direct contractual claims turning to the lien issues in these two cases everyone agrees that the requirement of the lien act that is at issue is the authority requirement the the the fact that the supplier has to prove that it supplied the bankers on the order of the owner or person authorized by the owner well the statute says agent that you told of your blog hire somebody to provide you with bankers but it does your on in section two correct in section three one three four one of the act right accepts what those who have presumed authority and in that list its owners its agents and that section confirms that what the act is concerned about is whether someone is acting as an agent and is ordering the bankers from a supplier on the vessels behalf does that had two district judges examine these issues and both district judges concluded that the suppliers could not establish the order requirement now we sit here today and what we hear all about is clause and what we heard today is that clause from mr sands as clause four what that is it should be interpreted as being a guarantee that the physical supplier will be paid no matter what i want to also emphasize that in the district court there was no elaboration of this argument to that extent there was no submission on english law there was no testimony for witnesses to support it there was no document to support there was nothing support send it to the district court to advocate for this position that we now hear today there was the repeated montra l for l for l for l for makes my terms apply but no explanation to the additional court and i submit none here to explain how that clause which trigger how that clause brings their destruction that's right here and there was no just no elaboration of that before the just a court and none here as well so one other thing so so so the interpretation being it advocated was not was not presented fully to the district court so then even if you get to the interpretation the the language of clause four does have without a doubt factual predicates that need to be satisfied insistence and also banned now mr sam said today of course there was insiste course there was insistence i would like to to to talk about the cosco case in the in the case on that point if i may in the cosco case again no evidence of insistence and as we sit here today in the appeal we don't even see any evidence of that either in the main brief of of iraq they argue at a footnote on page seven they argue of course of his insistence because here we are we filed suit uncontested that communicated only with usa in the contract in days only the documentation exchange between those two you can find it at record pages three eighty two three eighty three and three ninety nine to four hundred those are the purchased and a sale confirmations exchanged between the two no mention of a g in terms not does not an e mail a testimony anything that and even said to its contracting party our terms apply and yet they stand before this court and say not only do they apply to us say they are far east and the applied to cosco so there is no evidence of insistence and copy in the record so your your position is basically if you wanted to rely on if that term is relevant to establishing the agency relationship what with this ship supplier would have to show is that even though o w banker reached out so we started from the top bottom then from the bottom up we said no we need to deal directly with the owner we need to know that the owners is authorized to provide these i'm not so sure your honor that clause enforce even that way i don't even though clause i don't not think clause or accomplishes what that what they suggest period their position is that it acts from the bottom up in pushes up and creates an agency required by th now i also want to emphasize in both of these two cases in the main brief submitted before your honor's the position was that clause four makes o w their agent in the reply brief we hear that clause four makes  their agent and our agent so the argument ship with the double agent they are exactly exactly who he is very well exactly and so again it's a cosco case it bears repeating no evidence that the terms even applied to their own contract like heartening misters of beat him up pretty bad but but you know he's he's only got so many bullets and he has to use but i would suspect that his argument is that the have stated and certainly not presented to the district court in that matter but i think when he spoke first to the n c l case what i think is important to note in the n c l case what judge hate to address a very discrete issue not the issue they said he altered the term between those two it had parties in it change their relationship not that it created a new relationship so so although i think that is what his argument is no support for that in this record nine and  sport i do want to say one thing about the a gene case your honor because i talked about the cosco case now in the a gene case again no real submission on what you know how else for accomplishes what they say it accomplishes nothing like that but in the a gene case what i think is important and you heard mr potter mention this also no real demonstration of insistence again we see here in in the main brief a footnote in page seven which is the only place that insistence is addressed before this court and they refer to the signing of the delivery seat the issuance of the invoice which was issued only to bergen by the way and the fact of this litigation and again i emphasize that even under the n c l case and you can find this at page fifty father that opinion judge hate concluded that post contracting activity such as that is not sufficient to trigger an application of cause for but i think it's important that if you in clause in the a case because their position is that their terms get brought up into the head contract that is their position they say clause or accomplishes were issued to bergen but more importantly and i stress this the charms the terms the lien language at page one hundred four the record only state that the seller has a lien to the extent the  political law allows that's what it says it merely confirms that if the law otherwise grants a lien then they have a lead and that makes sense because everyone knows every maritime practitioner knows that are not created by contract and so for that reason that is all that the terms say so even if even if someone would adopt the interpretation advocated by a ga and even if someone would find that the lien to the extent the law allows now think the district court did a very good job of examining in both of these cases the facts and the circumstances of the relationships they examined copious amounts of documentation witness testimony  documents related to the contracting of the parties the b t r everything else and on the b t r your honour's i submit that the impact of that is a question of fact because it has to be analyzed in all of the circumstances  are for the district courts determination about the impact of the b t r is a factual determination and it is not clearly eroni your honour's the district court got it right in my two district judges got it right the morning james our from home the night who are police in the cases involving the m v to more the maritime king i'd like to just give a little bit of background facts and separate to some degree the cases that i'm involved in and in the case of these others because there is a lot of moving parts and a lot going on were involved in three cases these were only it's the tamara case as well as the vote for us the case only the vessel owners the actual legal owners of the vessel have appeared pursuant to a restricted appearance to defend against the arrest in the which is slightly different but but but but notable the charter appeared on behalf of the owner because under the charter the the chart the contract with the owner of the charter was the one legally responsible to order the fuel it was for the charters benefit the charters use the owner simply had the vessel in the charter was ordering the fuel the charter was the buyer so this charter of course if that if it allowed leans to be allowed against the vessel the charter would be liable under that contract so it's a sole domino effect so the charter in that particular case stepped up and said listen i ordered this fuel i owe someone for this fuel not two people and even if i pay one person i'm now still liable under my contract to the owner to make sure that the vessel doesn't have a lien against it by someone else the person who i did not pay for example the physical supplier so in the maritime king case the charter did pay i n g ultimately after the decision of judge forrest so there is no is no longer in that case so now we left with the charter having satisfied the full obligation of the vessel sail the fuel cell agreement is now left with a with a physical supplier who still saying well i know i didn't contract with fret the charter but i still nonetheless have a lien against the vessel and we're going to wind up trying to get a scenario where one person pays as the buyer of the fuel and the vessel pays the physical supplier merely because the physical suppliers asserting that it is the one that has a statutory lien so that is sort of the observed result that we can see in these different cases with respect to the other two cases which is the tamara case which involves septa one of the unique things that we've done i don't believe anyone else did which is a procedural will for a very simple procedural issue that it's time barred now i don't know if the panel has any questions with that i'd like to certainly stand on our papers there now of course we have heard from very competent counsel before me on the four issues so i do not really intend to continue on without the arguments in that regard with against physical suppliers arguments as to why l four should suddenly now give them a lien which it shouldn't they were simply a subcontractor the owner particularly the owners in the to mark case in the vote vs the case had nothing whatsoever to do with ordering the fuel had nothing whatsoever to do with dealing with the physical supplier except for the fact that as is customary in industry once fuel and after fuel is delivered to the vessel the vessel owner and the captain the people on board simply as part of their responsibilities file  acknowledgment of the livery the amounts on there and sign off on the blanket delivery note which can then be passed up the line to all the folks who the owner doesn't know are involved in the contract for the supply of fuel  contract party these are innocent vessel owners who are simply the victims in many cases of over reaching for parties trying to get a lien alina's so powerful this is the united states liens for these necessaries where other countries do not so so it's very interesting here perhaps the only reason maher we've been talking about leans in this particular jurisdiction is an o w contract for whatever reason i'm slightly  skeptical that it really does this but the o w terms of condition say that lean shall be decided under us maritime law which is quite interesting because frankly if we're all in acknowledgment and there's not one lawyer here who's  going to argue otherwise is leeds are not a creature of contract they're creased they're creature of statute so it's somewhat curious how is terms conditions could even say that by way of a contract they're creating a are now in a position this is the to mark ace and in the vote for us the case in him being a very in being in a situation where there is an attempt to impose strict liability on the vessel whenever there's a fuel cell suddenly the vessel is strictly liable and the vessel must pay someone that is that is the argument being put forward here by angie in the physical supplier now i submit judge force looked at this and in the context of this case the very peculiar facts of this particular case involving all of us involving o w involving i n g unlike every case before us gale head and every other jurisdiction around the country that got a chance to decide this these facts are so unique so particular and so troubling which is why judge forrest recognized that this theory of a risk is a loser e it's there is no risk here as to who was going to pay because you knew what  idea ok so so let me answer the question who would sue here so so it's a very interesting issue here so yes who would sue o w if the fuel wasn't delivered well that's sort of theoretical who would sue them i would suggest then they wouldn't have any damages that's theoretical that that's what that's why i don't understand this risk they have a contract o w agreed to do something and o w if you hadn't they could have been sued remedies against physical suppliers but the charter would have no remedy against a physical supplier in the charter's only remedy would be against o w so there is definitely a risk there is a theoretical risk say there's no theoretical risk i don't understand that because what i think judge forrest analyze and what i believe is the actual the way this panel should look at it is it's not the risk of being sued it's not the risk that you may have to cover the delta it's the risk that you are out of pocket for the entire amount of the fuel supply is bankrupt but i wonder why but they did a lousy business right and ultimately they failed on their contracts and now people are suing them said sounds like risk to me the problem is the parts too small but it's not that it's not the risk that gives rise to the lean that is that's all i'm saying is the lean would be relevant if someone hadn't taken an appropriate credit risk but supplied the writ if you had supplied the bunkers as they did in many of these cases and then the charter doesn't pay  them at risk they don't have any money that there may be part of the reason why they're bankrupt and maybe part of the reason why they're bankrupt is because ulcer they don't have liens but if they're the person who provided the bunker then the statute gives them  right in some instances that it is not if you want to go to the cross appeal with regard and because what i don't understand is nobody contests no one contested that there was a relationship down the line the contract because you said the absence of these contracts are the reason why we lose she won't even entertain it when no one contested the existence of those agreements or the relationships that were created by that that doesn't seem right to me well for one we does not have a lien here under the statute it did not supply necessaries in good faith everyone talks about november seventh as the date that we should be focusing on as the doomsday date that that o w file for bankruptcy let me tell you it was many many many weeks prior to october seventh it was prior to any one of these alleged fuel supplies was entered into that o w knew it could not pay anyone when you enter into a contract knowing you  incapable and will never be able to pay that is not the supply of necessaries in good faith and upon which the judge made your determination i went about that in our visit it was in the record we discussed at any time say that the record is not her decision her decision is what we review we affirm her we reverse her we have firm in part we reverse in part we don't affirm the record we affirm the judge and the judge's decision and i believe this judge if there was a reversal in part then these are the issues that are going to be brought before the judge in the person's again the assignment that whether or not a party who is insolvent who intention would be beneficial to have everybody have a chance to actually address them we certainly raise this and that was going to be a piece that was going to be a topic for a later discovery now now again i've read judge forrest opinion many times and i and it all and so i do not read her opinion as being solely based on the lack of the original submission of the two middle contracts i read her opinion as it is again understanding that the supply of necessaries had to be in good faith and if a party which is said there that at the time of the supply they didn't pay they don't intend to pay now and they never intend to pay that embodies the principle that at the very start when the initial contract was initiated when he was going out and marketing itself to be that fuel supplier it should have never been doing so now again so what really would have happened if you had disclosed to anybody in the industry listen we're broke we're going to enter into this contract no one would have accepted that contract and we're just saying now i n g s arguments which are coming later do you want to reserve or start using your time i will i will serve those arguments for later i think that's a good idea thank you very very judge parker i want to respond to your observation on what l for does and its relationship with the statute thank you l for does not when we're not saying that it overrides a statute what it does is make the statute operable and and l for needs to be read the big among the questions here is what does l four mean it's in there for a reason it's in there for a reason why is it there what does it do what does it mean what does exemptions mean exemptions take it out of everything it stands alone by itself what does it mean in such circumstances these conditions shall be then the physical suppliers term says we have a maritime we now how do they have a maritime when this goes to another question judge parker you had persons presumed to have a refer to the agents to forty six u s c thirty one three forty one presumed to have authority the owner the master the person entrusted with management of the essel of the port of supply how did these barges get here somebody was working for the owner and the and the physical suppliers terms say we are providing this we've shown up because somebody from the owner has the authority to say show up and so we and the new star amicus brief did a great job on this and so i'll just refer the court back to that but strict i jurist is not when you read the statute does it say contractual privity it doesn't say that it does not say that but if you need the contractual privity l for provides that except as provided in section b which doesn't apply here a person providing necessary so the vessel we are a person the provide it necessary is no argument there on the order of an owner l for order of an owner buyer or person authorized by the owner how did the stuff get we we have it's your best metaphor i have a ski climbing up al cap a tan and we're looking for handholds and that can lucky is a handhold in our briefs we don't think the admission of  the owner of that they were in direct privity has anything to do with it we just refer the court back to ken lucky but if if if we're stuck on lake charles yes that's a that's a split there but but are your judge parker when what i'm saying is when you look at all four when you look at the statute it connects it up perfectly so that the order comes through the owner there is a maritime lien and where you get to be an owner s that is correct yes through l four and the question of whether there was sufficient evidence we were summary judgment stage there wasn't testimony it summary judgment basically what we had was we say insiste and it wasn't just the insistence of showing up later but i understand what judge hate says makes perfect sense we had constituent insistence consistent beginning from the terms with which even though you're supplying your argument i want to be sure i understand for me you would it makes us a person who is providing vessels under providing assent necessaries to vessels under forty six thirty one three forty two that makes us the he that one has a maritime lien on the vessel may bring a civil action to enforce a lien is not required to allege or prove that credit was given to the vessel and again you know if you're if you're wondering what was their insistence or first we have two of these cases that are directly in interplay or one thing that is important to point out is that a donnie and a roark both had title retention clauses and they said this stuff isn't yours until you get you paid for it now how can i and she then claim i've just gone and ripped off the seven eleven and now i'm i'm i'm selling the  diapers i just ripped off and i'm entitle to that right that's it that's an assignment right well no it isn't the the only right that i and she can have let's start with those is maybe for the commission which makes perfect sense in the martin energy case in florida it's the only inner pleader case that has been tried to date and the the the judge in the martin case said at the end of his opinion he said you know this is the way it comes out it's the only way to make sense i'm going to give to each party for each of their risk what is due them and so i n g got  and the reason we pointed that case up along side with judge hates is they're the only two courts in the world that have considered l four thoroughly and answer the question what does it mean what does it really mean why is it here what does it mean what it means is it o w was going out to physical suppliers and said don't worry you will be paid we have l four in here you will be paid you will be paid you can arrest the ship and you also haven't in persona a claim against us if you're not paid but if that's and that's the whole purpose of maritime leans you haven't a persona claim but very frequently charters and owners disappear then you have the ship o w says that piece is yours for this physical supply amount that piece is yours we'll take our commission now conceptually that and again i started out saying this is the question everybody asked post november seventh twenty fourteen is the images you were talking about that and i'd try to think through how that claim is not really against the estate it's it's it's your property and you know it was your position in that regard there were a couple of lines in the shipowner's brief that said and the suppliers claims are not right because i and she hasn't been paid so therefore they have an unjust and risk claim against i n g the answer is we think they do once they're paid but in that in the bankruptcy court do we have bankruptcy the physical suppliers don't have to go to students to just get stuck with their in persona claim they're paid through the maritime wing and this is where the inner pleader does come right we're in inner players and and yes we did talk a lot in our briefs about unjust enrichment and quasi contract and that sort of thing which is because not because we're we're we're claiming against the ship on that but because we're in a concern nobody had answered the question now wait a second ship owner when you get your ship arrested bya trader why don't you ask the question did you provide value for this did you pay the physical supplier oh you didn't well in that case you get your two percent that's it that's all we owe you take it back to the district judge you with your argument we have to disagree with the they said we're going with like charles this looks like more like charles and ken lucky what we're saying is the court this court because of elf or does not have to go there bark lift didn't consider elf or didn't mention it didn't get into it on the other or the the judge in the martin energy case certainly did look at it and at the end he said this is exactly the way it's supposed to be why am i going to especially with all four give the benefit of something it never paid for it never could take assignment for it was it was it was it was like the diaper stolen from seven eleven you can't get paid for that you might get you surely would have been and will be paid for the amount of yes yes just roughly that that that is exactly how maritime liens work and so let's say we know w in the charter owners wasn't that the charter paid them a percentage and then paid them an additional money that was had to be provided to the supplier is they paid him x amount of dollars for the bankers the the contract between o w yes where the relationship has to start and that charter that contract embodied belfour and that contract embodied all for saying the physical supplier will be paid so what was it responsibility if they had been paid to do that it would be paid the physical supplier they promised way that you not paid them the only mechanism that you had the had the charter and not the only mechanism that o w would have had would have been w maritime for its commission to ensure that the supplier would be paid for its commission is that because it creates an interesting result o w has its obligation to provide bunkers and pay for them and the charter pays o w doesn't pays if he's new so w has an obligation there and it's all it's all resumes that everybody's got the money and will pay it unfortunately o w did  and in that situation the question post november seventh this now asked by every ship owner with the ship arrest is did you pay the physical supplier if the answer is yes what's happened is that the trader has taken assignment of the physical suppliers rights that's the way maritime and billions work their they're there when you pay them off you are assigned them in just about every case and that's that that's the answer and so did has o w has i n g collected money that doesn't belong to it yes that's that's what's happened they're stepping into o w says we will make sure the physical supplier is paid for it that's it that's another question but right now the we we have it we have a paradigm that's opened up since november seventh nobody thought about before which is can there be multiple maritime lien claims for against a specific ship for for a supply the answer is yes there can be under l for under l for the when these arrests happen what should have happened for example with that tamara i think there's a it's a two hundred fifty thousand dollars claim tamara gets two hundred fifty thousand and the o w entity is assigned to get fifteen hundred and that's that's what what camp a text judge and martin judge hate was only dealing with it with a narrow question but but what he says i'm i'm leaving out there the question of what the overall impact of l four is i'm just going to look at it was it was all about whether betrayed to be stayed but but when when you read that opinion you will you will say yes you know i i understand now judge hate applied elsewhere for what it was the shipowner never had any direct contractual relationship with with ek oh the supplier never never talked with him other than the fact that he kayo showed up and provided it's bonkers  that is all that all over for the oil for requires the danger that there will be multiple payments to multiple suppliers is something that might happen when there is not an l four but that's not what these cases are we're not talking about anything else but discuss a distinct contractual situation where through  or our suppliers become the persons providing necessary to the vessel on the order of an owner or person authorized by the owner that's it  let me finish up with an employer though  essentially equitable what's that supposed to do make sure that everybody gets paid what they're supposed to be paid and judge russell in your opinion you cited i think it was by judge hand and it was a opinion were there was a material man claiming a lien and then there was somebody with a persona claim and there was something else that came out of some other area of law i forget what it was and what she said was this is what in her pleaders for you've got you've got a rest of vessels you've got in persona claims you've got foreign law you've got but but here's the thing there's only one amount due there's one hundred thousand dollars that the that the suppliers have thrown in the pot sorry th shipowners the chargers have thrown in the pot and they said this is what we're supposed to pay and the suppliers say great everybody's here there's not going to be double claims there's not going to be double recovery there's not going to be a problem everybody is in this courtroom is is now represented with a claim and that what the court should do is make sure that everybody is paid what they're supposed to be paid the judg martin energy says the law makes sense and that is the only thing that makes sense here thank you