passengers from its home port at the port of new orleans here in new orleans during the relevant time periods applicable to this this issue norwegian spirit embark passengers from the port of new orleans for ten months preceding the spil of sixteen months preceding the spill and eighteen of twenty four months after the spill as a result of the spill norwegian spirit had cancelled reservations while not required in the in the in the settlement program i i put into the record it three three eighty two to four hundred a spreadsheet detailing lines and lines of canceled reservations after april twentieth of two thousand and twelve or two thousand and ten just because i thought it was it made sense to show that after detail as a result we had economic loss economic loss that fits right in the framework squarely within the framework of this of the settlement  program after the detailed briefing before the court supervise settlement program appeal panel the appeal panel agreed and issued a very detailed recent opinion following fifth circuit precedent finding norwegian spirit a member of the class in zone a in tolerance of business economic loss and notably it it quoted a quote that i like quite a bit said if any cruise ship deserved membership in the settlement class of this agreement it was the norwegian spirit a vessel which had a contract by which it embarked and returned passengers in new orleans field staff and supplied itself in new orleans and otherwise exhibited itself as primarily a new orleans based vessel going further even though not required and consistent with me putting those those the cancer reservations that said the causation of hardship by the spill is not relevant to this inquiry this panelist could very well find a cause and effect relationship between the actions of norwegian spirit and the subject still i take it to the term home or it is not an industry term for it i'm i believe it is an industry term in the appeal panel right squarely before the appeal panel was competing expert reports there was an expert report that speech he put in themselves and then we responded with two expert reports and the appeal panelist analyzed those expert reports and determined that the term  registry and the term home port are not synonymous and that a home port for a cruise ship vessel is the port at which it embarks and disembarks passengers but what's what i believe is important for this court in its is is the standard of review which is competing experts on the definition of home court and whether it's synonymous with court of registry that is important because the when you look at ambiguity in a contract you can look in the fifth circuit as as i'm sure you're aware at expert testimony to determine the definition of a trade term or trade usage of terms of one of them was home court which is what the in so long time ago judge higginbotham issued an expert that's a come behind issue of fact and law i'm not and they weren't sure how it should go and they were find it a little bit but what's important here is that the district judge did not address it expressly didn't consider that an separate and so as we sit here today the district judge while it exercised discretionary review it exercised it on a threshold contract interpretation issue and if you find in favor of norwegian spirit on that issue which do novo review then this court can reverse render judgment reinstating the appeal panel decision who did all the factual finding and all the work related to looking at the expert reports and looking at all the briefing importantly he provided an example in the record but i also think that that there are significance of registry in louisiana their certificates in texas their certificates in florida and so some of those may say homeport some of them may not i haven't found any that do i know that our expert put one at least one in but this is the issue it's essentially a drafting issue error and in my view because there are only three crews often that you know if there  there is a port of registry and b p presented the position to the appeal panel that the port of registry was synonymous with home port and after doing experts it is in fact not synonymous supportive registry is kind of like your birth certificate your nationality your only looked at one issue and i think going back to the definition of home port carmel had already thought of a lawsuit and settled rollkur the b p knew that the cruise lines were people who would want to have a claim they didn't exclude the cruise lines but i only claim that norwegian cruise line is filed as this one and i represent norwegian cruise line have been there from the very beginning before we file the claim i flew down here looked at the passengers in parking in december working to see what our connection was to this is own a day at the port of new orleans i took a hundred thirty six pictures and they're in the record just so i was comfortable that this ship i looked at all the ships this was the only one unlike royal caribbean they fall for all the ships that touch gulf coast waters i fell for one because i was home ported at the home port important new orleans i even have a home porting agreement with the port of new orleans that was entered into in october of two thousand and eight home port operations for three years those factual issues that were resolved by the appellate panel in the district court well it this is this is a unique case because of the dozens or hundreds of appeals every one that i've seen except for one and it was one that judge stewart chief judge sure that you presided over the opinion issued on january fourth was of the district judge denying discretionary review i know there's been some arguments probably of others but the opinions haven't come out but in the one that the opinion has come out that similar posture of ours it says that the appeal panel ruled one way the district judge exercise discretion and overturned on a contract interpretation issue and this court considered the contract interpretation issue and it was an ambiguity case requires review of the extrinsic of expert testimony to determine an ambiguity and then review the extrinsic evidence to resolve that ambiguity that is where is the ship home ported the second one in the district judge excuss discretionary view but the district district court took on an issue related to the definition incent of section thirty eight if the settlement agreement says home ported shall mean the home port of a vessel as documented by two thousand and nine or two thousand and ten government issued thus registration now interestingly the what the district judge did was he took that he said that is a exclusionary definition and it says you cannot if you don't have it it is an absolute you must have this and if you don't you have no claim and that's the end of the story but that's not how one that's not how the thing in the agreement house has been interpreted has worked but two it doesn't make sense because the by defining homeport the way it did and this is a definition that norwegian prison was not a part of it was b p was was involved in the drafting at least to it's the incorporation by reference doctrine it says it incorporates another document to define us so when you're supposed to read the two together so i think the way this should be looked at is take the settlement agreement insert in the well known region spirit on one side e p on the other an agreement between the two the definition home port of the vessel as documented by exhibit a and exhibit a would be our vessel registration our vessel registration does not have the home port written on it that's not in dispute it says it has the port registry that's where it was built but it does not have our home what that's the plain reading that's how it should be interpreted but to go a little bit further the district court read into that definition exclusionary principles that you're out but in this case this  summit agreement exhibit for a is titled documentation requirements for a claim and an exhibit a it has all sorts of document requirements that you have heard argument over i heard one yesterday related to fixed and variable and coggs well in that situation you submit your documents that you have and you submit your profit loss statements and they may have details for fuel rentals they may have those together and then the claims mr comes back to human ask you if you have receipts that you can spread those out the essentially the claims administrator gets to the bottom of it and keeping miking the same argument if the document did say home court in it said home port the bahamas i would you know i would i thought about this yesterday i heard the argument that substance should prevail over form and i thought that's a great i never really thought of that that's my case and then i thought you know what my case isn't substance or for my cases substance or silence my case has substance over ambiguousness but even if my case was substance over form i'd be here making the same arguments that were made yesterday that substance should prevail over form because my shit is home ported if you look at the operations beginning on october thirty first two thousand and eight for three years and opposing counsel would point out that it allowed us to use a different ship which is why i put the i ten or area to show that that ship was there any one of us during that time period could have walked over two or three blocks and seen norwegian spirit there embarking to support the passengers every week we don't have to go with far as we say you don't we could say well that is an exclusion if the document is to the contrary you can't  this is assuming argument or should we send it back you know that was an issue even in gulf seafood if i recall i'm remembering right if there was a viewpoint that people thought we should remain and the dissenter a sitting judge judge thought we should remain and for the district court to construe it correctly in the first instance i think here that you should not for for a couple reasons but primarily the district judge exercise discretion and said i' in one way or the other i eat this court defers to the appellate panel's decision there and decides on some other grounds i think that if the court was to do that b p would have needed to file a cross appeal arguing that that should have been determined by the court of the piece by the district court and that would have been a review of clear of the abuse of discretion standard is this going to repeat itself and it's not because we're the last cruise ship that could possibly file a claim so i don't think that would indignity that we heard this morning and you put them there to rest using the simple language of the settlement agreement which was stretched the settlement class to vessels that were home ported in the gulf coast areas critically as documented by a two would lift the home port well let me a may have been an assumption that many certificates of registry would list the home port and deciding that if you can document your home port in your government  industry action a single document easily reviewed easily obtained easily manageable for the claims administrator to handle thousands or hundreds of thousands of claims you know that would have been a very reasonable way for the parties to decide that the settlement of the claims administrator had to make that decision in other words to avoid the situation we're in now where the claimant is asking for the for the claims administrator to have to consider for every type of think is appropriate here because the the settlement agreement is so clear but actually it's it is still some of the subject of dispute and we put in the extremes of governance in the appeals panel that the port of registry is frequently the term used for home port there's case law in the united states federal courts we cited two cases he's versus pacific mail steamship and japan line versus city of los angeles both of which i mean he clear it says the port of registry is the home port because that's where the owner is located and you know it doesn't matter if the ship is frequently away from the home port japan minders the city of los angeles s clear well we're always wary when lawyers say things are clear otherwise you wouldn't be here i hear you but someone would judge davis was i mean would cruise ships i could see were other kind of vessels that purposes but yet homeport may be indicative of where the flow of past years etc etc you argue that this is a static definition that he anticipates the boat will be home ported in various places in the gulf coast or will we have to turn back to the language of the settlement agreement section one point two point three and section thirty eight point two thirty eight point eight two or the key language here and read together they restrict the settlement class to vessels that were home ported in the gold coast areas as documented by a two thousand and nine or two thousand and ten government issued vessel registration in other words that section one point two point three that you are looking at judge davis incorporates the definition of home ported in section thirty eight point eight two which defines home ported as home ported as documented in the two thousand and nine or two thousand and ten government issued read  registration and i think that language in the point eighty two is really important it says as documented in the two thousand and nine of two thousand and ten government issued vessel registration it doesn't say for example as documented by a two thousand one hundred two thousand and ten government issued muscle in just ration or as documented by a two thousand and nine or two thousand and ten government issued vessel registration or some other evidence that the c s s p might find useful to this analysis and that's really important  context of this settlement agreement if we were to do its substantive review of this rather than your textual analysis do you concede that this vessel meets the home that it was in  fact home ported for the it was more here than anywhere else during the relevant time period not italy or wasn't it technically more here than anywhere else but that the days if you put the number of days it's more than half the days back to the question that i asked you seventy five days during the time period for the class versus twenty seven days in boston i understand that the time period used by the claims of minister was forty seven days horses fifty one days but still that's a significant amount of days in his home home in new orleans what's his or what's wrong about that date to distant because if the court was going to consider it strains of evidence about where the fossil was located it would have to start with the question of what time period i have to look out to can write it up question it's one of two time periods that you could pick right april twentieth two thousand and ten to april sixteenth two thousand and twelve which is the time period in the settlement agreement class definition or you could pick two  nine to two thousand and ten the time period used by the claims administrator which one do you prefer i think it's both the such a good point eighty two says now this is an unusual situation we've got to define time here and we're saying we're going to use extensive evidence to figure out what the ported in the gulf coast areas for either the year two thousand and four the year two thousand and ten is it is a prerequisite to class number ship that's in thirty eight point eight two neither the berthing agreement nor the itinerary so that that happened the birth two thousand and ten in the gulf coast areas to c s s pete did address this issue and not record on a pos sixteen sixty nine sixteen seventy two and sixteen seventy three it closely analyze that question and what  that in both of those years the norwegian spirit embarked on more voyages from boston in quebec than it did from new orleans it also found that in both of those years the norwegian spirit spent fifty percent of its days at foreign port  that's deficient in therefore it wouldn't qualify under a substantive test absolutely and i mean this is the problem with using hawkeye using extrinsic evidence for this for this exercise you're saying forty seven not enough because boston gets fifty one during two thousand and one to two thousand and ten that's right now because you could have multiple home hearts because the the definition the judge davis read for you didn't it said was home ported during this time period it didn't say was the most home port and the only home border exclusive border that's only dating sites and one point two point three which has to be read together with the definition of human that word after section th definition of class eligibility uses the term homeport of capital in top of a capital p which is defined in thirty eight point zero to understand your argument on that but i don't necessarily agree with that well the  home port of definition in such and thirty point eighty two you know we courts construed settlement agreements on all contracts of course not to render any provisions superfluous i mean as this is the key use of the time home port is what does you know can use extensive evidence to better understand the meaning of home ported in the settlement agreement and we would go back to the point that you know and i think it's critical as you were i think getting a judge gave us the way this is out why been the settlement agreement it assumes that the home port is going to be documented in the government issued vessel registration even though of course it's possible for vessels to move around so that as documented in the government issued  expert put in but the council searched for other registries that list home ports and could find that hurts your argument though the fact that the terms never hardly used and then it would mean that you could never have a cruise ship the qualified it i think what it would mean your honor is that what the parties met intended to do when they said home port even the governor as documented in the government issued vessel registration was to refer to the place that's identified in the government right but if they don't do that if they don't list the home port in most of the documents then that means that most all the people are out a lot even if they were properly in new orleans think most we're talking about most all of the people here i mean we're we've got three major police lines none of them are class members apparently that's a consistent result but with a hundred fifty thousand planes there's i'm not talking i'm talking about cruise lines the if the definition was meant to say we're going to exclude cruise lines because we're going to pick a criteria the cruise lines as a matter of business conduct cannot satisfy except for one in a blue moon and by that way defined cruise lines out of it when it looks like what you're doing is making a bright line test for cruise lines but really what you're doing is making an exclusion so that no cruise line can ever qualify except this one that you said is highly unique and that's that's i don't know that that could possibly be the purpose of the settlement they went through all this with the cruise lines will the purpose of this i don't know was to result of claims of class members and to do it in a way say they were injured you know aren't able to claim under the agreement and that's just a fact of the way the agreement was drafted it could be because they were employed by a defendant in a twenty one seventy nine days it could be because their industries interpreted to be you know a financial industry or a real estate developer it could be because they filed late but but you know what we heard this morning from norwegians jet was a lot of argument about i took pictures i was present in the gulf coast areas none about languages and  indication it would be yet a new certificate to read for every time maybe they went to a different port in the gulf coast area that's ok if they didn't get a certificate of registry that's just fine and maybe cruise lines don't have to do that but the right result would be for him to have the chance to first consider why can't we do like good gulf seafood and just look at it ourselves we did that over a dissenting judge and said that was perfectly fine when it's all there already you know it topic but it wasn't an issue of contract interpretation there in the same way this one is and we've got expert reports we've got itineraries we've got the birthing agreement there's a lot of material here that just hasn't been engaged  instance the district court should be able to address and i'd just like to say around it that the settlement agreement doesn't require the claims administrative to decide what the home court is all it has to decide is whether the two thousand and nine of two thousand and ten government i could just address a couple of the issues that my posing counsel raised first the case law that she cites those are that's tax law related to of awaiting taxation in multiple jurisdictions we were the other the issue panel reasoning but she just quoted where they were they were summarizing the piece arguments so she quoted it as if it was the kill panels decisions but it was really the appeal panel summarizing the piece arguments then the appeal panel summarized our arguments and then again said this penalises further persuaded in finding the eligibility of norwegian spirit for class membership by the claimant claimant friendly provisions and then found in our our way on home port in the time f as between determining two thousand and nine and two thousand and ten versus two thousand versus the expressed dates in the definition at any time between april twentieth two thousand and ten and april sixteenth two thousand and twelve it says that in any time during that time period and we were during the time period we were there eighteen out of twenty four months it was it was an enormous amount it was over two thirds in fact we have the home for the agreement with the port of new orleans other the other times here it was a seasonal trip to boston we don't we have in the record we have a letter from the boston what authority that says they don't have a home  with no region spirit the opposing counsel mentioned some things about we could have done what carnival did but carnival sued before this settlement agreement ever even became remotely thought of and so that came in wint i think that really just operates to my benefit they knew cruise lines had claims they settled one with carnival they did not exclude cruise lines royal caribbean didn't have a ship home port in the port of nor in any any port there's only a couple cruise ports that could even be in the gulf coast waters one is in tampa and very few ships embark in disembark from tampa the other one is in new orleans in new orleans there's two terminals and carnival is in one and a norwegian spirit was in the other during this time period the and then i think the most important thing here is the difference judge  asked if we should apply difference and i think absolutely in this case this court should apply the difference to the appeal panel decision but because you want to know for my name in deference to them i do i do because the novos is is the view of contract and the one that the district court did not address was all of the factual issues that would be a review here on clear was a very very compelling argument one because of what it said too because it was with a government authority the port of the port authority of new orleans as a cause like government authority and three because it was subject to the approval of the federal maritime commission so while i think it's very compelling i never took the position that it was a government should vessel registration my position all along has been that the agreement is silent at best ambiguous or ambiguous either way you look at expert testimony determine whether ported registry is synonymous with home port it is not i would invite this court to do what judge over it suggested possibly doing and looking at that issue because i think it is a very very clear issue and then