time first you're saying is that of coming back ok yes yes that's ok yes your honor it will this is this case is a complicated because there's been an intervening decision by this court about a month ago right that deals with some of the issues so i think it would be helpful to start by addressing what is still pending in this case versus what is not pending in this case there were four issues brought up for appeal by american seafoods with this one of which has been resolved conclusively that had to do with a set of summary judgment standard versus a motion to compel standard on a maintenance rate this case involves in broad a sense how do you determine a maintenance rate for a seaman decision which we had believed was decided by this court previously but has been opened by the courts around the country to revisit those it appears but when we think we know from barns we look at the cost of maintenance on land as opposed to board the ship right yes in part your honor ok and you all thought it was thirty and a district judge found it was thirty seven dollars ninety seven cents yes well and then of subsequent ruling that you gave two different rates which is part of the problem with the courts approach well i so what am i wrong are we dealing with the thirty seven ninety seven are we dealing with a different number well the court adjusted because of mr say about his rent he tied it to his rent and because his rent had changed he at first entered thirty seven ninety seven then he entered a number that was slightly different for a different period which is the reason why point part we are here today so how do we review whatever number  you're you're fighting about how do we review the judge's determination under what standard of review well because the court has now clarify this a summary judgment motion the clearly erroneous standard would apply to the t determinations ok so if we apply the clearly erroneous standard didn't mr say bow produce evidence of his actual expenses he did produce evidence of the actual expenses your honor it may be terrible evidence to you ma year i thought you have presented evidence something single rooms for last but not a one bedroom apartments we produced evidence of shared living arrangements right ok and whatever the evidence in addition to other evidence whatever the evidence was it was basically wanting it was not yes so on the one hand he comes in with his his actual expenses and the other hand you go to the newspaper and you find a bunch of bunch of want ads for descriptions of similar places we don't know that they're similar because nobody's looked at right well as far as the as for a for this particular piece of evidence because there's other evidence that was introduced for the motion but for this these are offers to rent primary issue on this appeal that still exists is essentially whether the standard is a inborn is termed as reasonable ness you get a reasonable rate there's a sliding scale here actual expens way tell me math was going to be involved but i want to make sure i understand the record i don't understand this i did just this record to show that some of the ads that you produced showed a rent rental rate higher than the rate that he was paid is that correct no your honor i would i would not agree with that characterization one and for example the primary ad that pointed out by counsel says winner rates share the share the utilities costs and the winner rates are this well utilities go up and down during the year and the math when it comes out to still shows that the thirty dollars rate was acceptable within that no no what i'm asking i'm asking whether or not there was evidence in this record that similar similar commendations to the ones that mr say bad could be rented in that town for more than what he was paid yes and we would we would agree with that your honor because the reality is is that and this is a problem with the use of the term reasonable miss and we were asking this court now to drill down on that issue because what's reasonable to someone who makes two hundred fifty thousand dollars a year maybe living in a single bedroom apartment or even a shared living apartment in a scholar here in downtown seattle is different from someone other lesser means we're dealing with a summary judgment record i'm trying to figure out what question of fact you think your evidence produced as i've looked at your evidence you showed a wide range of of rates you said these are ones the court should consider in determining what the reasonable rental rate is some of them showed a rental rate slightly higher than what mr say but was pay most of them showed a rental rate below that your evidence let me put in he comes on and says here's what i'm paying and that's prime aphasia it's two is that enough to create an issue of fact and what's the court supposed to try let me let me let me characterize the other because we're focusing on one portion of it there were four different elements of the evidence put in and if i could start with the rule that i think is the rule set forth by the supreme court and by this court previously that the rate should be tied to the food and living expenses comparable to what's provided on the shelf with those cases fries it my understanding is as i was saying before i think your contention is money wasn't entitle to have a one bedroom apartment what we're fighting about in this issue is that standard your honor whether in the fifth circuit in the hall which the lower court adopted and said essentially they didn't  no barnes did not your honor and that's why that issue is still here and this panel will need to address that issue the lower court found similar to barnes that after explaining why i thought that there was no no longer it made sense to historically going back to in this case would have with the law going back to the calls of oleron in the middle ages it's always tied to what's provided on the ship so what we're or what we're talking about is  shared living arrangement and what the evidence that your honor would refer to as far as these this is a these are shared arrangements that are even more generous as want to provide on the ship because there's four people to a room that would be something more like a hostile situation  and the purpose of that particular evidence was to show that even in a more generous share living arrangement that rates were still similar to what american seafood provide it that said there are three other piece of information we provide it one is that washington been in a range of twenty to thirty dollars per day there's also rates that have been evidence has been submitted in those cases and that was between twenty and thirty five dollars a day this is evidence that through expert that your opponent says the twenty five hundred dollar payment is no longer at issue is it still issue in your it is your honor the twenty five hundred dollar is an issue and that's whether an advance can be set off against a future award of specifically set off they were the arguments in this case were specifically preserved so they and then i want to understand you haven't gotten credit for that twenty five and that's correct your honor you have and have not we have not gotten credit for the twenty five hundred i was paid as an that these issues were carved out that for purposes of this appeal where you make carved it out but if if if if you already paid if they already paid it in effect to you by taking it is it giving you a credit in other case district court to determine whether you already got it yesterday or the ok correct that's ok second issue i'm not sure you can answer this is quickly but your position is that there should have been a trial that should have been a trial on the maintenance rate ok under the evidence showing that he said that because the evidence that you that you produced created a material issue of fact about what a reasonable mean injury ok yes in our in our position that's correct your honor right so well you're still arguing for that anyway and saying then that ho was which defender of the rejected that the ship analogy as i understand it spawning that that that's not the way the world works these days you're saying accommodations would be for this person on land as opposed to unship the shoreside equivalent of what an example would be your honor is this i counsel and i have a case in which a seaman has a three bedroom townhouse t it your position that the comparable accommodations on land ought to be a place with four people the the our position is that this allowance city of av one of this court said recognise that maintenance is simply an allowance it doesn't cover living call actual living costs but what that should do is say he said i'm not particular and i think you know a lot more about maritime law than i ever will thank god and but i'm really asking a very simple question  what your position is your position that we're supposed to look at him living with what it would cost for him to live with four other people in a single room or we look at what's reasonable for a single person to live in in the absence of his prior accommodations the former in this particular case in this particular scene you think we're going to tell you that is i'm sorry you think barnes tells us to do that no barnes does not tell to do barnes doesn't get to that point bourne's bourne's adopted  the court before getting into the needier issues i'd like to address the advance issue if permitted by the court i would be more than happy to supplement the record with a copy of the settlement agreement in mr c well here's here's my problem it's not in this case maybe you can go back to the district court and have have the district court sort that out but at least as this case comes to us there's a fight about this twenty five hundred bucks they say they advanced it you really don't dispute that they advance to them yes you're ok now that said so you do the two of you agree at least on the status of the record on that yes and there we couldn't submit the so settlement agreement as part of the record because that settlement was reached long after all the briefing and wh back i think the court could send it back on the right because you agreed that it was an advance agreed and in the absence of you having credited to them and some other place you that we have to reduce the award by that amount yes your honor however this wasn't raised in any of the briefing but there is a maritime rule against some of the i don't want to i don't i have a hard time understanding maritime rules that were raised in the briefing so let me let me get back to what i the west point i asked your coll about you put in some evidence about his actual expenses yes they put in some evidence i will characterize why is why was there issue of fact created by that massive evidence that the judge had to make a finding because your honor they submitted evidence of rooms which cost one hundred ninety five dollars per week and two hundred dollars per week and both of those rooms exceeded the cost of mr say both eight hundred dollars a month apartment in designated low income housing which required  their actual reasonable expenses including the cost of a one bed so someone had one partner correct and in block island the first circuit recognise that it's only the exceptional case where a seaman will not get his actual expenses and that goes beyond just a one bedroom apartment but they did but they didn't decide how we figured out what the actual expenses how we figured out whether what case was exceptional or not so they say we put a bunch of evidence on again i'm not going to characterize their evidence and you have some evidence of actual expenses at what point do we reach or triable issue of fact or is that to tell me how we apply these rules i was say there is a trial triable issue of fact once there is evidence that  rate does not exceed or does not exceed the seaman's actual expenses in this case american seafoods never once took the position that mr sables actual expenses were unreasonable in all of the briefing below and evidence was that there were other places that he might have chosen instead that were slightly cheaper maybe in some cases slightly more correct and i think i put an example in my briefing that if there's one gas station that charges two seventy nine on one corner and across the street there's a gas station that charges two eighty five for a gallon it doesn't mean that the gas station charging to eighty five isn't reasonable there's a range of reasonable expenses and any expense within that range should be awarded as maintenance and if there isn't an issue of the rate i'd like to talk about this if the court is concerned about the shared living arrangements verses one bedroom issue but if not i'd like to move on to the summary judgment standard well just a minute but back on that ye do you understand barnes to have it doesn't quite adopt that part of the hall and says a one bedroom apartment is fine right and doesn't it through directly repudiate this notion about having to be comparable to the ship or whatever and just as reasonable living expenses but barnes does not discuss that portion of hall but it does say the hall is roundly accepted and barnes night say only portions of hall around the excepted but it also  but there is language in earlier opinions about this shit comparison which yes your honor and the way that should be interpreted is if there is something that has an on land analog that is something that's awarded for example having a roof over your head that something where there is a ship board analog having food that has a ship board analog cable television there is no shipboard analog cell phone no shipboard analog and so those expenses are not included in maintenance but the expenses that have ship board analog are included in the maintenance calculation a place to sleep correct i don't have over your head but in any event you would say it all doesn't even matter here because some of the  what they submitted with regard to individual rooms is still at the same rates that he's paying for the one bedroom apartment correct and it's somewhat problematic to consider someone living in low income housing to have an unreasonably expensive living arrangement that's the lowest expenses available in this community the rate that american seafood sought to pay was beneath the federal poverty guideline to expect a scene and to live on less than that is simply a not when in this case there is seven dollars ninety seven cents more than american seafoods was paying that say both saat and barely more than the federal poverty guideline and they're still here saying they should have been able to pay less they month for a portion of the period that he received maintenance and it was increased to eight hundred dollars a month later on and the award for the portion where his rent was seventy seven hundred seventy five dollars per month related to that amount of rent and then when it switched to eight hundred the position that mr say those expenses are unreasonable yet we are here today if the case law is clear that if there is not a colorable legal theory on which to deny maintenance then attorneys fees should be awarded no what point whereas was it unreasonable for them to argue before barnes that thirty dollars a day was a reasonable means well your honor that was never the question it's not whether someone living on thirty dollars a day was incurring reasonable expenses it's whether thirty seven dollars or ninety seven cents per day it's reasonable that their position was as i understand it she there's been a lot of these decisions involving similar situations in this district and the awards are normally thirty dollars a day so we're offering thirty hours a day because we think that's a reasonable amount why is that an unreasonable position before barnes there are also decisions awarding much more one case awarding ninety dollars per day is foss maritime company versus easily it was heard in this court i believe in two thousand and eleven or two thousand and twelve that's a ninth circuit case but their position has to be essentially frivolous doesn't it before for a stored fees baseless correct is it really baseless to offer offer an amount that a number of seamen in similar circumstances have received it may be wrong it may not be reasonable as applied to your client but it is baseless it is when the seaman has given evidence of the actual reasonable expenses and in this case seven dollars ninety seven cents isn't very much money it's not very much money to anyone involving the government or say about the real problem here is that they're not interested i mean that they are not interested in the seven dollars and the seven cents they're interested in seven i'll sign a seven cents for you know hundred thousand for thousands of people over the years right so obviously in the way they permit a gating it is not accounted for by the amount of money in this case but does that matter it does your honor american seafood is seeking a mechanism to squeeze seamen who also have jones act and seaworthiness claims if those seamen are also be receiving less in maintenance than they need to pay their rent or pay their mortgage and pay for food and keep their lights on the no seaman are in a very difficult situation and this gives the vessel owner leverage to prevent them from fully pursuing their rights in other it was advanced in the in the other case it was credited against the other case i for one would very much appreciate if you could see if you can stipulate as to that issue if you can't then fine we can decide it but it strikes me that i don't want to have for us to look at actually have to deal with an issue that both sides agree may have been taken care of but isn't technically flying over so i would urge the two of you to talk about yes you example of no good deed goes unpunished the point that we were making in submitting this evidence is that this is a shared living arrangement but a greater share of living relation to what it is that we were showing that even at that rate where compared to what he was provided on this fishing vessel at that's correct your honor one thing i will add here is that just to clarify the primary issue for this court to decide that's left over from barnes has to do with whether it's this food  evidence of it in a record as to a single bedroom and if the court decides that that is the appropriate standard for figuring out the rate then then the court was correct in ensuring that the order we would agree with that we did not submit submit evidence to show because your evidence is even with regard to the single room it was still raise your right there was a single room for one person right so therefore you are all timid baseline position is that they're correct comparison is to a shared bedroom right your time is up thank you very much i thank you both the case of versus american seafoods company is to mid and we will go to the last argued case for the day