the tragic death of eleven people and poured more than two hundred million gallons of oil into the waters of the gulf causing an environmental disaster which in turn cause financial damages to individuals and companies well caribbean doing business in the gulf region unlike some claimants that this court in particular judge clement have raised concerns about where claimants have attempted to achieve class status who get compensation even though their businesses relocated hundreds of miles from the gulf waters were all caribbean in its business was in the gulf waters and it ships move through the gulf and into gulf coast area ports world caribbean was directly affected when its passengers failed to buy tickets depending on the beauty of the gulf coast waters royal caribbean isn't the highly favored tourism industry it was exactly the type of business the settlement agreement was intended to compensate indeed the cruise industry like world caribbean brings large amounts of tourist dollars into the region through its passengers coming through gulf coast ports concentrate my argument today on the main contractual issues the appeal panels misconstruing the seven agreement by applying section one point two point three as the exclusive eligibility criterion under which royal caribbean's cruise ships could be considered while caribbean cruise ships are in essence city sized floating resorts that include restaurants which are eating facilities hotels which are lodging facilities shopping malls which are shopping facilities as well as entertainment facilities even admits in its brief that a business could be considered both a facility and a service business but it's only the vessel that they claim exclusivity over but there's nothing in the wind which of the settlement that would lead to that conclusion that a vessel is an exclusive criterion indeed b p s argument turns to settle agreement on its head the settlement agreement is set up as a an inclusive with inclusive criteria and the way it's set up under one point two is it says all into ts are eligible if they meet one of the settlement criteria now b p s argument would have that as an exclusivity and say if you don't meet part of one definition namely if you don't meet part of one point two point three the whole ported part you're out so that it's essentially a single limitation or a minefield where if you hit something you're out that's the opposite of how it's set up it's set up to be inclusive so that if you meet any one criterion you're eligible indeed the claims administrator was required by four point three point one four point three point seven four point three point eight to assist the claimant to achieve eligibility wherever possible and to process the claim to produce the greatest compensation i mean if you're if if if we were to of to say that your vessel or are common sense of what they meant when they required a professional be home ported in that the logical region they would require a vessel to be home ported in order to make applying mccarver you know who a facility which is a very broad definition or it was very very broad term it's undefined in one point two point one i and means it in the common parlance a place where activities occur such as business activities but the activities are restricted so that a facility is only considered eligible if it sells products to in users or consumers in the gulf coast area so that's a much narrower view of the type of facility that can be eligible by contrast a vessel that include a container always bringing containers to and from the gulf no that would would not meet the definition of facility because the the ship is not selling products so no it would it would not meet that definition by whatever is in the container is some sort of product indeed or arc however the sale of the products is not being done by the ship the ship is not selling those products or the owner of the ship is not selling those products so the facility is actually well narrowed to the sale of products again in the gulf coast areas it seems to me isn't a facility  location in one location as opposed to a ship that's going all over the place a facility and the ship is floating around so does a vessel meet the definition of a facility yes it does your honor and if i'm explaining why the first the definition of the cod is undefined it's a small f term and one point two point one in the settlement agreement requires that defined terms use a capital out later in the agreement there is a definition of capital f facility and the capital f in exhibit five the capital f facility is for purposes of that definition for a multi day facility claim that's the capital f definition that b seizes on here to try to argue that that a facility must be in a fixed location so for but for perp exhibit five kind of imply imply there and i don't know what we one location to try to meet eligibility for example a car dealership that might sell both used cars and new cars and perhaps they can meet the causation test that you're familiar with if they look at only one of their lines of business for example if it has a separate and distinct location another want somewhere else you could look at those independently so there's nothing in the mall type of silly business that requires a single fixed location on land as bt would argue it's only two separate facilities and indeed our ships do meet that definition because each ship is a separate and distinct location from all the others and separate p l c so that the claim filed for a single ship is a separate and distinct location it's also a location because that's how passengers find their way to the ship they get on the ship and in that location and not any other now in addition and this is important under the the if the requirement  small f facility and one point two point one was read to mean a single point on the way in a fixed location and we don't think it is that's only for the multiplicity definition that would in essence remove from section one point two point one the term specified gulf waters if i may make an illustration i provided panel with a couple of exhibits it looks like something c s i would have printe very nice and colorful but your honor it's right from the website exhibit exhibit twenty three is the definition of it is the illustration of specified gulf waters exhibit twenty two is the map of gold coast series now one point two point one one point two point two both provide for eligibility for a facility or service business doing the business in both the gulf coast areas or the specified gulf waters by contrast very important one point two point three and one point two point four restrict the geographic eligibility to always gulf coast area it's so that if you read the facility definition to only fixed point you would read out of the definition all of the blue in exhibit twenty two and indeed that would expunge from this settlement all claimants from the entire geographic area that's probably two thirds of the entire sides out in the blue so there could be no claimants who are who are facilities in the specified gulf waters if you require that six point indeed whoa caribbean is a facility it is a place of doing business separate and distinct from any other place of doing business and it does business not only in gulf coast areas when it's important but in the specified gulf waters so it absolutely meets the definition of facility requiring a single fixed point would read the term specify gulf waters out of one point two point one and indeed we would lose all of this blew from the settlement agreement in the me ask the new in a couple of cases we iranian by the appeal panel for not for no other reason than you would read out of the settlement agreement in one point two point one and one point two point two for that matter any facility located in the gulf coast  specify gulf waters and any service business and stuff like gulf waters so it's simply incorrect to narrow the or to require the fixpoint in land which was the the principal point different issues the one the alabama radiologists where some radiologists work outside of the gulf coast areas but had some activity in someone else's facility and somebody else hospital facility within the gulf areas attempted to claim that as their own facility and the claims administrator rejected it and consistent for sixty seven that was an appropriate rejection that they did not properly own lease or operate  p agrees in its brief that we operate a service business and that you can be a service business for both one point two point two and one point two point one we think that's critical because that shows that there is not exclusively but b p undoubtedly offers services in a service business to its cruising consumers and it does so with its employees giving their full time services in the specified gulf waters so similar to a facility if we read section one point two point three to exclude service businesses we would be reading the specified gulf waters out undoubtedly royal caribbean is a service business doing its business with full time employees in the gulf war p argues that our definition would read the home ported definition out we believe but that's not true it's an expanded definition home ported allows all vessels regardless of their type of business to be eligible without any further questions asked so we think that's incorrect industry is one of the excluded industries here so we think that's incorrect there are other examples that we offered where a facility can include a vessel including the americans with disabilities act so the ordinary parlance in legal terms you have another venue to recover or at least try to recover ok thank you i still live mexico really six a windfall a windfall based on a contorted reading of the settlement agreement that is plainly inconsistent with the language of the settlement agreement and basic canons of contract interpretation and it is not surprising  consistent with this court's admonition last year the judge bar b a not here must avoid hearing appeals there present no pressing questions as to the settlement interpretation of the agreement will caribbeans claim which is is completely a perfect example of an appeal that would not raise the type of pressing questions that this court said judge barbee should hear there is no split amongst the appeals panels as i said before and this court in holmes motor last year laid out criteria for what an appeal should be what kinds of appeal should be looked at for abuse of discretion and they gave two examples where there's a split of the appeals piles there's not only no split here unanimity by the appeals panel judges sitting in on b or whether this was an issue  even some of the cases they cite this from this court this court gave context what that means in the context of the settlement agreement as far back as two thousand and fifteen in reported opinion which dealt with the very important question of whether an individual can claim and can also be a bit well there bill claiming a business claiming could also file an individual economic loss claim this court said this is exactly the type of cases we want to we should be hearing abuses discretion by not hearing because it would have a broad spread a broad spread of pluck ability to many many claimants and in that case there was a split amongst the appeals panel neither issue was present here and in fact this court s homes motors any interpretation that turns the discretionary appeal of district court into a mandatory appeal mechanism would frustrate the very purpose of the settlement agreement and any claimants cla review where you stand a review for a contract question can be do no bow but you also said in the context of this this this settlement agreement if there is no pressing question if there is no important issue as to the settlement of the ministry of the agreement or split amongst the appeals panels you would turn that very view of the judge into mandatory review and that would not be proper and i'm suggesting here that we can stop right there because there was no abuse of discretion but i will address the merits of the argument the argument  the this one last point on the discretion on the discretionary view and abuse of discretion this is not a case where where the issues raised by royal caribbean will have widespread ability to the settlement agreement absolutely not the settlement agreement has been in place as you know all too well for over five years you're going to hundred and fifty thousand claimants and no one until now no one has raised the suggestion that a often be a facility that there is some concept in the settlement agreement a floating facility and it won't likely be raised by anyone else is the only other cruise line that simple seems to be similarly situated was carnival in carnival which is file a protective lawsuit and asked that the lawsuit be held in abeyance till their their class eligibility was determined they they just they made a conscious decision the record is replete with references to show that they were well aware of the opportunity and the option to file a separate lawsuit and they skewed that strategy for whatever reason maybe it's because they thought they could sneak into the settlement agreement they would have to deal with causation issues that they have to wonder i don't know what the basis for that decision was but they made a conscious decision davis and look at the parties were trying to do it becomes very clear whether there was an or whatever conjunction they use doesn't really matter if you step back and you look at it section one point one was doing with individual claims the parties in section one point two said how are we going to deal with class eligibility and class membership for economic entities and they said it's very clear they were hoping they were addressing entities doing business and operating in the gulf coast and in section one point two one they said let's look at people who are purveyors of goods selling things and it says very clearly they need to be at a facility selling goods in the gulf of mexico then they said well what we do about people who provide services and they said  location but they are in specified gulf waters and they have a fixed distinct physical location they don't move they don't float those are in specified gulf waters and be picked up but not only that if you look at section one point two one it also contemplates that it would be that facilities that facilities are purchased seafood in specified gulf waters and the some agreement deals with fisherman that the notion of a broad specified gulf waters area was not unique t facilities and there's nothing to suggest contrary to the pretty demonstrative the council handed up that the area of specified gulf waters was intended to create a notion of a floating facility somewhere in the gulf of mexico and again we're talking about facilities that the some of them initiated term and were only docked at the port in the specified gulf waters started in the gulf of mexico for less than five percent of its time and in some instances zero percent of the time even by their own accounts but their argument in their brief the but the ship that they have that was most in the gulf of mexico was only in the gulf of mexico flowing out of gulf of mexico waters maybe less than fifteen percent of its top one point two point two  or one point two two dealing with service businesses does say time but and i believe that the use of one point two of any time in both one to one and one to two was to make the point that if you were a startup business or you were out of business some time during the two year period you were still covered you were not required if there's any time during this two year period so the point was if you were a new business during and started up ten months into the period you still satisfy that it didn't suggest at all the temp orally you could be in the gulf of mexico for an hour and you would be all the sudden eligible to be part of the part of the summer class your example of the cargo ship is right on point judge davis counsel said well they don't sell products so they would not be a facility that the cargo through the gulf of mexico but if you read the rest of one point two point one it says or you sell products to another entity that also sells products to end users so the cargo ship floating through the gulf of mexico under the world caribbeans definition rejected unanimously b back appeals panel would allow that cargo ship cruising through it to also be a facility similarly under one point two two under the illogical extent of their argument is that a a boss who drives through alabama for two hours on the bus driver who is a full time employee of greyhound sells a soda sells sodas to the refreshments of the passengers they would somehow be eligible as a class member of the one point two two there's no way to draw line and it's very clear that the settlement agreement as i started say the settlement agreement did not contemplate floating facilities otherwise you would have had to have some kind of going after section one point two and there's a long list of industr didn't say anything about cruise ships won't look to me that makes perfect sense they were they focused specifically on the s s that's all are included in the settlement agreement starting to get there are saying that the one point two one deals with people who sell goods one point two two was intended to capture a large number of claimants who provide services on a full time basis with them full time employees in the gulf and when they got to the vessels because there could be hundreds if not thousands of vessels in the gulf of mexico structure of the agreement makes clear that they were looking to address four categories of claimants the fourth category would be people who have a real estate in the gulf of mexico that was always with the focus on in the gulf of mexico and home porting was the bright line test that the parties set up for determining whether a vessel was in the gulf of mexico they could have said other things they could have said a vessel that was fifty percent of its time or more in the gulf of mexico they could have sent a vessel that was twenty five percent of its time they said home urge this court to make section one point two three totally support superfluous only explain what section one point two is about commercial entities right and you have vessels being home ported so it is hard to conceive of what you 'd pick up in one point two three that we can already be picked up in one point one point two want to one point two two if they were correct in vessels the provision of vessels is not the sole way for vessels these are by definition commercial boats because this is the entity section not the individual doesn't this is for commercial entities every boat that's home ported means are operating by definition because that's what the definition of the definition of home port is what the registration says i'm a government issues the registration government issued registrations in the gulf of mexico any of the states say any of the operating in the gulf of mexico waters which made sense why was a good proxy for me we can imagine any number of beard shoes that would fall into more than one of the yeah but you can't imagine a lot of businesses that would fall into one point t the idea that it's not super one point two three becomes supreme flawless if you take their reading with definition because any boat operating in the gulf of mexico that's home ported any vessel right would have either by their definition a facility because it sells something for any point of time it's in the gulf or would be a service business because it spends an hour or two with one full time employee in the gulf but typically because all you need is have the owner operator be there so someone owns the ship and you know they decide that they don't want to hire employees at the pay pay them no benefits or whatever that would also be under one point two two so what would you pick what did you can see the bully pick up on the one point two three that wasn't already picked up under one point two want to one point two two if there are definitions right i scratch my head for a long time trying to figure out what would be the purpose of one point two three in a finally dawned on me there could be someone sitting in indiana or kansas who owns a boat the gulf of mexico is engaged in selling services or provide a private service or selling industries and has no full time lawyers only as temporary plays it is inconceivable to me judge davis that the parties would have incorporated as a separate important part of the eligibility classes something that might have affected two or three people and to read the settlement agreement to put a square peg in a round hole as well kirby intends to do makes that sexual one point two three completely superfluous except for this handful of people you could contort a hypothetical that might be picked up so it is not expansive one point two three is not expansive as blatant from the street is manifest from the structure of the agreement that it was intended to be the appeals panel found unanimously in that mislead all thirteen of them the one point two three was supposed to be the  avenue for membership in the class for vessels and oil caribbean just does not fit the definition set up in the settlement be a lot clearer from three categories weren't sent to disjunctive well i mean it well probate in their brief focuses on the word or and i'm saying is adult think it matters what conjunction is they couldn't use and he said nobody would be a class member because they wouldn't be able to satisfy all four of the categories so they put the word or and all i think that all is clear is or same with use maxims there cruises in and out of the gulf of mexico for a small amount of time or container ship where the container ship whether it be approved ship or whether be a tour bus operator on land is not a specific distinct and specific physical location which is what the settlement agreement to find joining not to get the four sixty seven the settlement agreement itself defines it as a distinct physical location it's inconceivable to me that is your a distinct physical location if you were cruising around in your in so i believe there's just no it was just never contemplated you have floating facilities and i think the point is also illustrated quickly by the fact that had the parties contemplated such a thing they would have had to have done something in the exhibit five to out think about how you would compensate those floating facilities what soames they would be if there's no such thing they do something similar for multi facility locations because they did contemplate that a claim that could have some to sylvia's outside the gulf some sylvia's inside the gulf and we need to have a mechanism to the side what's a proper part of their claim they would have had to do the same thing it's their definition is completely unmanageable sometimes your honour's a boat is just a boat and a ship is just a ship and that's what these are these are cruise lines ships their own people not home port in the gulf of mexico flying into foreign flag they came into the gulf of mexico de minimus amount of time and they're seeking a windfall thank you thank you first answer your question judge comment no we do not have another place to get relief and in fact that's why we relied on the claims of ministration before this claim was filed we gave them all the details of our calling we said we are a cruise ship we are not home ported but we bring passengers in and out of the ports we appear to be a facility under the definition of one point two point one in a service business under one point two point two are we eligible we were told unequivocally not by some low level person by someone who carried the title claims liaison she was assigned to our cases to help us as four point three point seven says file our claims so she was not some low level person and that was confirmed later over a period of time including by a lawyer we cited in our briefs a lawyer for the claims administrator so it was not somewhat of a person and we did roy on that and that's why we filed in this you comment on counsel's example and he said that section one point two point three would be completely tug boat is home ported certainly it's not a facility because it doesn't sell products but it's it's eligible you don't have to ask any further questions you don't have to ask if it has full time employees it may or may not many many businesses run with part time employees especially in this day and age when you know mint is shrinking but so there are plenty of vessels that could be eligible a charter boat business owned by an individual who doesn't work at full time if you just rents the boats out doesn't sell products doesn't have full time employees but if he's got those boats home ported you don't have to look at one point two point one one point two point three you're in the problem is the biggest problem is the other way and he did not give you an adequate explanation as to why have why include the specified gulf waters he is simply incorrect when he says that that includes the docks and marinas because the docks and marinas are within the definition of exhibit twenty to the gulf coast areas there are but they are in the in the inland waterways to find here you've got to give meaning to specify gulf waters which is the the big blue area  versus the p d cited on april twenty seventh two thousand and seventeen from two thousand and seventeen west or one five or zero eight three that says when you're considering the settlement agreement it's a question of de novo review its interpretation of settlement w clearly we need to definition service business however we are also facilities we need that definition of selling the products so we don't want to lose sight of the fact that we do meet both definitions horrible case we don't know what carnival did we saw that there was a lawsuit filed but that was a year before the selling agreement we don't know if they filed here we don't know if anyone else filed here this is a confidential process b p may know but we we don't know because we don't have access to all filed so we don't know if ultimately carnival did anything else we do know they filed a lawsuit but it was a year before the selma on the issue of time we were not the cargo vessel that just passed through we came to port in port during the relevant times during the compensation period more than one thousand times at key west so we are we are not just this de minimus cargo ship and that's not our case we're not arguing that case we're also not the ship is not selling the products it the someone on the other side who own the cargo is selling it to the end user so that's someone else that the ship