back about a ten minute recess before concerning the third and final argument today what we had this case we filed on my problems two thousand and sixteen a motion to enforce an arbitration agreement between the parties because the accolade there they refused to accept i'm nominated the basically saying gotcha i said gotcha because they said we blew an obscure procedure varied in fine print not in the contract but in incorporated you for like three months to do something and then wasn't it wasn't three months it was about fifty days two minutes and then longer than most opponents gave me to do anything and our initial response when they filed the petition for removal words some of them about two hundred fifty of them have been stricken through which i'll get to later because that's relevant twenty six of them were added one of them was the state of new york was stricken through black and white provides for the selection of the article panel wants to be appointed by each of the parties here two and the third by the ten so chosen what would it be contends and continued after that fifty me you can always if you try to win anything regarding arbitration you can always claim well the judge didn't foresee it because i say the arbitration agreement required acts of the judge didn't agree with me therefore it's a section for case and i don't see that here the judge said go to mediation i'm going i mean go to arbitration cases administrative leave closed have a nice day where you don't like is that the judge didn't enforce your view of how the arbitrator should be selected that's a section five problem we wouldn't have a over that but we filed under section four asking for compelling arbitration pursuant to the written terms of the agreement which section five were five and six which section five does say shall if there is the parties going on their merry way and began talking about mediation perhaps before betrays and and when we finally nominated we said ok they're not going to mediate we nominated mr price on april fourth we were told well you blew the deadline that's when we filed the motion to reopen the case and to enforce the arbitration agreement as written under section sixteen of the federal arbitration act an appeal may be taken from an order denying a petition under section four of this total to order arbitration to proceed now i understand your concern judge that this would potentially make all orders regarding arm trace an appealable of i don't think that's the case because we've got a very unusual a typical situation here we're agreeing both parties agree that arbitration should go forward as this agreement is who's going to arbitrate the case and that's a section five issue i mean if you think this is unusual everybody thinks her case is unusual everybody is going to make an argument to try to squash themselves under for even when the court has ordered arbitration which is what four is about so it seems to me that as soon as you start going wow i mean they were ordered arbitration but they didn't order my kind of arbitration and therefore we're under for more i mean tha strikes me as very all that subject to is the imagination of the lawyer and lawyers are very imaginative which is good when they're representing their clients not being disrespectful of that but that doesn't strike me as the way we are to determine our  under a written agreement that your motion was called motion to reopen case to enforce the method of or point of arbitrators that doesn't sound like motion to compel arbitration which hour even compel but it was not styled as a motion to compel arbitration it was a motion as a party agreed to by the fair you neglect or refusal of another to arbitrate under a written agreement to arbitrate and other words then he was refusing to arbitrate under the terms of clause thirty four which says before a panel of tree three one chosen each by each of the parties here to the third by the two so chosen by their refusal to arbitrate under this term of this agreement we became a party aggrieved under section four that's what gives us our jurisdiction under section sixteen why you have to ask would bordelon agree to permit unilateral do you think felt selection in this case want when you look at clause thirty four as i said it's almost a thousand words it's not hundred sixty six words the first section is excise is deleted among the paragraphs in that first section is a process for unilateral de saw default selection very similar to the uniform lateral default selection that baby claims was surreptitiously reintroduced through the back door through incorporation of the society of maritime arbitrator's rules which are available on a website and i have you say will do it under the laws of the triple lie there are no laws in the song so in half the time prior to you know what those last say many avoids the argument let's just agree ok there's this entity that has rules which is comply by their rules those rules are different from what was crossed out here so i don't see them as inconsistent section ten of the s in may is the linchpin for the district court's order for us to proceed to arbitrat arbitrator on april fourth and then we got the gotcha and then a week later we filed this motion to reopen the case that had been closed state and closed and to determine the proper method for selection of the arbitrator ok let me ask you this what if you had gotten the e mail and you just got we're not going to do that we don't we don't like this we're just not going to appoint somebody there was no reason for us we could have i'm not asking that this is a what it seem argue and that you had  view of the agreement the procedure is in section b the very first line of the arbitration agreement says shall be governed by and construed in accordance with title non united states code or title nine is the scuse me provides a procedure when there is a lapse in the appointment of an arbitrator it provides for the district court to appoint a neutral not the other party to stack the deck and absolute absolutely not your honor what i'm saying is this clause is to be read like a series of instructions one two and three it's like you go to ikea you buy a piece of furniture and you bring the pieces back in the set of false thirty four reads like a series of instruction instruction number one is it shall be governed by construed in accordance with title mind i e the f a ed second instruction shall be referred to three persons at new york is to excise taxes is inserted in lieu of that want to be appointed by each of the parties here to the third the other two so chosen so that spells out how you how you point your panel moving under section three what happens once you get the panel once you get the panel the proceeding shall be conducted in accordance with the rules of the society of maritime arbitrators so matter such as when your pre hearing statement is  subpoena a witness when your exhibits must be exchanged when you identify your witnesses those kinds of matters are governed by the rules of the society of maritime arbitrators the proceedings once the pounds impaneled the proceedings proceed in accordance with the s m a rules that's how i would that's how i read this clocks and no i do not read this clause to have to this particular phrase  shall shall be conducted in accordance with the rules of the maritime society maritime arbitrators as having no effect at all i think it provides all of the details for the proceedings  which should read the rules except for section didn't have to read the rules except for section ten because section tin the section ten directly contravenes the plain language in part two in other words part three of the clause which is the f e m a incorporation directly contravenes part two which says because it provides a miti if the parties don't do it they're supposed to meet the parties if you have designated somebody in response to the first e mail we want to be here ok that would've been the end of it but if that falls apart then what do we do well that's where they're arguing section time comes in and my response to that is no that is dealt with by the incorporation of section title not title non provides that remedy you don't have to go all the way down to the rules that govern the proceedings because the way it's drafted it looks like that incorporation is to provide the procedures for the proceedings once the panel is there and if there's a lapse before the panel gets there then the remedy is right here in title  good morning may please the court i think this case has become a lot more complicated than it should have been in all due respect this is this case involve two charter party agreements opposing counsel is very qualified and experienced maritime attorneys the client ballinger board of law and is a large suppl boat company these charter agreements and the terms of these charters are not novel issues to them it's very common in these been co form charter agreements that there's different dispute resolution provisions in the parties typically adopt one o the other they'll do a strike through and there may be some modifications that's exactly what happened here they strike through an entire discrete resolution provision and used another one in the current year in the charter agreement but then added some of this argument that they meant to adopt section five of the f a a rather than section ten of the s m a in the event the that they didn't do their their designation of the arbitrator well they and they noted that throughout nt saying they didn't make it i'm just saying it suddenly hit me this is the value we're argument someone hit me a little differently they're arguing that here it says this charm it's how we govern of course with total non united states code who can and that is then the framework up until we get to the arbitration then when we are in the arbitration then we have the proceedings conducted under the s a man and so if we have in this middle rule as she called it or stamp or whatever it was we have a problem we revert back to title non of the u s code rather than because we're not yet in the proceeding we we revert to time line rather than s m s what's your answer to that particular verse specific argument my my appreciation of it is that reverting to title nine session only a point of the arbitrator's it only applies if the contract otherwise is silent as to the method of appointment i still believe that the yes and may rules govern how we appoint the arbitrator because we have incorporated and adopted them and those rules specifically provide for the time frame and what happens if the other party does not appoint arbitrator within that time frame i don't think we get to section five because i think it's covered by the adoption of the s m a rules anything else and so in the diversity section you talk about citizens of the united kingdom and of the united states and then you say somebody resides in texas and you know residence doesn't get you there it's a citizenship for purposes of diversity so you still haven't proven diversity on the diversity section and then in the section on the convention you don't have any of the croydon sprong elements listed and explained so you talk about them in other areas but in the actual amended of no notice to removal we don't have them laid out so i'm thinking whoever wrote the amended news to remove them wasn't also the guy writing the brief and wasn't also the guy or gal reading what our letter so i don't know if you want to answer that you want to take another shot at it or what you want to do but i'm i'm concerned that the m n n newsroom is still insufficient even though lurking in there might be some federal jurisdiction  ok to dress the jurisdiction issues so they're defending court has jurisdiction three different ways here one is diversity if these are limited liability companies and the citizenship of the l s civil procedure we're talking you said citizen of the united states but reside in texas residents doesn't matter i can i'm residing in louisiana right now i have a hotel room here for three days but i don't plan to live here so i'm not a citizen of louisiana again a wonderful state but i'm a citizen of taxes because that's where i plan to go back even if i spend a month in florida or louisiana or mississippi or were so i want to just clarify what we had indicated in the minute notice of removal with the affidavit was that again that they were in the the point to make was that there were no citizens and united states in louisiana these were citizens of different that doesn't by residing in texas i could go reside in texas when i went to law school i resided in georgia for three years i think it's in most offices and of georgia i still consider myself a citizens of florida where i've grown up because that's where i was going to return and that's how that's determined  the fact that at that moment i'm an apartment in georgia and all that i still put my permanent address is my florida address and we you know that you've been a student so that's kind of civil procedure want to one respectfully that you have to put the citizenship of the state ok i'm not saying it's not fixable i'm just saying it's not correct but there's also the convention is not fully fleshed out under paragraph six now with respect to the convention so if we remove the united states the citizenship issue of it for the for the time being we still believe that there's a federal question jurisdiction of the convention because we're dealing with a commercial instrument here is an amnesty contract and  specifically says that so i don't believe that the convention you actually get to having to address the citizenship issue if that first requirement is met and then i believe that there is a you saying that if the first requirement is met and you're going for jurisdiction under the convention you don't have to spell out the  of the party if if your contract envisions performance in a foreign jurisdiction i'm paraphrasing how it's worded then you do not have to how it's worded throughout and that's were the technicality get you and it would be very easy to revise your documentation to use the right terms and i think that's  provision it indicates that it would apply if this is a commercial agreement that contains the arbitration provision and it invasion in envisions performance or enforcement abroad and anything we indicated in the removal that it invision working and foreign jurisdictions ok that's it that was no more specificity than that and then the final of some potentially third basis for your station would be maritime law i understand that an amnesty claim is not a basis to remove but once the case has been removed and there was no  it can appreciate the fact that it still would apply but if they haven't filed a motion to remain in the case then they've waived that to fans at this point the court then has jurisdiction of a case involving two maritime contracts and that's not disputed i mean these were t vessels one of which the shield board of on they say that oh this you know dropped out because we settled that part of the case that's not true for the shell has been around forever in this case even in the arbitration they still raising issues with respect one that was supposedly under construction was floating it was name it was a vessel they were just doing the final stages of the refitting of certain things adding certain equipment and quite frankly that's what actually gives rise to the speed between the parties but the fact is that that we still have maritime jurisdiction maybe we can remove the light basis but once it was removed once it was at the district court level at that point at that point the case  court refused to grant a demand for arbitration and i don't think that's what we have here the court granted arbitration they're now trying to count is that while we were trying to get them to force arbitration a certain way that's what we they the court granted arbitration they just don't like the way the court did it and that's not wanted an enumerator grounds for appeal in is i think this is a premature appeal so i think we are and should be noted we're well into the arbitration process they've had jurisdiction and then after let's say you win the arbitration you come back up now she can challenge the arbitrator in fact that's one of the few ways you can challenge an arbitration nowadays is challenging the arbitrator and they went then you've just gone through all of this mass for nothing don't you want this or is i'm not saying we you should create apologist jurisdiction when there isn't i'm just trying to understand seem to be a lot of collateral fights in this case they don't center on the real the they got a fed ex letter demanding arbitration and referencing the s m a rules they did nothing they got two additional notices from that saying look we've initiated this you've got to appoint your arbitrator they did nothing nearly six weeks later we finally get a letter will they appoint their own person and now they're trying to act as though they didn't know or we had we known or that's not true they even look at a walk to their office and hand it to him sat down and visited and said you need to do this they would have done it this is exactly the way they this to play out to delay this process they didn't want to arbitrate they did not want to we pushed it with all the rules that were agreed to in the contract and for that reason you know we decide to proceed with the arbitration and granted they could appeal this aaa probably has more detail rules an estimate is it's very straightforward there not a lot of them and they mention in their briefs all these various versions they don't know which one to their own the website is it's not a lot of rules section ten  earlier rules clearly assessed for the procedure and regardless of which version of the s m s m a real you're looking at section ten is the same throughout it never changes not like they said oh and five years ago they changed from ten days to twenty days or no it never changed it's been twenty days clearly set forth in the apple s m a rules those are not detail they're not confusing the estimate is a common dispute resolution provision that is often contained in these charter agreements i mean we they just delayed the process intentionally one other thing i just want to address in conclusion that one of the issues that i think i haven't been able to explain is they discussed this push hard for this application of texas law i mean i think this clearly is maritime case we have to charter agreements into vessels i mean i think that's pretty straightforward but in the event that we were to apply texas law it's really sort of form over substance because really i think that texas law would yield the same results i mean we have an incorporation by reference of the rules pertaining to a particular form of arbitration i think that texas would still allow that a reference to spend a lot of detail discussing a texas case that distinguishes between the preprinted form versus the typewritten terms and i don't think that applies to what we're dealing with here so i think whether we have i think it's clearly maritime law but in the event that there is an issue with respect to the application texas law i think it you know society extent it was known and consistent with maritime law maritime law might well adopt the mccrary rule out of texas which basically says that the type written provisions of a contract or a better indication of the intent of the parties and proof of the form preprinted form of the contract i think the same holds true in our in our tradition agreement because we have only preprinted forms what we have some additions and one of the one of the things that was changed from the preprinted form was the deletion of a unit a lot of old the fault selection process in the event of a lapse of selection exist over the appeal but the charter party over the sheila born long is not in question in this case the only thing in dispute is one arbitration clause in one contract this contract and that was under construction at the time the contract was signed and was under construction at the time they had the mr jenkins client early terminated the contract it was not launched for some time  if the s m a rules apply to the procedure to follow in the event of a lapse then section thirty five of the s m a rules also apply section thirty five says any demands or notices must be served either by the us mail or personally does not permit service by e mail so all these e mails judge change that you mention had gone to us during the fifty day between the fifth of february when this demand was sent and between the time that we nominated mr price they don't count under the s n a rules the s m a rule says you got to serve either personally or by us mail secondly if the s m a rules apply in section ten is very explicit if you're going to use it as a gotcha and there's no question that's what's going on here if you're gonna use section ten as a gotcha your notification has to disclose hey by the way you've got twenty days to appoint an arbitrator and if you don't we get to a point one for you that's plain in black and white in section ten of the s m a rules that was not done so if you have the estimated rules applying instead of title nine to deal with the lapse of appointment then the s m a rules a required notices to be served by mail or by personal service which wasn't done and be required that the notice specifically set forth operative language from section ten which says you busk appoint your arbitrator within twenty days and if you don't we can appoint one for what it commonly jurisdiction is under the convention what are the requirements of the requirements for appointing an arbitrary i don't believe the convention that dubious siding actually has a separate set of rules other than section four and five i believe it reverts to the substantive procedural rules of the federal  exxon mobil it's a case from this court from twenty twelve it involved a case not dissimilar from this it's analogous to this although in this case there were three parties and each party appointed an arbitrator so there was no room for the one to be appointed as a neutral the court fashion to remedy the district court fashion to remove the that the judge felt was fair under the circumstances to all three parties and appoint a panel of fotch with the three parties the three arbitrators appointed by the three parties to select two neutrals that seemed fair and workable this court said no the arbitration agreement is clear it says you arbitrate before three party three arbitrators and remanded for the district court to fashion some limited you that complied with a written agreement and i see my time