[00:00:00] Speaker 03:
Good morning, Your Honours.

[00:00:02] Speaker 03:
May it please the Court, James Marison for Appellate Mediterranean Shipping Company SA.

[00:00:08] Speaker 03:
Your Honour, we're here today regarding a dismissal of a claim as being untimely.

[00:00:13] Speaker 03:
More specifically, a maritime indemnity claim was dismissed by the District Court as being untimely filed.

[00:00:19] Speaker 03:
MSC's position with respect to the claim is simply put, MSC has an indemnity claim.

[00:00:26] Speaker 03:
It is governed by maritime law.

[00:00:28] Speaker 03:
Maritime law specifies that that claim accrues upon payment of the underlying cargo claim settlement.

[00:00:34] Speaker 03:
The statute of limitations through the operation of maritime law and the doctrine of latches gives us 12 months to file our suit.

[00:00:41] Speaker 01:
So is it your position that the parties could not contract to change the statute of limitations on such a claim?

[00:00:49] Speaker 03:
No, Your Honor, my position is that there's nothing in the... Yeah, I understand that.

[00:00:53] Speaker 01:
That's in your brief.

[00:00:54] Speaker 01:
I understand that.

[00:00:55] Speaker 01:
But you're now saying, you're now saying, well, maritime law provides for 12 months.

[00:00:59] Speaker 01:
Correct.

[00:00:59] Speaker 01:
But the real question in this case is whether or not the intermodal rules

[00:01:04] Speaker 01:
modified that general statute of limitations to a different one, right?

[00:01:08] Speaker 03:
Correct.

[00:01:09] Speaker 03:
And we would say that they do not, because they do not provide an exclusive remedy.

[00:01:14] Speaker 03:
They don't mandate an exclusive remedy.

[00:01:16] Speaker 03:
They do not specify what causes of action can be asserted against BNSF.

[00:01:20] Speaker 03:
And more specifically, they contain no provision whatsoever dealing with indemnifications.

[00:01:25] Speaker 03:
More specifically, there's no provision in the intermodal rules which precludes

[00:01:30] Speaker 03:
maritime indemnity claims, or even more specifically, there's no provision in the intermodal rules which

[00:01:37] Speaker 03:
draws MSC's attention to the indemnity rights being foreclosed after a certain time, thereby becoming the insurer of the cargo.

[00:01:44] Speaker 01:
The record in this case doesn't include the ERs.

[00:01:49] Speaker 01:
I can't find your notice of claim.

[00:01:51] Speaker 01:
In other words, two things happened.

[00:01:53] Speaker 01:
You file the notice of claim within the period specified by the intermodal rules, but the suit wasn't brought within that period.

[00:02:00] Speaker 01:
And I know you think that period doesn't apply.

[00:02:03] Speaker 01:
Did I overlook the notice of claim?

[00:02:05] Speaker 01:
Is it in the record somewhere?

[00:02:06] Speaker 03:
No, Your Honor.

[00:02:07] Speaker 03:
As you probably read, the intermodal rules have two.

[00:02:10] Speaker 03:
provisions, a claims notification provision within nine months, and a suit notification within nine months after a declaration.

[00:02:15] Speaker 01:
Right, and the claims notification is not in the record here?

[00:02:18] Speaker 03:
No, it isn't, Your Honor, because we were not notified of a claim until 12 months after delivery.

[00:02:22] Speaker 01:
Well, I don't know.

[00:02:23] Speaker 01:
I mean, it exists.

[00:02:26] Speaker 03:
Neither side put it in.

[00:02:27] Speaker 03:
A notification was given to BNSF, and that's when they denied it in January of 2023.

[00:02:33] Speaker 01:
Do we know whether the notification referenced the intermodal rules?

[00:02:38] Speaker 03:
I do not know.

[00:02:39] Speaker 02:
So the intermodal rules, limitations period, refers to claims for recovery of amounts sought in connection with loss or damage.

[00:02:51] Speaker 02:
And setting aside the debate that you have with the other side over how to characterize an indemnity claim and whether it's equitable or where it comes from or any of that, why isn't it a claim in connection with loss or damage within the meaning of the contract?

[00:03:06] Speaker 03:
Well, the reason, Your Honor, is twofold.

[00:03:08] Speaker 03:
One is there's a distinction to be made between a direct claim for cargo damage and a maritime indemnity claim.

[00:03:14] Speaker 03:
And this Court has made that distinction clear in the case of states steamship versus American smelts.

[00:03:20] Speaker 01:
Well, but that case involved a claim for salvage costs.

[00:03:25] Speaker 01:
And in this case, I take it it's true that had there been no cargo loss, you would have no claim.

[00:03:34] Speaker 03:
had there been no cargo loss, we would never have to settle a cargo claim in order to then claim an identity.

[00:03:40] Speaker 01:
This claim arises out of cargo loss, wherein SS, it arose out of salvage costs, which strikes me as a different... Correct.

[00:03:49] Speaker 03:
It's slightly different, but the principle's the same, Your Honour, because the SS smelt case was subsequently then applied in Washington in two cases being

[00:03:58] Speaker 03:
the Atlantic Mutual versus OECL case and the American President Line and Coastal case.

[00:04:03] Speaker 03:
It was also cited with approval in the Fifth Circuit decision of Hercules and then applied in that another Fifth Circuit decision of Hyundai Merchant Marine against BNSF where this precise issue was argued.

[00:04:15] Speaker 02:
But there's still I mean I'm still not sure I understand the answer to the sort of the antecedent question of

[00:04:21] Speaker 02:
Why does any of that matter when we have a contract that refers to amounts sought in connection or loss or damage?

[00:04:30] Speaker 02:
Isn't the question before us interpreting that clause of the contract and assessing whether what you're seeking is in connection with loss or damage?

[00:04:40] Speaker 03:
Well, Your Honor, I would say two things and this is the two primary reasons why we believe the District Court was in error.

[00:04:47] Speaker 03:
The District Court did not characterise our claim correctly.

[00:04:51] Speaker 03:
It immediately jumped into a cargo loss and damage claim when our claim is actually based on an indemnity.

[00:04:57] Speaker 04:
The problem here is you've conceded that the contract can override the statutory statute of limitations, so we're looking at the meaning of the contract term here.

[00:05:09] Speaker 04:
I have the same question as Judge Miller.

[00:05:12] Speaker 04:
How are we supposed to interpret the terms

[00:05:15] Speaker 04:
in connection with loss or

[00:05:33] Speaker 04:
to direct claims as opposed to being a fairly broad term that could include anything directly or indirectly arising from loss or damage.

[00:05:44] Speaker 03:
It's the plain meaning of the words cargo loss and damage.

[00:05:49] Speaker 04:
But we have in connection with.

[00:05:51] Speaker 04:
So in our world, in connection with conveys a broad scope.

[00:05:58] Speaker 03:
Well, we would submit that the plain meaning of cargo loss and damage implies a proprietary interest in the cargo that was lost on damage, which MSC never had.

[00:06:07] Speaker 03:
MSC was never the owner of the cargo and never suffered any damage whatsoever when the cargo was damaged.

[00:06:12] Speaker 03:
Our damage had arised when we paid the underlying settlement.

[00:06:15] Speaker 03:
The other aspect to my answer would be there is an established line of case law, which I've just gone through, which uniformly holds that ocean carriers indemnity claims in maritime law, like MSC's here,

[00:06:29] Speaker 03:
and not subject to the contractual limitations that are in the party's contract, whatever they may be.

[00:06:34] Speaker 01:
So now you're backtracking a little from the first answer.

[00:06:39] Speaker 01:
You're saying the contract can't modify the common law or the generally applicable law?

[00:06:49] Speaker 03:
Not with respect to our claim for indemnity, because there is no provision in the intermodal law.

[00:06:53] Speaker 01:
Yeah, but see, that's a contractual argument.

[00:06:55] Speaker 01:
In other words, if it said, including claims for indemnity, you wouldn't be here, would you?

[00:06:59] Speaker 01:
No, or if it said that indemnity claims are precluded, we wouldn't be hearing it.

[00:07:02] Speaker 01:
Okay, so we're trying to figure out whether indemnity claims fall within a phrase that says, regardless of the loss or damage caused, and then it goes on to describe the claims.

[00:07:16] Speaker 01:
And I think you have to at least admit loss, this isn't excluded on its face, does it?

[00:07:24] Speaker 03:
Well, we believe that an express exclusion is necessary, Your Honor.

[00:07:28] Speaker 04:
So you're saying unless it actually explicitly refers to indemnity claims.

[00:07:33] Speaker 03:
Correct.

[00:07:34] Speaker 04:
It cannot cover them.

[00:07:35] Speaker 04:
So do you have a case that literally says that clause in the contract must expressly exclude indemnity claims.

[00:07:44] Speaker 04:
It can't be impliedly covered by a broad term.

[00:07:48] Speaker 03:
Yeah, it was espoused in the case of Hercules in the Fifth Circuit.

[00:07:52] Speaker 03:
and applied in the Hyundai Merchant Marine case also in the Fifth Circuit in Burlington, Northern Santa Fe.

[00:07:59] Speaker 01:
Were they interpreting the intermodal rules?

[00:08:02] Speaker 03:
They were interpreting the exact same provision we're dealing with.

[00:08:05] Speaker 01:
And they said that a claim for indemnity is not a claim for loss of cargo?

[00:08:12] Speaker 03:
Yes, Your Honor.

[00:08:13] Speaker 03:
They characterized the claim as indemnity.

[00:08:15] Speaker 03:
No, I understand they characterized it as indemnity.

[00:08:17] Speaker 01:
But was it an indemnity claim that arose out of the loss of cargo?

[00:08:21] Speaker 01:
It was, Your Honor.

[00:08:22] Speaker 01:
Okay.

[00:08:22] Speaker 01:
I'll take a look at those cases.

[00:08:24] Speaker 03:
Yeah, I can provide the court with those sites, but it's the exact issue that is at issue here.

[00:08:29] Speaker 03:
So we believe the District Court made two fundamental errors.

[00:08:32] Speaker 03:
The first is it mischaracterised MSC's claim as a claim for direct cargo loss and damage, when it is in fact a recognised admiralty indemnity claim.

[00:08:41] Speaker 03:
Indeed, the District Court didn't address that issue at all in its ruling.

[00:08:45] Speaker 03:
The second fundamental error is that the District Court completely ignored the line of cases, starting with the law in this court in Smelt,

[00:08:54] Speaker 03:
expanded and applied in the two Washington cases and sided with approval in the 5th Circuit decision of Hercules and then applied directly against BNSF, which says unless there is an expressed provision in the contract which notifies a party that they could potentially become the insurer of the goods after a period of time, then the court will overlook the contractual provisions and instead rely upon the statute of limitations provided by maritime law.

[00:09:21] Speaker 03:
And it's for that reason we believe the District Court was in error.

[00:09:24] Speaker 02:
And remind me, was the issue in Hercules, I guess I had thought it was, I'll go back and reread it, but I had thought it was about when the claim accrues, not whether the claim is subject to a limitations period at all.

[00:09:39] Speaker 02:
Is that right?

[00:09:40] Speaker 03:
The primary Hercules decision involves the official discrediting of the Grace Line versus Central Steamship case.

[00:09:48] Speaker 03:
being an old fifth-circuit decision, which was rejected because it wasn't consistent with indemnity principles.

[00:09:54] Speaker 03:
It wasn't supporting a robust third-party practice.

[00:09:57] Speaker 03:
And it encourages selective suits or manipulation of time bars when a court is to look at the contractual provision as opposed to the maritime law statute of limitations.

[00:10:12] Speaker 01:
I had thought of Hercules also involved a claim for hull damage.

[00:10:17] Speaker 01:
There were two parts.

[00:10:18] Speaker 01:
There was a cargo claim and a hull damage part.

[00:10:20] Speaker 01:
But was there a statute of limitations issue?

[00:10:23] Speaker 01:
I don't see Hercules addressing a conflict between intermodal rules and a contract with respect to cargo damage.

[00:10:35] Speaker 01:
Am I wrong about that?

[00:10:37] Speaker 03:
I don't believe it addressed the intermodal rules.

[00:10:39] Speaker 03:
It was the case that followed Hercules, which is Hyundai Merchant Marine versus Burlington Northern Santa Fe Railway Company, which applies the principles of Hercules directly to the BNSM intermodal rules and holds that the court is to overlook those.

[00:10:54] Speaker 03:
Similar to the position that was adopted in Washington in the Atlantic Mutual case.

[00:11:01] Speaker 02:
OK.

[00:11:01] Speaker 02:
We've taken you past your time, but we will give you two minutes for a bottle.

[00:11:04] Speaker 03:
I appreciate that.

[00:11:05] Speaker 03:
Thank you, Your Honor.

[00:11:10] Speaker 00:
Mr. Lawrence.

[00:11:20] Speaker 00:
The contract between BNSF and MSC, the intermodal rules, which are admitted by MSC, are part of the contract and that are binding against MSC, exclude the claim at issue here.

[00:11:32] Speaker 01:
Who wrote the contract?

[00:11:33] Speaker 00:
I'm sorry.

[00:11:34] Speaker 01:
Who wrote the contract?

[00:11:34] Speaker 00:
The intermodal rules are written by BNSF and they are approved by regulatory authorities.

[00:11:42] Speaker 01:
So if this phrase is susceptible of more than one meaning,

[00:11:47] Speaker 01:
Should it be interpreted against the drafter?

[00:11:52] Speaker 00:
There's no inequity in terms of the bargaining power and I would also want to point out that the MSC had the option of not taking on the limitations of the intermedal rules that's also in the intermodal rules that say

[00:12:04] Speaker 00:
If you want to essentially buy by paying a higher price, less limitations, you can do so and here's how you do so.

[00:12:12] Speaker 00:
So I think it is a fully negotiated provision between two highly sophisticated parties.

[00:12:22] Speaker 00:
So going to the point,

[00:12:24] Speaker 00:
Obviously, by going through decades and emphasizing the Norfolk Southern Supreme Court case, parties to maritime contracts are allowed to limit their liability in their contracts.

[00:12:39] Speaker 00:
And the recognition of that is for the very point I just made is that different limitations on liability relate to the price that's charged by a railroad carrier, for example, so that an entity like MSC can get a lower price

[00:12:54] Speaker 00:
by accepting greater limitations on BNSS liabilities.

[00:13:01] Speaker 00:
What I hear counsel stating on the other side is that there has to be specific reference to a remedy, specific reference to causes of action, specific provisions how to deal with indemnity claims.

[00:13:13] Speaker 00:
There's no authority for any of that in any of the case law.

[00:13:18] Speaker 00:
He read you the decision from the Southern District of Texas, the Hyundai decision, suggested that it requires an indemnity reference specifically.

[00:13:29] Speaker 00:
That's not what it said.

[00:13:31] Speaker 00:
What the case said is that there's got to be notice.

[00:13:35] Speaker 00:
Now, they held that there wasn't sufficient notice, but there was absolute sufficient notice.

[00:13:40] Speaker 00:
It said, look, if you submit a claim and we deny it, you have nine months to file a lawsuit.

[00:13:46] Speaker 00:
That's very specific.

[00:13:48] Speaker 00:
That applies to any claim that arises out of cargo loss and damage.

[00:13:52] Speaker 00:
And if you look, as the district court did, both at the contract language and the specific claims in the complaint against BNSF,

[00:14:01] Speaker 00:
all of the liability that their claiming is indemnified, a BNSF flows from actions that relate to a loss of damage or cargo, and that would be the same types of actions that BNSF would be liable for under the provision.

[00:14:20] Speaker 00:
So if the provision is sufficient to cover those claims, which it is, as the district court found, then you have to apply

[00:14:28] Speaker 00:
the limitations period.

[00:14:30] Speaker 00:
We'll also note that there's never been any explanation why they didn't comply with the limitations period.

[00:14:36] Speaker 00:
There's no dispute that the claim was denied by BNSF and that triggered under the limitations period a nine-month period for them to file suit.

[00:14:49] Speaker 00:
They knew that.

[00:14:49] Speaker 00:
This was after they had paid their indemnity claim.

[00:14:52] Speaker 00:
And still, they didn't file within the nine months.

[00:14:55] Speaker 00:
They waited a year to file their claim.

[00:14:57] Speaker 02:
Can I ask you about the specific language of the limitations clause?

[00:15:03] Speaker 02:
So there's four sentences.

[00:15:07] Speaker 02:
There are three references to loss or damage.

[00:15:10] Speaker 02:
And one of them, as a couple of us noted, says in connection with loss or damage.

[00:15:18] Speaker 02:
But the second sentence, which is where the nine-month time limits actually appear, says Shipper must file all loss or damage suits against BNSF.

[00:15:30] Speaker 02:
That sentence does not use the in connection with language.

[00:15:36] Speaker 02:
Don't we have to give some significance to the absence of in connection with in the sentence that actually has the time element?

[00:15:43] Speaker 00:
Well, I think first of all, as a matter of contract interpretation, you look at all these clauses are in the liability section of the contract, so I think they should be read in connection with each other.

[00:15:52] Speaker 00:
I think also the all,

[00:15:54] Speaker 00:
is sufficiently broad.

[00:15:56] Speaker 00:
Again, there's no doubt that the claim, when you look at the complaint and you look at what's at issue here, the claim are for damages from cargo loss or damage that are being claimed where BNSF did not fulfill its obligations, and those obligations would have been the same under the contract or in the absence of the contract.

[00:16:17] Speaker 00:
So I think that that is an all inclusive phrase especially in connection with the in connection language that you have.

[00:16:26] Speaker 02:
And is there, why does it say in connection with in one of the three places but not in the others in that provision?

[00:16:37] Speaker 00:
I think that it's not necessary to use that same language.

[00:16:41] Speaker 00:
Again, because the clauses are all connected in the same provision of the contract,

[00:16:45] Speaker 00:
I think it's fair to try to read them all together.

[00:16:48] Speaker 00:
So if you have a claim in connection with this that results in loss or damage claim under cargo, then it would fall within the filing limitations that you're referring to.

[00:16:59] Speaker 02:
Okay.

[00:16:59] Speaker 02:
And can you address the Hercules case from the Fifth Circuit?

[00:17:02] Speaker 00:
Well, I think as Judge Hurwitz pointed, the Hercules case did not involve loss or damage in terms of the decision.

[00:17:13] Speaker 01:
There was a cargo loss or damage issue in that case.

[00:17:16] Speaker 00:
There was, but if you look, so the whole discussion is about the non-cargo loss issue, and it's in that discussion where the issue about indemnity arises.

[00:17:26] Speaker 00:
At the very end of the decision, there's a short discussion about the loss of cargo claim.

[00:17:30] Speaker 00:
It didn't just say, oh, the indemnity provision that we described above applies.

[00:17:34] Speaker 00:
What they said in that last part is, look, we've got to understand what the contract says about loss and damage.

[00:17:40] Speaker 00:
And in that case, I think it was the statutory regime says about loss and damage of cargo claims.

[00:17:46] Speaker 00:
So we're sending it back to the district court, and they go on to say,

[00:17:50] Speaker 00:
But if this is in fact a transportation contract, which we believe it was, if it was a transportation contract, then the statutory limitations on causes of actions would apply.

[00:17:59] Speaker 00:
So I don't see how the Hercules case gets them to where they want to be.

[00:18:02] Speaker 01:
What about the Hyundai case?

[00:18:04] Speaker 00:
The Hyundai case, I think, is based on a misreading of Hercules as... Okay, but what does it... I'm sorry.

[00:18:13] Speaker 04:
What does it say, though?

[00:18:16] Speaker 00:
The Hyundai case is...

[00:18:18] Speaker 00:
suggested I think as he said that there has to be something in the contract that would give notice to the MSC in this context that they are facing a limitation that they need to respond to.

[00:18:34] Speaker 00:
And we believe that there is sufficient both the connection of language, the broadness of the liability and the clarity of the fact

[00:18:43] Speaker 00:
it says if you get a denial.

[00:18:45] Speaker 00:
I mean, they did submit a claim to be an SF under the contract.

[00:18:50] Speaker 00:
It was denied under the contract.

[00:18:52] Speaker 01:
And you didn't choose to put that in the record either.

[00:18:55] Speaker 00:
No, it's not in the record, Your Honor.

[00:18:56] Speaker 00:
And we understand, apologize about that.

[00:18:59] Speaker 00:
But again, they haven't explained in any sense why they are relieved.

[00:19:04] Speaker 01:
But is your position Hyundai is incorrectly decided or distinguishable?

[00:19:09] Speaker 00:
I think Hyundai is distinguishable because it

[00:19:13] Speaker 00:
it did not look at the specific language in the intermodal agreement and analyze it with respect to the scope of the claimant issue.

[00:19:23] Speaker 00:
So I think clarification in future courses, I think they would need to clarify it and perhaps your honors in emphasizing the scope of contractual rights here would... Well, the reason I'm concerned is if it's not distinguishable, you're asking us to create a circuit split on

[00:19:43] Speaker 00:
Well, that's not a circuit.

[00:19:43] Speaker 00:
It's a district court decision that I believe the... Well, didn't Hyundai go up to the Court of Appeals?

[00:19:48] Speaker 00:
I believe it's all based on Hercules and... Well, I understand.

[00:19:52] Speaker 00:
Okay.

[00:19:52] Speaker 01:
But it didn't... Wasn't Hyundai eventually decided by the Court of Appeals?

[00:19:55] Speaker 00:
I'm sorry.

[00:19:56] Speaker 00:
I'm not familiar with that.

[00:19:57] Speaker 00:
Okay.

[00:19:57] Speaker 00:
Maybe I'm wrong about that.

[00:20:00] Speaker 00:
So I don't think you create a circuit split.

[00:20:01] Speaker 00:
I think Hercules is distinguishable on its facts and its analysis from the situation here.

[00:20:07] Speaker 00:
So I don't think you would be creating a circuit split at all.

[00:20:11] Speaker 00:
I'm happy to answer other questions.

[00:20:16] Speaker 00:
Otherwise, we think that the district court properly looked at the contract, properly looked at the claims that were made against BNSF, and properly concluded consistent with decades of law, including the United States, that you have a right to contract with limitations, apply those limitations, and dismiss the lawsuit.

[00:20:37] Speaker 02:
Thank you.

[00:20:43] Speaker 02:
Rebuttal.

[00:20:45] Speaker 03:
Thank you, Your Honor.

[00:20:45] Speaker 03:
I'd just like to make a few points in rebuttal.

[00:20:48] Speaker 03:
Firstly, to pick up your point, Your Honor, yes, the BNSF contract is drafted by BNSF.

[00:20:54] Speaker 03:
It is their standard, generic, standard terms that applies to anyone who ships goods on BNSF rail.

[00:21:00] Speaker 03:
It's not a bespoke negotiated contract with MSC.

[00:21:03] Speaker 03:
The provisions we're talking about today apply to everyone.

[00:21:08] Speaker 03:
The second issue is Council

[00:21:11] Speaker 03:
for BNSF raised why we didn't file within nine months.

[00:21:15] Speaker 03:
I want to address that head on.

[00:21:17] Speaker 03:
It's because we believed we had one year under the statute of limitations pursuant to the doctrine of latches to file suit, and we did that in time.

[00:21:25] Speaker 03:
More specifically, whether it's a suit notification time bar or a claims notification time bar, they operate in the same way, to foreclose claims.

[00:21:35] Speaker 03:
So the rationale as to why they're excluded and

[00:21:37] Speaker 03:
in preference to the statute of limitations provided by maritime law, is the same.

[00:21:42] Speaker 03:
So it didn't matter that we didn't file within nine months, even if we had the opportunity to do so, because we had 12 months to do that and we did.

[00:21:50] Speaker 03:
And finally, in addressing the court's concerns about the Hyundai case, I would also point to the Washington decision in Atlantic.

[00:21:57] Speaker 01:
The Washington decisions, both of them are by the same judge.

[00:22:02] Speaker 03:
They are, Your Honor, but the Atlantic decision deals expressly with BNSF's predecessor company and the 12-month time limit in their intermodal terms that existed at that time.

[00:22:11] Speaker 01:
Are you claiming there's issue of preclusion?

[00:22:13] Speaker 03:
Well, the Third Circuit... You don't argue that.

[00:22:15] Speaker 03:
I don't argue that, Your Honor.

[00:22:16] Speaker 03:
It's not been argued.

[00:22:17] Speaker 03:
But the Third Circuit, in another case involving Hyundai and BNSF, did find issue of preclusion based upon the decision of Atlantic Mutual.

[00:22:25] Speaker 03:
But I'll read the concluding sentence, which is the Ninth Circuit has clearly expressed that an action brought for indemnity

[00:22:31] Speaker 03:
accrues at the time of the indemnities payment despite a shorter contractual limitations period applying to claims between the parties.

[00:22:39] Speaker 03:
OSCL's cross claim for indemnification is not barred by the limitation period in Burlington Northern's rules Miranda C, which was the one year time limitation provision that applied at that time.

[00:22:55] Speaker 03:
There's no circuit split.

[00:22:57] Speaker 03:
The Ninth Circuit law and the Fifth Circuit law are the same on this point.

[00:23:03] Speaker 03:
And we rest on that.

[00:23:04] Speaker 02:
Thank you, Council.

[00:23:05] Speaker 02:
Thank you.

[00:23:06] Speaker 02:
Thank both Council for their helpful arguments.

[00:23:08] Speaker 02:
And the case is submitted.