and legally let's start off with one of the factual errors and that is that we had an expert testify about the a s t m marine safety standards which is a widely recognized reason i'm asking this it looks to me like a case it could go either way and it went that way there's evidence going both ways i'm just not clear on exactly why there's a clearly when he is finding or an error of law that compels reversal like i can explain them your honor there are sixteen pages the findings by the trial judge that basically lead to the i didn't have my argument meter to those two findings but those two findings are exactly consistent with what i'm going to argue if i may  of all the judge is basically saying there's there's nothing unusual about this there's there's nothing unsafe about it in so many words there's a number of things that were unsafe about it and that the vessel had knowledge unsafe about it first of all the defendant's expert testified that he not a line that had to be told through the hole which is a hole in the side of the fall of the ship was one hundred sixty five pounds with a lower calculated plane weight i don't actually see wife that matter the way much i mean he will push the car out of the ditch all the time and it weighs maybe four thousand pounds you're not lifting the car you pressure forced it's be quick and you can have a pulling force in other words i can if it makes sense to say that in certain circumstances two hundred pounds of pushing for the four thousand pound car i mean that you know you can you can measure that now the testimony that it's one hundred sixty eight pounds refers to one benefit of the doubt i and i'll see if i have an exact cite to that amount testifying about a task that didn't occur i would like to respond that that on my second to second call because like i said they put on this highly talented human factors guy who did extensive calculations that said it was one hundred sixty eight pounds of coal and so if you want to take some time to think about it while we hear from the other side just be sure to reserve yourself enough i have the same reaction that none of the sixth birthday is this mattered much because  a line that large large my client testified it was an awkward position to try to pull the line and i've shown photographs of the hole which is yeah very low to the deck of my clients we understand w just can't do this the way we would if we were the jury were if we were the triers of fact i have a total of twenty minutes correct you got seven minutes forty four seconds left captain refused his request to go out of the engine room to activate power for the capstan which pulls the line on the bath that the defendant then took responsibility for whatever happened after that i cited numerous numerous cases testified that the caps then was not functioning but they always use it when it's working so the captain gave about three different versions of why the caps capstan wasn't one to take the slack out and put a figure right so people don't step on it or if you have a capstan running you have two people on it feeding and clean it off the capstan when the captain was or was originally asked in the trial why he didn't put three men on the line he said because there's not that many men on the boat to be doing that if you're to believe the captain that there weren't enough getting there was testimony to various things and with the judge found as a matter of fact was that it's customary in the industry to use two men to do this job for the captain it was asked after the carl was asked whether it was wise for one man to pull the line he says i guess it would depend on the individual when he was asked whether it was a good idea for a man with a bad back to pull the line he said probably not a good idea when my client asked them to go down the lot of the engine room and activate the power when he said there's no time to go down on to the bow and i would like to reserve my time deference to the factual findings of the trial court who heard all of the evidence judge the demeanor of the witnesses assess their credibility good and you do a little bit with the physicists about the experts in one hundred  sixty five pounds first as the two hundred some pounds and how that plays into what the judge i think concluded i think what the judge did but we can only speculate because she never mentions either one of these experts in her opinion the one expert that plaintiff's counsel relied upon was a naval architect fi a t s standards he was referring to our design criteria dr hayes was an ergonomic and a human factors expert and he at great length set forth how pulling the slack of the spring line put virtually no pressure on the back and i don't know if he just said i don't care about this because the standards in the industry are two men the red herring here is that i mean something we have to address  crew member which was is a big issue in their brief you recall the testimony and contradicted was that that extra man would have then been down doing what the chief engineer was doing on this time and  been up in a wheel house drinking coffee with the captain so you know that it's a red herring five or six people the operation is exactly the same there would never have been a third person down who's not necessary to be in the way the as the the slack was being brought in  the use of the capstan is another red herring because even the plaintiffs that trial justified and i prefer to have my breath and given you a excerpt from the transcript which i think i know is i couldn't find any in many instances in the that line it might part do we have to get to all that is now as i remember the what the judge said was a cap stand as it used because on this super duper fancy synthetic line doesn't make the friction will cause burning damage  that the line is that its customer only done by two men one filling it in one wrapping it around the eighth that's exactly right and we is that industry standard and that's not clearly erroneous would just go with that that's exactly right please tell me where your expert said that there's virtually no pulling force in the situation i guess i can put a supplemental excerpt of record got we got it and that is the  synthetic line actually it's i don't and i'm sorry i did not address that but the reason i didn't is because obviously the trial judge heard all that testimony and then didn't rely on it in her opinion so what she relied upon for factual findings many of which were contested and she judged credibility and she believed one witness another witness she went with the captain who said it's a two man job always is a two man job that about it's the force required to get a stationary object moving you hit right on it that can be he said it might take that kind of force to get a large thing like a car moving but it really had nothing to do with the pulling it raise your stomach which by the way he testified to the folds and almost no pressure on the back which is the important thing here now i'd like to address one more thing because i think the porton and that is his business about the plaintiffs knows better about his physical condition and somebody else well the court found that he never warned anybody so therefore if he didn't complain or say this is dangerous then the company captain nobody would know that there was a risk involved because this is the only guy to get injured in this way industrywide everybody doesn't like that so there's no notice and no foreseeable risk and that is that's clear in her findings and perhaps like i was going to say regarding his back and knowing better than anybody his own doctor who was he brought in to testify specifically for trial he wasn't even three pre employment physical that was eleven years before this accident that said there may be a possibility it enveloping problems in a future in point of fact he sailed for the next twelve years he had two minor back problems which were treated and he returned to work at the time of this injury in addition to his doctor saying there was nothing wrong with his back and he wasn't suffering any symptoms prior to the accident we also have a fifth for duty slip which is but that doesn't relate to somebody who's intitled to special deference or something especially when he had a fit for duty so that and again if the courts at all concerned about charged with setting manning levels or the union on negotiation was it doesn't matter it would just be another man to drink coffee while the two guys are working on aflac that's right behind it exactly right and that was testified to and i think the court you mentioned that he doesn't  mike mike from tried it and judge hofstetter argued here and there were some serious attacks on the trial judges actually terminations regarding the negligence of the captain after the vessel broke loose from its moorings and his determination that it was superseding intervening cause because of the extraordinary negligence in the bunch of other things but there was again judge vaughn decided that case  i think it covered all the points i think are relevant the court's findings and i think it urged this court to uphold her findings because there is no way that anything that you put down that opinion could be considered to be  i'm ready to answer what i couldn't answer before this captain woods on page three dash one seventy seven trial transcript i know exactly what he's talking  method there's a way to do this with nobody pulling any lines ok that's not how it was done this time but there is a way to do it there are some trick play where the captain vast that's true that's another way of doing this operation and on page three dash one seventy seven of the transcript that's the exact procedure that this captain would describe this procedure that was not used on the day of the accident but if the palin were to ask me can this be done with nobody touching anything you bet you can't there is a trick back i read his entire testimony and immediately like lightning hit me and that i remember because even before he testified i knew that there was a way to do this without anybody touching any lines with the question of course whe that you know of maybe could do it so to speak and that there is a way that if they be could do it where you you hook up the lines and then you let the move back from the barge and you do it by the relative motions of the s s that wasn't done here that's where that interpretation came from i want to address two other issues one is warning my client when i he said hey do you want me to go down below and activate the power of this catch that he obviously felt it was needed he was told no we don't have any time to get down on deck he was following orders at that time the third point i want to make is this concept of custom in practice is baloney has nothing at all to do with this case i didn't cite yet to take into account the physical limitations of the scene and i even cited a case in my brief in here and i camera which one it was i think it's the lunsford case it's the lady steward that has to go fleet and you come up with the average amount of weight that some guy can lift off the standard of care in a seaman's action and you know i also quoted in my brief which is on the other table but i already know what it says it's it's a big section on page eighteen or nineteen in my opening brief from the supreme court how seaman are expected to often follow orders that they don't agree with and that they don't seem that they don't seem prudent to those thing  you're over time and the courts are supposed to not give an overly narrow interpretation to this concept of negligence he says the court should avoid and negligence a narrower restricted and technical meaning so i'm just saying this this one's for a case about the short lady making up the bunks that that develops this whole thing of custom and practice and how strong the average