the insurance policy that there was issued by the charges was denominated policy and of substantial significance to this case it was an all risk policy as opposed to really it and i think we're we're well familiar with the bad or two if you pursue your honor it's the responsibility of the insured in other words the in ghana months in this case my client had that responsibility good the question is when you look at all these cases what does that entail in reality it's eas say it's the responsibility to prove we were hewitt but was that mean the more recent cases have made it very simple to say number one to show that there was a loss nothing more than a number to show forseen or it was it was not something that was predictable or over which there was any control or i mean that the economy of if if the only question were a loss of policy then that question for today would be the morrison case in the biz circuit and i do believe that the leading case goes into a longer more drawn out explanation of what it means and in specific application to emmel people uses but that's that's that's a case like some of the others on which you realigned the deals with cargo and even saying that that the insured do not need to me to show you the specific eyes they still place it still places six point one statement right that that is correct you are one of them i was like are we not bound to look at the statement undisputed facts that the defendants it means are you free to come in and dispute facts that were not disputed in the that directly lead to the loss of think about it a little differently look at the fifty six point one of the defendants and help us with what facts  they put forward in that submission that amounted to fortuity to your clients because they have admitted that there was a loss and that's really all you have to pro now in terms of their assertion that it was due to possibly wear and tear which by the way they have not committed themselves to that position and they're all over the board i'm sorry this is a kind of  segue but they've never issued a file report as to what they believe the cause of the loss was after nine years they don't have any idea what caused the loss well now we've got a legal position stated in court and if they were to come forward and say something other than what they've said in court i imagine you or somebody else would be saying wait a nd there's of judicial stop where they have taken a position the position that they've taken  the air conditioning comps base plate housing impeller and empower blades resulting in small holes there have which allowed salt water to flow into the vessels engine compartment and throughout the vessel defendant contends that because the damage to the bethel resulted from wear and tear from corrosion it is specifically excluded from the insurance policy now that i submit your honor is a proper contention the wear and tear was  the cause of the loss because i didn't talk about expert reports there's an expert report here to counter any notion that heavy rainfall was the reason for the problems with the yacht right and that and that and that you'd have to have four thousand one hundred and sixty gallons of water some like some ridiculous all in her power i think it was  is hard there is one who was the meteorologist from new york we were pine on florida weather and didn't have any credentials to back it up and i went into that in my brief summary judgment very closely in the is that fortunately these are all phrased in terms of what the robert report says it doesn't say that it's an ultimate fact that there was not enough rain and and dollars inches of rain fell up and if that's the only evidence in the record i do think but it only refers to what reports us it doesn't say that that is the ultimate fact it says that the weather data that it appears that there was an assertion of poe's which was the not of not open by the plaintiffs that says basically there was an extraordinary rainfall have to show is a loss because you are in all the cases there is an agreement that the insured need not prove because five causes of the loss or damage true you need to show the precise cause but they all say you have to show fortuity but i hope your i take it your bottom line position is the one you started with to show for today you only have to show there was a loss so that it you also have to be some kind of idea out there that the insured has to show the proof i was the last it doesn't not your best case for your basic proposition i'm sorry i said what's your best case for your basic proposition that that you don't have to just have to show that the policies in force and there was a loss well i have the i have the absolute best case the one that we if we particular the requirement and the reason they do that is because the policy holder is the ship owner and the ship owners the one that knows what happens because typically the loss happens out at sea now here the vessel took on water and submerged in the policy is an all risk policy means we cover the risk of loss but the policy holder has to st before you before the policy comes into the coverage of the policy it's the policy holder the bears that initial burden and then there were in turn solution would be a redundancy but it but but you have an event that was clearly fortuitous a giant hurricane and then nevertheless have a case to make under would say for the sake of this hypothetical you had a terrible storm that came in and it caused significant damage and you had a vessel that was in good shape for to it it would be established there would be no exclusion take it out of congress and the insurer would pay as requir contract then you take the really bad storm that caused the damage but you have a vessel that's in in bad condition if the vessel would not have sunk but for that bad position the bad condition the policy  brought the claim within the coverage of the policy then the insurer would have to show i know there was a storm but it was in such bad shape it doesn't matter if it was a storm it was going down anyway that would be a burden on the insurer it would be actually a tough burden because they have to show that in the absence of this storm the vessel would have gone down and that would happen in circumstances like say for example the vessel went down two weeks before and some good samaritan came up and lifted the boat d up and then they just left it and the  down again and someone came by a lift to the boat up and they had holes in it and it was corroded and that circumstance the vessel would be in such bad condition that the solution would kick in but it doesn't mean that that there's never a circumstance right i mean you seem to be saying hey it's isn't fortuitous because you didn't take your boat and the response a logical response of that is the cases many of them including morson say  negligence doesn't mean there wasn't fortuity negligence does not create a non fortuitous event so if there negligent in not taking care of their boat why doesn't that mean that the wear and tear that the maintenance problems could nevertheless be set aside and you can look at the fact that there is a loss and assume it's for two just because both still just sync on their own that's a good question i think the the way that you look at is in the context of the claims and how they're describing negligence so they're saying that in more than grain for example that would these does this bag urea and the question was one of the potential reasons that there could have been a loss was that there might have been some negligence in the way that it was stowed that led to the loss the  notion of ordinary wear and tear is carved out because the nature of a sea vessel is it lives in the in the water it lives in an area where it's surrounded by water and if if not properly taking care of initial showing of fortuitous loss and then you're in the realm of proving exclusion oh i think because the it is precisely because it's forseeable if if if isn't your answer that wasn't their argument right i mean if we have a different case if they relied on their negligence and they just said you know we we didn't take care of it the way we should but the principle argument as i understand it is it was this heavy rainfall and then that becomes the question of fact that's for about and you find out there's not a heavy rainfall that's an extra and that's an excellent point  sometimes i get so wrapped up in coverage i actually enjoy the hypothetical and i find it fascinating but practically d practically d it's not an argument that was raised it's not it's not a reason for the loss the loss was occasioned by  in the sense that they say all we have to show his loss i mean isn't that up a way of saying our boat sank and who cares whether we were negligent so if we took it down away and we accepted their argument was i that any kind of negligence always eliminates every kind of work today because if that were the rule then it would swallow the rule of fortuity absolutely it would it would as you said earlier d drain the concept fertility would reckless conduct i ask because the out at the outset of this brief and they do lay out that with a block confirming that worst reckless negligent or reckless i have not made explicit but that is the opening of the brief i didn't understand the argument in that context but i will respond i think that if they're saying that they were reckless in failing to maintain the vassal that that would take the case out of fertility i don't think that you can be reckless in not maintaining a vass in graeme case while they did say you don't have to show the precise law of the presence cause of the loss they also go on to say that you do have to have a for to its loss you have to show for two is loss and   the owner simply said no explanation they actually affirmatively put forward an explanation that being the heavy rainfall and the record fact all of the evidence shows that the vessel was in was in in pretty bad shape as the court found so i think what judge walton probably did in this case is he looked at both issues he looked at the fact that there was no for two of us last proffered and then he evaluated considered and gave treatment to and ultimately rejected the proffered cause of loss because there was no factual basis to support those reasons  thank you yours actually greenaway you kind of took me by surprise with your question as to what my favorite piece would be because that's like asking you know a parent what they're with their favorite zero i don't know exactly the position on the page but the paragraph i believe the law starts with the role of the language that starts with the plaintiff in a suit i'm doing all risks pause insurance policy must it just means there's a loss that's your position just a loss yes i mean that's it that's really i have and if the book lying about if that is what that means than i put it to you again what is what what meaning  saying it doesn't matter just has to be a loss i would have to say that through experience that's why the cases are being refined to to this point because because when you're putting that burden on me i'm sure you're asking them to come up with the the ultimate reason the at from contra you're not saying give me the single reason you're saying you've got to give me at least this statement that this was an anticipated those are different things and one thing to say you have to pinpoint exact last for me and it's a completely different thing to say you have to at least show at a minimal level that the that there was an unexpected event which was a causal  piece of this loss right and i think that that's been the undertone all along and i say undertone has been understood by both parties all along that this is an unexpected event now that they don't accept that this was an unexpected event they say this was completely anticipated bill because you didn't take care your boat you just didn't do the simple obvious things to keep a boat from sinking and your client came forward and said no we see huge rainstorm that was the fortuitous event that was good for but when it put to proof showed up with no evidence of that there was a a lack of proof in the district court so if if we take the foundation of fact and say you got to show some fortuity and in fact no fortuity was shown i mean it puts the plaintiff in a tough spot doesn't claim fifths well actually your honor when you remove it if you want to discard the rainfall theory if you want to do that it's not an adequate it's not a question of what i want to i understand your question of whether you put evidence in there's a fifty six point one rule obligation it wasn't that so to be undisputed the facts became undisputed and they were judge cross read you the bird and paragraph which says there wasn't any unusual rainfall in this period if that's the factual foundation we're left with not because we want it to be but just because it is an era where dissent leave the plaintiffs i think it leaves them squarely with the position that number one it's not their responsibility to show that showed the ultimate cause all they had to do was to say there was i wrong he didn't expect it and nd of all there are all the cases that say if a loss is unexplainable that's actually what an all risk policy was designed to do if and in that case it was it was argued that the church said ok we're not going to cover the loss of coffee in a mexican in the mexican warehouse because we don't think it was ever there so you have to prove the law for all i mean that's obviously different what i'm saying is if all you need to show is that you had a policy and it was in force then you'd never ha