morning your honor may it please the court in the end in graham's position today is simple we're here to ask for your ruling that fault for an allusion can be apportioned to the owner even a lawful a constructive bridge if the finder of fact determines that it is unreasonable and narrow now the trial judge ruled to the contrary in this case and respectful he got it wrong because number one and owner has a duty to act with reasonable care to protect its own property the breach of which is subject to apportion the fault number two that duty is not removed by the holding of a valid construction permit and third these errors of law necessarily prejudice the trial judge ruled at page thirteen that he could not a portion follow v m e because it had no duty to alter the bridge as a matter of law but a reduction in damages to a bridge owner's own property may be appropriate even if there is no duty to a third party and yes eleven out of the fifth circuit says it better than i could so i'll indulge in a brief quote we reject the state's argument that it breached no duty to those who owned or were responsible for the part contributory negligence resulting in a diminution of damages otherwise recoverable meigs yes even though there being no breach of the duty to another one may be guilty of in the care of one's own property and the suffer a reduction of recoverable damages even those such negligence would not be actionable in a claim by another and in this case of course ingram has not sued the bridge over can you really tell clearly which way the judge ins up going because by the end of this the judge makes it sounds like it's a credibility case and if so cause case an open hand so just to finish my thought  so therefore even if the judge erred about the order and even if the judge erred almost on some of his talk about the duty it is that not determine even this case your position the is that the trial judge only addressed the crews conduct after his mind was made up and he had said so he said as a matter of law i cannot assess fall to the bridge over and then uses the word more over in to where it's impossible for him to apportion fall that the more over that not through the alternative alternatively more of our regardless i suppose it could be and yet he chose to address  and he has left us now with a pronouncement of law and we believe it's a new law and that takes us to the permeating issue but that's why again it's so important and i think he made clear that he was deciding first the legal question and then addressing in addition or alternatively the fact west and we think necessarily then that was a prejudice decision well the if you go to page fourteen where the more various the previous paragraph starts out really good quoting the supreme court but you're quite correct that by the end of it it does look it has a however this is an ornament ornaments on the front of sentences opinion so it has the ornament however no legal duty and then it says more over so how did you what do you have your answer judge basis for doing that of course he said clearly was the absence of i'm sorry was the presence of a valid construction permit but kirby does not say that a permit absolves the bridge owner or removes the question of comparative fault current line in i mean you have to have to make two assumptions here one is that he made a legal way or so let's give you that for a moment but then you also have to say the legal error influenced they alter the decision because he says on page fifteen you were there based upon the testimony of your own witnesses that you were as you ha who he finds to be in his words entirely credible i conclude that the sole cause was the negligence of the barge operator so what's what's the point to sending a back if he's already determined that that there's no comparative fault at the sole cause well your honor this circuit has ruled that this court has the power to correct errors of law including a finding of fact that is based on a misunderstanding of law and we believe it's impossible to separate the two in this case and it's also impossible factually to separate the role that the bridge played in causation from that of the crew played because that every term in the testimony in the arguments what we are always addressing is the attempt to deal with the narrow with at this bridge so factually and legally we believe that the two rulings cannot be separated and the reason he got there again was because of the holding of construction permit kirby and i and him both instructed the trial court to determine the bridges fault and they did so knowing great care to reconcile its holding with that a right to set a circuit and sided with approval the i am holding that the unreasonable eight hundred eighty design of the civil abridge could bear responsibility for an allision under principles of comparative fall again saying this while knowing if the bridge has a valid construction permit which is of course based on the bridges design now kirby at six seventy eight sided with approval the women thing case of the fourth circuit which tells specifically that all the boat the bridge in that case was a lawful destruction that the owners designed had chosen to leave little if any margin of safety and land based tort law does not support this sort of an argument that hold that a permit absolves the property owner of fall off you know what we see instead is that a permit supplies a minimum standard and but where there although in a land based context that it had no duty under the common law to upgrade its crossing because the crossing was a regulated design in the railroad was not out of compliance with any sort of regulation or law this court explained quote adoption by courts nationwide under similar circumstances again that's a land based ruling but the whole otherwise in the context of bridges we believe would be bad law and bad practice now the other reason apparently that the trial judge got here is is based on a quote out of the supreme court case in sierra club your honor we don't believe this year clove supports this argument at all so your club was a case addressing the question of whether if federal statute implied a private cause of action to stop construction of that being the rivers and harbors appropriate appropriation act but the tort law duty to exercise reasonable here has been present maritime common law judge in our case had ruled previously at docket number thirty six in denying and part b in these motion in limine and to exclude our expert he stated that sierra club was not applicable he said your club establishes that there is no federal common law prohibiting obstructions and nuisance is inevitable waters however the lack of such common law authority does not preclude a finding that a bridge owner may be at fault in a lesion case that's our judge in this very case he change his mind later on after a trial but we think he had it right when he addressed it the first time and my third point deals with the effect of these years we've already addressed that to some extent but we also believe that the trial judge compound that his error by expressly continuing to apply the organ presumption against the vessel owner even has he turned to address the cruise negligence and is not to be a make weight in the evidence tipping the scales rather it merely satisfies a prima facia case it's not a presumption of with regard to percentages of fault or with regard to so far which is how the trial judge applied it here and it's not of causation trial judge told us in a footnote that he was still weighing that organ presumption against the owner of the moving vessel as he assessed the cruise fault and so on remand we we that the bridge was an unreasonable obstruction of just close of the quote from city of chicago out of the seven circle which again involved a lawful permitted bridge quote therefore under the comparative fault analysis between a vessel and a stationary object a vessel may minimize its liability by providing evidence that the stationary object contributed to the injury if occur and we ask that the court declare this to be the law  that the very same bridge that the seventh circuit was dealing with seven circuit your honor held that according to the kirby court at the presumption that the court could consider in determining the negligence of the fact facts of the truman report and what those facts are now that's the way the kirby interpreted i am relic i would frankly say that i i believe that kirby already divergence from like i don't think we're creating anything new we follow kirby kirby is in fact the war in the circuit i remember elec was a deviation in my opinion from what the law should be so i i would say yes there is some disagreement there do you agree kirby says you're supposed to look at the let the coastguards order to alter beep evidence you supposed to look at it and consider and the judge decide your are well i agree how do you you know the quotes you've and we've talked about him already how do you get around this language that these to statements are just wrong especially the other evidence other means something different and says i find the order altered does not rebut he's free to argue that other beyond the discussion of presumptions judge strand was talking about the organ presumption and the applicability of it in that section of his is opinion that's what he was was considering but he went on as you've  noted you said moreover i am making findings of fact where you got to skip to the that's the next ambiguity i gave you the worst one for your side the other evidence that's a second worst one what do you think moreover means moreover means in addition in addition i fide even though i've already discussed the orbit presumption he is making findings of fact based on the facts of this case without resort to the presumption of the order rule he is saying that there was pilot error here he is saying that under the circumstances of this case that with the narrowness of this bridge should not have been a factor this pilot did not approach the bridge correctly he was not supervised correctly he had a light told river conditions were normal weather was normal under those facts and circumstances this for causation is when they pushed him so the pilot was standing on their own most of the bridge the pilot should still have been able to clear well another way you could read the order though was first of all i can assess any liability against the enemy because he says he says he can't he says d n he cannot be assessed any share fault simply because a bridge does not meet modern standards so then the question becomes well is is the barge company at fault maybe there are maybe there are incidents where nobody's fault so now we've got to say well is the barge company got a liability i don't know i don't have a job one vision is something where that nobody would be at fault but but in  tort law that's what you have to decide lisa i'm sure and i think part of the issue here is he can see on the the photograph the judge granted clued in his opinion this this accident curse one hundred fifty feet directly so pier the port lead barge right at the airport you mean left or right left correct go it left lead barge hit at the end of that pier this pilot was so far off course but he was virtually into the i would channel well i'm just i'm at the word moral i'm not disputing that that that his findings have negligence as court was supported by the record absent and he you might even argue that had cause but their argument is he applied the wrong standard and that then went about a whole path that got us off off track and even though this the order in which he wrote the opinion your honor he still you still make specific factual findings he does not stop with the oregon presumption i think there would be some logic to the argument of anger and if he had stopped at that part of his opinion and then moved on to damages but he didn't he said stated that he was considering the evidence about the bridge that makes it a difficult passage but the question still becomes on this day under these facts you have a nine barges not fifteen they're empty they're not loaded you have a current that is relatively normal there's no issue here of abnormal whims it's ten to fifteen miles an hour per the testimony all these things are foreseeable and the normal approach to this bridge judges to the right side allowing the current to cure you or to the left there isn't a peer on the right side that obstructs him from doing that he was off way a country mile and he he was nowhere close to where he should have been for a pilot of a reasonable skeel on this fact pattern it's one thing to say that fifteen barges loaded are difficult it's quite another to say those difficult with nine empties going through this bridge our expert mr beacom testified that that's what he called a bicycle toll anybody can ride a bicycle can push this through and that's really reasonableness of the repair costs but they are saying that you could have avoided a lot of the repair costs for by a fairly simple facts that you had done on the north end of the pier why is that not contributory to put in some concrete there instead of what a couple of reasons your honor first of all the u s coast guard is in charge of the protective structures anything you record there has to be submitted plans and they have to be approved so when the south protection cells wiped out in two thousand and fourteen the the railroad chose to replace in kind which does not require a special review process it was a fairly urgent matter because of the  that you had an exposed pier at that point it's not self evident but the coast guard would approve concrete at the south wind coming from the north as barges come down river they have the added momentum of the current which creates a great deal of kinetic energy coming down at this ridge the cement structure acts as an obstacle to that the coast guard is balancing interests when it allows some out because when barges hit the cement there they're apt to break apart the cabling is apt to break and and so you have an issue here of what do we do do we let the barges potentially break apart and possibly spill chemicals if there are chemical barges or do we use  more forgiving structure which does not cause damage which is exactly what happened in this case it's a more forgiving structure less a balancing of interests of the coastguard yes you do it's regulatory role and it's not self evident that that's what they would do on on this and been no evidence presented and in or have the burden of proof on that at the coast guard would have approved such a design nothing was added in the record about that nor was there any thing in the record about what the outcome of the accident would be had that design been in use we simply don't know because there was no reconstruction done so that's how i would answer that you are likely dressed very briefly in terms argument based on a seal of london based on the city of chicago case the city of chicago case involved a bridge owner that had put his original plans covers on some cabling was original covers over time came off exact circumstances not really stated but they were gone by the time that the accident happened so what you have there is a situation where the bridge owner is not in compliance with its permitted plants the bridge owner has allowed its bridge to deteriorate and therefore when the accident happened the bridge owner was found a fall because the bridges configured that they did not comply with the plans that were submitted to the u s coast the bridge which was downstream from a parked barge and the nobody was attending to the bars the barge was left to drift and over a period of several days the bridge tender became alarmed and called the u s coast guard several times but did nothing more than call the coast guard and say hey we've got a problem here this thing's going to come down and hit our ridge of actually the corps found in that case at the state of florida should have done more that they should have perhaps hired a to t move the barge itself there's nothing in that case whatsoever about assessing fault based on bridge design in fact there is no case or fault has been assessed to anyone and you bridge owner based soley on the fact of an unreasonable design that was approved by the coast guard and to the contrary we cited as the go getter case which side of the will in the cases case and  case of texas and pacific which is and will transfer all of which say that the permit is a complete defense to any any argument that verges on reasonable if the coast guard wanted the bridge to be removed the coast guard sense of urgency coming from the regulars on this either with regard to whether we have a duty to protect our property your honor the coast guard determines not only what the configuration is of the bridge but during the history of this bridge the coast guard has determined what the protective structures should be for the piers over time a lock and dam system was created on the mississippi river which led to the types of is the protection and the reasonable care that the railroad exercises to protect its property the coast guard says it approves this design and allows us to protect our structure in that way and by doing  that we protect the pier which in turn wasn't any damage that would be involved when it is struck had there been no protection peter we would be talking about a seventy million dollars damage case with a bridge dial rather than two hundred seventy six thousand dollars and so we are taking reasonable steps and in terms of the argument also leads to a practical problem i think if if you're going to say that in this case the and how does the subsequent case differ from this case how do you exact a percentage or how do you determine a percentage in kirby that's this court said specifically that it would not find negligence per se on the part of the ori are you not if you send this back down and tell the judge to assess fall based on bridge design establishing a person a rule for this race for the future is that not exactly what kirby rejected when it rejected the use of the pennsylvania will you are in effect making it every case where there would be comparative fault on the part of the railroad your honor the railroad is not trying to avoid duties here  the road to simply saying that its duties do not include the duty but in from wants to attribute to us and we we have complied in every way with our permit just granted a factual findings which know what kirby and i and then tell us collectively is that the coastguards findings don't change maritime law the organ presumption still applies and the finder of fact still decides comparative fault to include any shortcomings of the bridge we disagree with the characterization of the city of chicago case i'm not aware of a permit violation in that case i thought the discussion was regarding common law do your fall in that case we had a vessel that actually straight outside of the permit it space at the passage into a recess area in the pier and the court noted that the bridge owner had failed to put up fencing to protect even against that damage to its cables which were on its own within its  n property within its own space turning to go getter that was an organ district court opinion addressing counter claims of negligence against a state that forgetting what we're talking about here is  it would have to find the bridges existence with someone reasonable as to be a denial of due process they noted there was no claim the permit ing authorities had prior to the day of the collision orders structural changes in our case of course they had they had ordered the widening of the bridge  and the go getter court specifically made a finding of fact that the bridge owner was not negligent so we we don't see that here in the present case that the judge he did consider the illusion of proof what he called the other evidence but then as you noted earlier he then dismissed out of hand as a matter of law all that proof because of the permit still left of the pronouncement of law and that's quite far reaching it essentially wipes out the opportunity for comparative fall even in the limited extent of diminishing the bridge owner's damages inhalation cases and arguably he's gone he's gone well beyond anything in syria club or elsewhere to almost create a conflict between the executive branch and the judicial because that what that argument comes down to counsel your time has expired ok case number eighteen dash twenty one forty three is submitted for decision by this court