you may proceed please the court my name is mike winkleman i represent the plaintiff the appellant gabrielle crossly who is a seventy eight year old woman who went on a cruise the captain decided he was going to drive the ship into her basically a really bad storm and she ends up getting across the room i know you all know that i'll get right to the heart of the matter there's really two legal questions and then some factual questions the legal question is one of what is the proper degree of care that should be applied in a situation like this and what's important to is that because oceania is a cruise ship they are treated as what are called common carriers just like airplanes just like buses like taxis like trains and as common carriers in this sense from supreme court precedent they have heightened obligations under the law but your city of panama judges from eight hundred seventy nine and it's still good law it was not every bite her moronic but if you look at that city of panama case which is cited in my briefs that it's consistent with colonel rick that it's reasonable care to the circumstances but when it's a unique maritime peril that it is a heightened degree of care and that's exactly what city of panama said back in one thousand nine hundred eighty nine and i just to quote what some that's in the brief passengers must take the risk incident to the mode of travel which they select but those risks in the legal sense are only such at the utmost care skill and caution of the carrier in prayer in the preparation management of the means on able to avert in other words that's the supreme court saying fleshing out this a little bit that the duty should really be a reasonable care is the utmost care skill and caution of the carrier and even the next paragraph in city of panama talks about the public policy concerns regarding there was first there was the rainy case judge issues from the second circuit which was out of one nine hundred fifty nine case and that's an important case because it's where lee says in several cases down the road follow ra rainy basically says is we've stated on a number of occasions that our ocean carrier must exercise a very high degree of care for the safety of its passengers and this is where i think it's key it says we hold that the kermadec rule of reasonable care under the circumstances is a political impasse under cases we agreed on that this is where it's it well but here on the camera but here's the here's the new one show just as what's important the extent to which the circumstances surrounding maritime travel are different from those encountered in daily life and involve more danger to the passenger will determine how high degree of care is reasonable in each case in other words the way highways and you being thrown across a room on land of course not judge this is the classic unique maritime peril where this is a cruise ship where a captain has this knowing we decided to go through a really bad storm with extremely high waves and still be turned around and actually tried to avoid this storm and in fact i think even your expert witness testified not dashon deposition and opposition motion for summary judgment that while he might have taken a different route wrong route that he should have he should have gone further up higher up so he could have avoided it and most critically what he said was that well not really ok you are your expert said that he should have been going less than nine knot right correct he said and in these conditions he should have been slower than with the vessels going ok and he also the problem i have with this with the at the end of the re the expert's report you're all these conclusions about how negligent the captain was but i couldn't but the only thing i could really attach it to was the nine knots thing because despite these conclusions the report seems to think that  captain hansen had a report that predicted a certain certain level of wind and a higher level of wind actually happened so  there something else specific besides your expert statement that he should have been going less than nine knots yes what else is there to slow down immediately after the accident within thirty minutes of the incident route given what happened that the storm was bigger than he thought but what says that the captain's plan when he diverted that was when he started was a bad idea or when he chose a certain diversion was a bad idea given what they knew not forecasts aren't dependable what is it that says the captain made a bad choice under this expert's view when he left and when he diverted only a certain way short well first of all i think what you're asking is ultimately a question which should be decided by a jury i don't think we can put it to juries long as you've got an expert who will testify to that and we need to see what the evidence is that he would say what he basically talks about in his reports in that submitted is that basically he would have chosen a different path he would have chosen a different path that would it would have lessened the conditions but i think the most important one in his conclusions number four judge ok these are conclusions in this report there has to be something that backs up those conclusions and we talked about well he should've been gone less than nine knots when the thing he strode down and he entirely rewrote it routed after it so i want to know what makes him negligent before he knows how bad this storm is the opinion number one the regattas master  of the storm because he didn't get a weather forecast for the passage his ship was making before departing hamilton bermuda ok summer two now those are the conclusions right now that you've been in touch and are you on i'm on paper and i'm on page eight under opinions fades or you're on page eight this is i don't understand you didn't get a weather forecast we didn't have a weather forecast but you're saying it was for the long place no the expert had an issue with whether or not the forecasts are accurate or not to me i don't think your decision should turn on that but you're asking what his opinions were he lays out ten different opinions i'm happy happy to read through all of them but let's just go with number ten oceania failed to really use reasonable care on the regatta during this vo these were the conclusions that i was trying to relate to the earlier x that he recounts did not know the weather maps he had were not weather forecasts i couldn't find that explain ok so forget about the one in the next one too if there is an issue with calculating time this is under ten the bullet points here did not happen ten he did not know how to forecast the weather himself well i don't know that you're required to forecast the weather you're themselves  an apt and get a work out so somewhere else i agree with you i think i started number four and i think you're starting to answer ok well it for ever did not have the knowledge or experience to take the normal and safe passage up towards charleston ok that has to be based on on some it's based on his apparent on his opinion and even the next one did not have the knowledge or experience to stay out of the way of the ghost room as much as possible in other words he was fighting against a heavy curtain current the next bullet he drove the regatta into the heart of a storm the conclusions that i was trying to relate to things in the earlier part these are the appear in the earlier part of his report and like i said i got the nine knots that he was going to have the testimony of the captain where he says i i saw that the weather forecast were forty eight the actual weather conditions were forty five percent worse than it was actually forecasted so he knew it was really bad and is that where he decides to take a different route correct ok correct so number one the captain testified that he knew the weather conditions were dramatically worse than what we're forecasted and he still went full speed ahead not only that we have the e mails in the record where he talks about he's e mailing the shoreside captain and telling him the weather conditions are a lot worse so he knows he's in danger and remember judge the district court judge his opinion was particularly that they weren't on notice of the of the severity of the condition that's what this was particularly on and number one there's case law from this district that says you don't need notice when you're dealing with the unique maritime peril and number two of the captain knew precisely how dangerous it was and if it and if it's a question of what was reasonable or was not reasonable this this wasn't a bench trial this wasn't a jury trial this was good morning i'm it please the court jack writer in jordan cautious on behalf of oceana cruises i'll start your honour's by discussing the standard of care in judge to being as you correctly points out there is an unambiguous and unbroken line of authority starting with the united states supreme court income rack and that has continued through multiple circuits including this one that the standard of care is not heightened but the standard of care is what is reasonable under the circumstances supreme  said it is a settled principle of maritime law that he ship owner owes the duty of exercising a reasonable care reasonable care to those who are a lawful aboard the vessel now the court said have examined well what does it mean when we talk about reasonable care have consistently maintained the principle that you don't change the standard you just simply evaluate the facts and compare them to the standard that's been at that's been utilized by the supreme court and the circuits since the supreme court's decision so it may be the case that when one of value waits whether or not the conduct under the circumstances was appropriate then you measure that conduct under the reasonableness standard you don't change the standard you change the examination weighed against the standard and i would submit that that is an appropriate approach because the whole concept so use me of reasonableness and what makes the reasonable in a standard appropriate is its inherent malleability and the fact that it can be applied across the board specific instance or event for which a higher degree of care was reasonable but not was a higher degree or higher standard required so here was a higher degree of care reasonable  that's the standard here and the severe weather and everything else that was going on normally you aren't giving announcements about well and so they they were i agree with that and and to answer to be precise i will point out factually that the weather was reported on a daily basis with the weather was given as a matter of course but your own is absolutely correct yeah but normally the saying the weather is bright and sunny pointed out their expert throws out a lot of conclusions about what his perspective his perception was but they don't have any facts your honour's to identify  because of the conditions he should have been going less than nine knots that's the only facts will argument or point the expert makes but that is not your honor i would submit a fact that's the that's the expert's opinion think you'll find any on it now and i would going back to judge holes point about whether or not the conduct in the standards were met here did the conduct here fulfill the appropriate standard of care i would submit absolutely i want to highlight a couple of significant points here first of all contrary to counsel's comment about that there was no slowing down of the vessel until after the accident that's incorrect as a matter of fact on the contrary captain hansen testified  and there's even an e mail which i'll discuss in a moment but there was there with captain hansen testified that as soon as as he encountered the storm and realized that the weather was going for worse than it had been predicted by the four different methodologies that he had utilized he reduced the comfort speed which was he testified as seven to eight knots per hour so your honor to the extent that the expert was suggesting that he should have gone even lower captain hansen testified corroborated by the log books which are prepared on the vessel contemporaneously with the voyage of the vessel captain hansen testified that the ship reduced was reduced to comfort speed and he said that that happened and this was before the accident and that said what is on the record  what is you said seven to eight knots per hour were kept was captain hanson's testimony undisputed and corroborated by the log books with respect to the fact that he reduced the speed very quickly after the of course is that where is it in the record that's at the record page thirty one dash one pages twenty five forty seven and fifty one where captain hansen was deposed and examined the log books as he was testifying  six to nothing and what time was the reduction there were multiple reductions your honor the first talking about the comfort speed on the comfort speed would have been i believe it approximately five eleven pm shortly after the announcement was made and in fact we have the e mail which is was captain hansen exhibit to captain hansen's deposition in the record page thirty one dash twelve and it's an exhibit  very high winds between fifty and sixty knots from west so i decided to deviate a bit more south for best comfort and safety for everyone the wind force is more stronger than forecasted now that goes right to the heart of the point that council made which was a i believe an accurate that captain hansen didn't deviate his can the course in order to try and avoid the impact of the storm until after the accident that's inaccurate the accident the unfortunate accident and obviously we you know we feel sympathy for mrs cressler but there's no negligence here the unfortunate accident happened after six pm at five eleven this email demonstrates that there was a reduction in the email doesn't reference the reduction but the l books do but the email does reference the fact that captain hanson had started is trajectory further south to try and avoid the storm and two warnings were given can you tell us what time i want to specify the time take a look your honor the first warning was given relatively early in the day i don't have the precise time in front of me and i guess i will i can pull it up will take me just a moment but i don't have the precise time in front of me however the first warning was given very early or very early in the afternoon when i say early in the afternoon  inclement weather started to become evident at six am on november first it was shortly after that it might have even been around noon time that the warning was provided where and again talking about the very specific specificity of the warning here captain well first the captain and then that was followed by the cruise director your honor and the captain in giving the warning and of course this is in the brief but was very clear and specific in his reference reference to the warning in the warning the captain hanson specifically said he said quote use exterior exercise extreme caution when moving around the ship use hand rails when on the stairways captain hansen also and by the way he was reading from a document that's also in the record the advice to the passengers for specific warning conditions he said keep state room bathroom doors and cup boards closed and fingers away from door friends as doors may close suddenly and with some force he specifically stated that the best place to avoid movement is mid deck four or deck five and we have record cites for all of this your honor it's the record these are pages thirty one dash one of his dates to his deposition at pages twenty three pages one thirty five and thirty seven were he talked about and specifically identified the warning that was given and the document reflecting the warning was actually part of his exhibit to his depo then i actually don't think that this lady could have done anything and she was in her state room and she has to go the bathroom i mean that got a move across i mean not saying that all the passengers were instructed to crawl so i don't see what this lady could do it seems to me the big question here is was the captain behaving in a reasonable way and at the warnings were given but those kind of warrants can't save somebody who's in their state room and has to move across their state where oh well your honor i would respectfully disagree this way tell first of all i start from the perspective of the one would look at the circumstances here and the question is was the warning fair and adequate did the warning provide enough information to put a reasonable person on notice to be aware of their surroundings to protect themselves i think it's significant here that there's no dispute that the warnings were given and that the warnings were given repeatedly by twice by the captain once by the cruise director and the crystalise testified that they heard the warnings they understood the warnings they acknowledge the warnings in fact mr kressley testified we didn't need the warnings everyone knew what was going on so with respect to you asked the question well what could she have done differently and i would respectfully submit that the question isn't cressler could have done differently it's whether or not the captain could have done anything different i think that is is the key the problem is that you know the warnings don't really do anything in this case i mean if the ship gets hit by a way that's unexpected and you know she just at that particular moment is moving you've got a problem and she has to move your honor the problem is was the captain negligent or not and your honor you i believe hit the nail right on the head was it unexpected and this event had been happening for hours they knew the ship was pitching and rolling they knew that the waves were hitting against the ship this was not an unexpected and this isn't very significant your honor because the issue of whether or not the vessel even has a duty to warn even has a i would submit that one could argue we didn't even have a duty to warn that we had it in is did was was the ship put into place it shouldn't have been put i understand that's the that's the issue now i want to ask you about this expert's report yes sure the expert says it would have been more prudent and i'm going to talk about whether that satisfies the standard or not to go at a different place in the gulf stream  narrower section where the weather would have been better and my question is when did the captain know that the weather was bad enough that he needed to move to such a place i understand your honor and point here is that it's undisputed that he had no warning and that at six am when he observed the weather was growing worse it is undisputed that it was not significantly worse than weather that the ship had already encountered across the like leg of its journey so this was not a circumstance where and i think it's very significant this is not a circumstance where the captain sailed into a hurricane the captain utilized the best tools available to him to chart an appropriate weather course and in doing so unfortunately came upon a storm adjusted the starosta but he adjusted his route south trying to avoid the storm there they were in the middle of the atlantic you're on i mean there was no it wasn't as if they were had a port next door when the storm came upon how far are they offshore the tom of all this time i'm coming fro to charleston how far out based on pon my recollection they were roughly in the middle between the two points at several hundred miles i know that your are several hundred miles i don't have a percent not between the two points but i'm talking about off of the to how far are they off shore somewhere in north carolina i just recall your on it was at least four or five hundred miles but i don't know if your way out they were there was no sir i don't recall anything in the record on that point i do want to point out i've confirmed that the first announcement the first warning was in fact at noon another one was at five twenty five pm so i can confirm that and that's from captain hansen's deposition at page sixteen and  handrails i'm just curious that you could have gotten to the bathroom by holding on to stuff or did you have to cross the public get the picture there were things to grab on to i don't know there were handrails in the middle of the room but like a  mean your were many things you can kind of gone from place to place holding on to something absolutely and she testified that she did so because she was completely aware of the severity of the time so then it was the heaver the ship that even doing that even her trying to do that caused her to fall it's right and course for what it's for just for the facts of the record she wasn't utilizing the bathroom she was getting up to retrieve a pen from a desk and that's when unfortunately she fell and finally this case is exactly like the miller decision the miller case out of this court which this court affirmed very recently where there was no specific warning given and yet a person who was on a dance floor suddenly the ship was hit by an unexpected violent wave as it was described in the opinion and the passenger was thrown to the floor another person also got injured and in that case the court found that because the danger posed on a ship is open an obvious it was open and obvious to the sense that the ship moves the vessel moves and that was a circumstance where the ship was not in the throes of a storm that was a circumstance where it was there was some movement of the vessel and suddenly the just a couple points that i want to go over i think first as to the warnings i think both your owners have a correct that the warnings that they gave didn't do anything and that's one of our arguments that the warnings were not sufficient i think if you like you even have to given a warning i don't think there's a duty to warn per se like per se but i think when they are aware of a dangerous condition they do have to give it you could if you're referencing an open and obvious argument i would say that's undercut by the fact that they gave the argument that they gave the warning but the point that  making is judge toler you said you know how she can get to the bathroom machine across the floor i compared i compared thank you i compared to being on an airplane where they tell you to buckle up and as they seated here they didn't tell her to stay seated they didn't tell her to buckle up they don't have buckles on the ship so it's a different it's different thing but in not only that but she was at the very front of the ship the bow of the ship judges which is the most admitted undisputed most dangerous place on the ship so she was entitled to a a greater warning but there was a warning that you should move if you have you know the middle of the ship decks four and five that's the safest place if you're you know concerned the captain said he said that gabrielle presley and her husband never said that they heard that warning and it would be different too from what they had there standing written policy which is you can move around if you're going to take a shower hold the handle that doesn't say stay seated she says she was holding on to she moved in the cabin and still it was so bad so she is holding on to absolutely she testif zero gravity thing and if you've ever been on a boat they go up and down this was extremely heavy pitching so she was thrown up into the air and the judge told you one hundred percent correct there was nothing that she could have done ok so that clarifies that then we get to really whether or not at what point the captain should have taken another route or done something i mean you're on a ship a storm comes up and it's really like you don't have strict liability for violent  waves are you going to put it on the passenger or if they do you know if they can i don't i don't now i'm not asking for strict liability like i'm not with us in effect what it is you know when there's a be before he left port but he didn't have that report there wasn't a report like that was there agreed he didn't do anything the whole time he was still playing the talk of what do you contend he should have done here that you have expert testimony that says this is what he should have not because we always every negligence cases you have somebody say no reasonable care would have been blah for x y z and what do you climb he should have done route he should have gone up and around basically more to up towards north carolina and one of the reasons he said that was this captain was sailing right into the gulf stream which is a very strong current that made it even harder for him and judge or stanley picked up on that that he could have taken a more prudent course that's number one number two when he realized he was in this danger he should have slowed down more and this is critical stuff about when he slowed down and i would encourage your honour's look at that he said he slowed down and the logbook show he slowed down at  reduced comfort speed to seven to eight is that not correct that's one hundred percent correct but that's not all the evidence if you look at the deck log your honor said it was the accident was six ten at the entry on it's at six eighteen ship speed reduced for better comfort the speed was reduced again and what the evidence shows is that he went from about about your expert just said he should have done last than not he didn't say what speed and they have evidence they want to seventy eight afterwards that's what that's what they speed one is as mr writer just said was at first as it was at five eleven that was the first production and what was that to it was from eighteen to nine you know you just said four clock was nineteen to nine just the five eleven was from eighteen to nine he just said it's from seven to eight now we look at the log i think you have to look at the logs to see it and you can if you look at the what mr torbert he reduced conference speed to seventy eight and i don't think you have anything definitively on point it's what he says at four twenty five the men and this is page seven the documentary thirty one dash six page seven seventeen twenty five four twenty the master made the second heavy weather announcement twenty five twenty i know for you right i twenty five thank you george seventeen twenty five is five twenty five you're right he makes the the second heavy weather announcement any reduces it from eighteen to nine and you had this speed would have been less upwell he talks about to prevent heavy pitching the ship should have proceeded at a speed where the ship's bell coming off one wave would slowly go have that this is an important case from a policy perspective because this is cruise ships these are common carriers your decision will make a decision as to how safe everyone's cruises into the future you may think for the jury