ok good morning gentleman can you all hear me just nod yes ok fine thank you thank you for appearing in this unusual situation we appreciate your indulgence and the fact that your all connected well i hope this continues for the entirety of the argument i would just remind you that it just the same as if we were in new orleans we  allow no photos of video or audio recordings of the session please no new telephones if you need to do that so that we won't have interruptions finally we would appreciate if you can give us record citations as you argue because this is a particularly fact intensive case and with that i call number  states this court held that duty is determined by the foreseeability of harm suffered by the complaining party and you're a great lakes this court states that the lower court must consider the facts and circumstances in order to determine immigrants typically use flotation devices including inner tubes to system across about a ship channel and on record on appeal seven dollars to seventy eight dollars it states that it is common knowledge of among law enforcement at the the smuggler argued that it was unforeseeable that he said would be hit by a vessel that was negligently operating the brussel ship channel about lice and at unsafe speed it was talking about the u in circumstances might reasonably have expected to occur we set aside the fact that but they still must and document it and set aside the argument by the u s government this should have been using noice mate or eliminating equipment to warn the us the us coast guard our presence in the water is sufficient to give us forsee ability in this case in support of its ruling in this case the lower court points out that none of the crew members had actually ever seen an illegal alien crossing a brothel ship channel and therefore that no duty was owed by the u being liable liable based on the evidence in the record judge just the plain to request that this court reversed a dismissal of the negligence claim against us the united states and that it rendered that there is foreseeability and that where is that in the record that's on i have it here your honor record on appeal thirty five to two ok and that is a the record shows that on october mad continued to issue number two which is issue number two in this case is and the court held that the person that was said has standing to sue the manufacturer and then nine hundred and ninety eight restatements rd of towards did away with the use of consumer limitation and in two thousand this court increment crumbled versus chambers actually judge wisdom insights to just versus chambers which is in one thousand and forty one supreme court opinion which states quote the states can modify or supplement maritime law by creating a liability which according to you are recognized in force as long and it is not hostile to the tax characteristic features of maritime law or inconsistent with federal legislation by the same token when the common law of a state includes territorial waters main factors to to a seller and the seller to a new kind of plant we are you however that one this accident happened in the territorial waters of the state of texas and texas has adopted the bystander claim which is not hostile the alleged plaintiff was involved in illegal activity yes your honor it i believe it does  we argue that still the manufacturers and sellers from bystander claims is not in an intended feature maritime law nor is there any federal legislation intending issue them from shield manufacturers from by standard law and the standard in justices chambers is not whether it will prejudiced manufacture but whether it will work in material prejudice to maritime law but even if the court thinks that it might present a say holds or mercury the plaintiffs still have the burden of proving their case under believe the tire facts are that i mean it's really a question of expert testimony and i don't want to that you had any expert testimony in there oh then the possibility that it could have happened in response to one of your mr martin and dr banda who state that it's right on the cost right on the cusp of thirty five  froze judd's not the problem is this your honor it's almost like the case with a dynamite dynamite with a short fuse you know there's a pall over the bow that doesn't get corrected unless you've been really fast and so the problem is that you can't see over the balance or speeding and that can't be rights so so the issue is that if your boy you have to go so fast to see where you're going it gives you less reaction time you're on banda that says that at that speed it's so close and also martin is one of my experts that at that speed it's so close that it's that you need to be look at look at it on a case by case basis also there was a problem with a g p s system that the government had because it wasn't properly date stamping the timestamp being the chain of events so at best their calculation of speed is an estimate  the eyeball it because they don't know exactly what it was that time of impact because our g p s was not timestamping the the events it was broken so we don't know exactly what speed they were going at this is just allegations two football fields in the middle of the night across a high traffic shipping channel frequented by towing barges and large tankers the coast guard members here had never encountered a swimmer and the water and there's no in the sort of standard set forth by this court consolidated alumina and re great lakes case in the general class a person that might have been anticipated by a reasonably awful person what we have here is an incredibly unusual time in ny an incredibly unusual place of shipping channel and unusual activity in a shipping channel at midnight which is limiting and doing so in a very unusual manner which is that i'm happy to take a question but either it's seems to me that there is evidence that when he's on the boat itself said that it was not me that if you're out there own the water i did very purpose of determining whether there is in an illegal crossing that you would have exercised summary judgment knowing that that was a possibility i mean even a probability so i you know i had sort of two answers to that as well that the question is of course not whether there is simply a possibility or if i did but in a post i thought there was a shipping channel which might help because i think that it's probably not entirely clear when the coast guard is down there along a fourteen miles of the shipping channel they're not looking across the with the two football fields to see where in the water a human being might be at some type of at some point in the night you know across anywhere in that stretch of water whether they might be to you know immigrants because the only way to actually help somebody if not by staring into the water or to take sort of precautions that involve looking and you know combing through a vast shipping channel is actually look at fernandez waited to see if there were any patrol votes while on this front line and that's what happens they wait on the story line to the can see up and down the shipping channel and they say well there are no patrol boats have coming down that  to kind of jump into the water but that only highlights how i'm usual because type of situation is the fact that individual look for patrol boats going down the shipping channel and then add that point decide to jump into the water in the middle of the night that's what makes this an incredibly unusual type of situation and of like as i mentioned this is a duty that's owed if there's a duty here it's that we're talking about here has expressed that obligation to be lookin for exactly the kind of transaction that happened yeah so again  narcotics but that can't be what creates the beauty of the fact that you know they're doing something be on what a private battle would be doing it is easy suppose the border patrol road although they know it's a high profit kariya and some people are dressed in black trying to spur across the road and the border patrol accidentally run some down that's the same question of forese sop permission from the cops and to speed at times patrol boats to need to speed up because these individuals need to gain experience about how this boat operates and how fast they can or can't be votes international l l c we breathed a number of reasons we believe the summary judgment on behalf of boats and mercury marine ought to be firm and i plan to focus on a couple of the mala dress questions of course on all i think the most important issues to discuss are number one causation and number one and number two the government contractor defense i'll spend a moment towards the end of course addressing the the spousal standing question  judge will it have a question about that and then the restatement issue which is an interesting issue but may not be one that actually needs to be answered in this case no welcome questions at any time on any of these issues as for causation and i want to point out reviewing this is an issue that the plane it did not brief we breathed it in our brief but in their reply they didn't address it so we're khana feuding from the hip as far as what places in the record the plaintiff is rebirthing to those exhibit were a lot of the bankers that affect the trim angle which we noticed in his primary complaint the circumstances in that case were orse different than they are in this case just want to make that clarification the theory is to causation the  that the essentially that the vessel was just going too fast and the way they try to pin that on the product manufacturer is to say that because i believe that visibility was impaired at lower speeds we had to go at a higher and that is simply too far of a stretch to show substantial factor of causation which is the standard here as judge ali pointed out earlier this puzzle was going at around thirty knots the evidence is conclusive on that point there is not a dispute all of the evidence and the record points of this vessel it whether it be technological the expert analysis or the testimony of the coast guard members that were on the vessel at the time that the boat was going between very thirty two knots there w low i don't know your honor the expert analysis was that and this was not contested either the boat planing at around twenty knots at that point visibility begins to improve and the consensus of all of the experts is that visibility is good on this vessel up to around eight knots at which point it begins to disney diminish it reaches plane at twenty knots and by about thirty knots visibility is good again so there's a range of the center of around eight knots to about thirty knots where there is some impairment of visibility what we know what there is absolutely no dispute about in this case is that at the speed this bustle was traveling at the time of the accident there was no impairment of visibility so it doesn't matter whether we're going thirty knots or forty knots or even fifty knots which would have been the upper upper end of the range of this vessel it could be no one a lot faster than weather abouts wise to do that in a commercial shipping channel is an issue not for our parties but the budget we were going thirty knots means that visibility concerns are lower speeds simply do not matter we know that the break in cox and the individual driving the boat was a training  diminished between eight knots and about thirty knots this just wait thank you for noticing it and that perfect internet for months and this is unbelievable i apologize judge us ok been asking questions favorable to you and basically mr musto can correct me but what the big point of this was whether there is no dispute that the appears visibility if that alleged effect has no effect at the speed of the vessel was troubling than it cannot have been a substantial factor in this accident briefly with regard to the propeller guards what was the other complaint that the  about the about the basil the consensus of all the experts again and this is quoting from plaintiff's own expert is that at this speed the propeller guards would not have made a difference at that speed it would have been a traumatic injury and plaintiff would have died almost instantaneously just as well finally says when you just view it is there any expert testimony that challenges that testimony there is not you heard the the argument is that the injuries would have been the less self but does that just mean that she would have drowned laden in she did with the more severe injuries the testimony from for mr bender who is the plaintiff's expert said that if the vessel had been going slower propellor guards would have made injuries less severe but at this speed they would have been traumatic and fatal all saying it would not have made a difference in the end without guards i don't recall the exact verbiage that he used but my impression was that it would have been an immediate traumatic fatal injury all the same just because of the speed of thirty knot you're getting hit by the keel of the boat perhaps even before the pallor is all about would have been fatal it thirty knots whether the propellers had a cage over them or otherwise find that we don't believe the learning there was no evidence that a warning would have made any difference but the simple reason that the coast guard was well aware of the risks i'll address briefly the government contractor defense the coast guard requested and was provided a high speed planing missile this is what they asked for and this is what they were providing we discussed several cases that talk about the approval of precise or reasonably precise precise specification which i think is probably the large sticking point here we have discussed the st case which i think is a great one in our brief there are also a couple of others the cursed outer case that the ils with a pilot restraint system these are ones the staircase and st other both are it's sort of cases that involved safety features that could have correct so just asking for a plane and vessel is not specific enough to require the contractor to kick in the contract community defense and that be fair that alone would not be sufficient that's right on the difference we have in this case and what makes this very much akin to stand out and cursed at her and also the heart of dollars as general dynamics case out of the th circuit is that we as the manufacturer and designer provided the details specifications of our proposed vessel to the coast guard which conducted a in depth extensive evaluation of those specifications and decided to adopt them not only did they decide to prove the but they decided to approve them notwithstanding the absence of safety features that the plane of lead is might have mitigated this actually increased steadily not was an additional strap in the pilot's seat that was omitted the government approved could have been done you could have added that safety feature but the government approved this the defect that you're complaining of was actually inherent in the system that the government approved in this case the defect that the plaintiff is complaining of is inherent in a high speed  coast guard wanted a robust high speed pointing vessel and that's what we provided they prefer they have the government approved the details of the specification clued in the absence of the safety features that usually my depression rate in these cases over the years spent a significant amount of time was actually sequestered in reviewing all the details a high level team of analysts engineers architects stakeholders the users captains all of these people conducting an extensive review of the specific details of this design and said this is good we adopt and approve these details as a basis for the design of this bus and in just like cases i was just discussing that approval is just very briefly on the spousal standing issue just because mr witt i'm sorry judge will without a question there was a probate determination of heirship but we discussed this it's not addressing our brave here but in the district court reefing traveling and that's why i need it the court should be able to hear that and have an evidence you're hearing the other point is on the contractor's offense say post wants you to believe that that they followed the stout opinion that they review evaluate it tested and approved this vessel none of that is is is reflected on the record in fact the i took the deposition of our era haixun the design manager for safe boats at the at the government participate in this assign and it didn't all it did was it it put together the request for quotation but it wasn't it wasn't specific enough to meet that the oil test and again because it's a it's a trade secret say folks had the ultimate decision on this the size of the best oil and the design of a hole is what effects the bow rice and  it just to address mr stan there is no speed limit because you're supposed to travel at a any appropriate speed given the circumstances and and you are correct  stating that that he was trial yet an unsafe speed and it's important to note that the oxygen was decertified he was punished he was reprimanded for going at that speed and there's no reason for him to be going that speed two miles from the mexican is there anything you know i was on the panel that affirmed the conviction of the player here yes john and as i recall it and i could be wrong and maybe you can correct me it was very unusual for this to put this woman who could bear apparently barely swim in a little plastic kids injured two and then start her you know kicking across the ship channel is is there anything in this record about how unusual that was case of course the flotation device and so forth now that raises the issue of foreseeability separate and apart from the fact that she knew how to swim or not whether she would under the cover of darkness it was very probable and it was forese foreseeable that there would be swimmers because at the end of the day that's what they were doing they were looking for illegal aliens how can they say it was not foreseeable that they could actually hit somebody and greece and greece at amanda's you all quoted to  and and and you said that that the fact that that them both may have been speeding that the boat may have been breaking the law was immaterial and therefore my argument is is that the fact that she was undocumented and under the cover of darkness is also immaterial in this stretch of water it is a there's a strong likelihood you're going to hit and you know you going to come across a swimmer and she been swimming across the mississippi it be a different argument no way swims across the mississippi but in brownsville illegal aliens swim across about a ship channel on a regular basis and you know where is your evidence that just in these things that you've already cited yes your honor i've got