a contract insurance contract on that friday with the exchange of those emails or do we believe that doing about most could face even even proceeds after there's a contract which is which is your position there's no contract and actually both you wan there's something wrong with us that's all they're supposed to contact the insurance company inside by the way you know you may want to reconsider your coverage here because there's something wrong with the vessel that we didn't know two months ago control normally dictates had said that the jobsite was at the steeple chase pier how would that have what difference would that have made in fairchild's quote oh all the difference in the world around it everyone who has testified deposition is extensive talks about everything day what would you want to talk about even if you had made it more clearly well what we wanted to confront him with was the fact that he gave inconsistent statements to the investigators right after the professional engineer and arrange surveyor when he attended on board the barge and viewed not only the barge but also the under the components of the voyage and the trial judge roberts are only determined that those photos and its associated testimony should not be allowed i think you had heard enough and had already come to a conclusion in his mind but obviously he never formalized that because you didn't have the opportunity but the exclusion of that evidence including the exclusion of tica bears the heavy burden to demonstrate why the district judge's decision should be overturned a review of that decision makes clear that despite the fact that judge as rack was a successor to judge the record was very thoroughly considered and it is an extensive record in addition the judge properly held a conference to determine whether any additional wit one of the reasons for giving deference to trial judges the trial judge's ability of the witnesses that did not happen here so why should we still give deference to the trial judge's factual finding your honor the precedent in this court as well as the direction from the nd circuit as well as the direction from the supreme court excuse me is that it is a question of judicial function and it's the function of the district court to handle the trial of a case in the st instance even in the situation of a successor judge those factual findings are accorded deference in this case to only raises a single witness that it suggested the district judge using the power that the successor judge had may wish to recall now if there was a great controversy over mr gundersen stressed money or the testimony of the experts or any other witnesses why were those witnesses not recall with respect to the discussion of the photographs which  alleges that it was denied the opportunity to put in there or to salient points the st is if the party has evidence that is compelling and substantial it doesn't wait till the end of producing a one thousand photographs to show that to the district judge the nd is that in this case it will land it had a unique opportunity because when the case was transferred to a judge as rack it could have asked for the recall of its own expert mr cohen and explained to judge as rock that there were additional photographs which were relevant to salient material points of its case which it wanted to a move on to a slightly different point if you're finished with that point seaworthiness seaworthiness as i understand it has two components to look at both physical rendered the might be on sea worthy isn't that a problem it is not your honor the reason that it is not is that the presence or absence of the standby tug is operational consideration just as it is the pulling of the spuds which was the cause attributed in part to the loss whether or not a tug was on standby did not alter the physical structure in as much as when you look at any vessel there are conditions of wind weather sea and other perils which can exceed that vessels ability to survive one would cross the ocean in a cruise ship but not likely undertake that same voyage in an open canoe and the difference is that there are operational restrictions in where you use a vessel and how you use the fossil and those are the types of operational considerations that were at play here fullness of both what the surveyor provided and what the other expert stated was that the weather conditions with a spud barge are very critical and if the spuds had been left down there was testimony from several witnesses that any barge would have sustained damage in a similar condition and so it is coastal position that that was an operational addition that the surveyor contemplated after the fact that might have been in place but it did not alter the seaworthiness of the might be itself as their own witness testified the underwriter testified was the inland waters of the united states in and around brooklyn new york and there's no issue and mr fairchild himself testified at trial that once he saw that it was being used in coney island which is inland waters  and around new york he looked no further what he had in front of him at the time that he banned coverage was a copy of the charter and that specified an address on surface haven't you in coney island which is adjacent to protected waters meant it was an idiosyncratic statement as to where the barge was going to be used the ocean inlet side there was no testimony below as to what those sides were places w the south shore of coney island as is demonstrated by the charts and diagrams that an exhibit runs east west along the bottom of long island sat on the bottom of long island you don't think you can understand what he meant what he meant by it was  case she said it was not going to be used on the in the ocean and it was not it was used in the inland waters of the united states on the south shore of coney island so there's no ocean around coney island is your is your argument right our argument is that the barge was used fully within the geography specified in the policy and that the underwriter was unconcerned with that location and so there was no misrepresentation nor importantly your honor was there any failure to provide information to atlanta it's important to note that each time coastal received a document from its surveyor the st thing it did was turn around and provide that document  you judge will answer that question she says that it's not going to be used in the ocean your are and it was not used in the ocean it was used on the south shore of coney island and the president of this court going back more than one hundred years is that that is within the inland waters and it's within the coverage of the policy and the risks that have been discussed and that atlanta alleges were different those risks were not material to their own underwriter their own underwriter wasn't asking any questions about where the barge was going to be used beyond noting that the charter provided that it was you being used in and around brooklyn new york i have a question about the alternative basis  r the court's ruling which i understand to be that gundersen was negligent for and i'm quoting failing to heed the weather forecasts and act earlier to have might be spuds lifted  but the judge indicated in her findings that when checked the weather the evening before the incident the prediction was only for one foot seas and the court also found that the waves were four to six feet when the might be was was lost while the emergency plan that that coastal had basically focuses focused on situations where the waves rich reach sixty eight feet so what support is there for the when he looked at the specific conditions that were presented to him he elected to do that i think to have a reading of the plan that requires him to wait until the most extreme condition has developed really wouldn't be a fair reading of that document he had seen throughout the course of the morning that the weather was getting worse and so he executed that plan the experts in this case including atlantics own expert were in uniform agreement that had those spawn's been lifted at the plant been carried out the might be would not have been lost and for all those reasons your honor we think that the district judges determination should be fully affirmed thank you about the definition of she worthiness and your honor is correct the classic definition of she were that is recognized by the authorities and of course for such a ship is fit in all respects for the intended service the intended service here by coastal rose was asking where this barge is going to be used for the very reason of considering if she were there for the intended service he's told it is going to be used on the north side not on the ocean side he takes that into account the new showing his plumber insurance advice that going to the withheld payments issue are the withheld triton payments just only the two hundred and ninety thousand dollars in damage that's listed on page question yes thank you thank you both for your arguments the court or service