as for this morning is alexander against ingram barge company mr brennan please the court my name is kind of brennan i represent the flood claimants on this appeal this appeal involves a number of academically interesting issues regarding federal maritime regulations us shifting burdens on the movement of water and i am going to address all of that during my argument i don't want to make the point at the outset that to my clients my two hundred plus clients this case is very personal thing you begin your brief by saying few if any facts remain subject to dispute we course have an exhaustive i'm not going to say exhausting that and exhaustive district court opinion going through the facts the district court concludes obviously in the end that it's the lockmaster rodriguez who is exclusively responsible soley responsible for the flood and that sounds like a finding of fact to me and so i'm not sure whether you are arguing that it's clearly erroneous or how you get around the facts that are found what what are we supposed to do with these  think the facts throughout the opinion many facts in the opinion demonstrate that ingram was also negligent deployed claimants are not disputing that rodriguez was negligent we are i understand i understand the the focus is on whether it's exclusively rodrigues or whether there is some contribution even a very small contribution from captain wider ingram bar george the lloyd murphy people or you know any of these other candidates well i guess to answer the question based on the based on the record yes the finding of sole proximate cause was clearly erroneous and i understand it's a difficult it's a difficult hill to climb on a bench trial to obtain a reversal but but i think that the that the facts of this case and the governing law establish that to be the case and what i want when i want to fully answer your question and much for that i am but but what i want to to lockmaster was the sole proximate cause of the allision was based on legal errors and errors in application of the law the facts to the law  with respect to regulatory violations ok these are your core group sure your rules that you're talking about here the navigation rules yes that's exactly right and i guess so yeah i mean i guess you're obviously pretty talk about them i'm not sure it's impossible for you to tell me just a sentence or two what you think just take one person captain white should have done that he didn't do yes captain white should up well let me start with a look at captain white should have had a look out somewhere there was no i would that have made any difference what with what what action would he have taken or not taken based on the lookout saying wow i really see a lot of out raft or you know he's already so far down he's already hugging the left side of the river at this point julien when is the lookout supposed to be there he leaves ballard island to put the book out should have been there from the moment that the vessel left ballard island the meaningful violation of the lookout rule that is to say the lookout rule violation that gave rise to a cause of the illusion occurred after rodriguez pretty early in the voyage diverted from the plane ok so the lookout picked the rule is very clear there's no higher duty than to have a look at it and there and  based on not only the legislative history but ingram's own expert who said that for a helmsmen the guy behind the wheel captain white in this case to be an adequate lookout he must have an unobstructed three hundred  sixty degree view he did not he admitted he did not in his testimony and we cite this in the brief he says no i had these cover top barges so there was a blind spot in front of me and  in the barge he's behind bars the barges are in front of him and your view is that he can't see what's going to be off to basically his right side where that where the dam is so that right where the out draft is going to be pulling from the canal right where he's going down is i'm thinking of these pictures that are in your phone and summary you know you've got this side can now that it's gone down river to your left testimony where he said that his vision was obstructed by the cover top margin he specifically said i could not see the out draft until i was right up on top of it which is to say until it was too late to make a call or do anything because of the cover top barges and i would certainly call the court's attention to that testimony because i think it's critical to set a record show that there was a place somebody else would have had an unobstruct view there would have been an unobstructed view from the several of the other vessels or but his sensibility are you saying a lookout could be from a different vessel absolutely you always have to have a look at period ingram did not have a look at the period now what captain white said at trial was look i'm not going to put somebody in jeopardy on the front of my boat to keep a lookout that was his though that he doesn't need to put someone's life at risk to post a lookout on the front barge i don't i don't want to say i know it seems to make sense to me that that if there are other options that you shouldn't put somebody on the front of the barge if you really think he's going to die but you do need but you do need a lookout and there were plenty of opportunities for a lookout there could have been a lookout on the shore and i'll note to the courts that the the lock house rodriguez was and this was where his location was but this certainly wasn't his duty there was a camera that was trained on the outer aft and and putting a lookout or assigning a lookout to look at the updraft from that perspective would have it would have been adequate then somebody would have seen the look at what you have here is that you do not have an adequate lookout period and what's the what he excuse for that that it was too dangerous to have a lookout but it ingrown from its lookout duty the duty to and i don't want to really get into the the rule too much other than to say it is on forgiving it says all vessels using all means at all times and the notion that well somebody told me that the there wasn't going to be a serious out draft does not give rise to a just not eliminate that duty that would be akin to if somebody told you that the light was going to be green as you're driving through an intersection and you not only sort of don't look around before you go through the intersection you don't even look at the light ok that's what happened here and that's not reasonable and if there is an exception to the lookout rule for you know third party third party assurance that things will go perfectly and that you won't have an out draft i haven't seen it anywhere i haven't seen any exception like that from any supreme court case i haven't seen any exceptions like that from the seventh circuit or a district court there is no exception there had to be a lookout and if there were a lookout the burden of having a lookout was minimal and i think this is important if you're talking about burdensome benefits the or if i'm this as i understand it is this is being pushed down river that maybe some guy should be hanging out there on the end of the barge to see the outer after maybe you've suggested that they're communicating by radio i'm not sure what you're suggesting with a lot of different things everyone must commute well no i'm not suggesting a lot of different things i'm suggesting a lot of options any one of which would have been easy if during this captain's meeting or during the earthquake call somebody captain white and laban said we need to look out ok and we're not going to be able to see the outer africa's of these covered top barges until we're right on top of it which will be too late you know i m s your boats involved in this maybe you can use can can keep a lookout on that let's put somebody up in the lock ask any number of things could have been done and there was radio communication among everybody ok so it would have been no problem i guess i do disagree strongly judge with that with the notion that this would have been much of a burden it was just ignored ok there was a look out and and if they had a look out they could have averted this business accident have done not started or changed direction or slowed down like you're right if you have to violation which the district court found you did not but if you did yes if there was a violation and the pennsylvania rule kicks in and what the pennsylvania rules says is that ingram has to show that its violation could not have been a contributory cause again very i don't want to call it extreme but very demanding language right that that's from the supreme court seven circuits followed the seven circuit said the pennsylvania rule needs to be applied strictly and ingram and the district court never once never once demonstrated that failure to see the outer after could not have gates and i think the record shows that that would have happened he could have done that he certainly could have lowered the gates you know what i mean well actually this is sort of probably trivial factual question is fifty five feet as low as the gate ever got we have the transmission that captain white knows it's gone down he thinks it's still going down this is an interim report made but do we know that if they were not lower than fifty five and that that's not a trivial question i'm pretty sure the answer is no however mr once you get past that point there was simply no way to stop the the transit i'm not sure to the answer to that question but i can tell you that it would have been very very late in the raging river you could have stopped the movement of the barges you certainly could have have probably slowed down momentarily and if you couldn't you could certainly call rodriguez and say lower those gates only take four minutes to lower those gates and there is evidence in the record undisputed ok that really just lowering the gates from where they were has sixty feet would have made an enormous difference and would have given the float a much better chance to get through ok so you don't have to get him all that ideally get him all the way down to sixteen feet necessary very soon there is they would have had a much better change and this is in the record it just bringing them down to sixty feet and so i think thirty minute transit which was one mile from ballard's island to the safe harbor of the marcellus canal one mile thirty minute trip and captain ice the captain of the lloyd murphy who was acting as an assistant on the starboard side of the dale heller of the anger above on the radio on the communications channel that all the boats were using that there was a go no go place and that was it precisely five fifteen pm mr rodriguez a lot master began raising the gates instead of lowering them at between five eight hundred five twenty in other words three to five minutes after captain ice resized it over the radio hey we've reached the go no go place so judge would you're completely correct that by the time mr rodriguez and unjustifiably raise the gates to eighty eight feet creating that tremendous out draft that the the code was committed was inside those five dots that you referred to which a fairly large protective peters in the water to help prevent vessels from being driven towards the dam now it's now logically it seems to me that the strength of the out draft that as it turns out the lockmaster never got the gates even to fifty five feet he got to about sixty feet and about the time the tow got to the critical and beyond the no go go place at five eight hundred to five twenty unjustifiably and the reason the district court found as fact that the lockmaster was one hundred percent at fault  proximate cause of this event and justifiably at that point beyond the go no go point he raises the gates do that ever explain what prompted him to do that in the trot this trial which was a ten day trial eight hundred witnesses thirty three depositions that the district court reviewed and as you mentioned exhaustive opinion one hundred twenty seven page rodriguez said this i knew the town was not flooding yes i had a good view of the river level on the right descending back where the town of marcel's is located i had a a gauge river gauge that feeds to my monitor i knew what the river level was and if i had no reason based on my own judgment based on my twenty seven years of experience this lockmaster at this particular location i had no reason to raise the gates but the corps of engineers main and that the corps insisted be the communicator with the lock and larry rodrigues as he said under oath on the witness stand i took that as an order even though jeff griffin isn't a damn operator in fact is a crane supervisor for the corps of engineers on the illinois river and even though with my own instruments pardon me my own visualization of the river bank by surveillance camera my own river gauge my i had another camera trained on the top so i knew exactly where the tunnel was in relation to those five protective peers that are close to the dam i knew exactly where the tow was and the time wasn't yet in the out craft area and he explained after the fact to the coast guard and to his bosses that the corps of engineers mr ridgeway go said oh i never promised to lower the gates to sixteen feet i said i would lower the gates by sixteen ready and so after this accident this terrible accident where truth be told the met all the mariners on all the boats were probably everest certainly the men the ten min on the dale heller were were just very very fortunate that when they when they turned in front of the dam that they didn't flip capsize right at that point and all ten members have drowned what i was getting at is that larry rodrigo's had no good explanation he said i just was following orders and so the district court found as fact that mr adric get this inexplicably and unjustifiably in contradiction of the regulations which put him as the operator of the dam as the authority for manipulating those gates it wasn't up to the mariners to tell them when or how and in fact mr rodriguez in the earth to call told the pennsylvania rule burden shifting doesn't really make a difference here or so i understand how that how that rule works so even if there was a regulatory violation her finding that he was the sole proximate cause resolves the case either way that's correct your honor the the judge the district judge here you know found several things any one of which would result in this court affirming the district ward number one there was violation of the lookout rule in them rule number five moreover therefore ingram is exonerated number two the district court found well even if i were to find a violation say up the lookout rule the lookout role through longer is prudent has that although the burden shifts if the if the defendant and the ship owner shows that the violation could not have caused the accident and then the then the met the burden shifting of the pennsylvania rule is met and then finally the lookout rule  violated if another party is the sole proximate cause then the violator of the lookout rule is not held at fault so three bases for the district court's opinion and  i want to get to the go nogo point again because i think it's extremely important we put in our brief a an excerpt or a graphic because pictures can tell the story better than words many times the the if you saw this bigger and i could have made it bigger but you see the top in front of the tugboat and you see at five twenty seven it's perp and it's parallel to the left  trial exhibit eighty five and there was another trial exhibit that was called trial exhibit eighty eight which is a fascinating exhibit and it was shown several times in court it's a visualization of the trip from ballots island to the accident site at five thirty three pm it shows the exact position of the top of minute by minute by minute i've excerpted just the one at five twenty seven there on that pa five five twenty seven pm on that page but that constructed from these various cameras that people had yes the accident reconstructionist mr fatah nto testified and his and his  eight is his visualisation which is constructed not just from the all the damn cameras this record also included transponders signals from the various vessels in the united states  data the exact second by second position of all the vessels in this flow tele and the speed and everything there was zero dispute over travelers that eighty five are or trial exhibit eighty eight and so at five eighteen for example which is when mr rodriguez began the process of raising the gates from sixty feet not fifty five feet back up to eighty eight that process was completed that is the gates got completely ready as at five twenty seven and the reason for the picture being selected on page thirty two is that at five twenty seven they were well absolutely committed there was there's no way to stop it at that point i guess and these river conditions they just could i mean yes it seems to me that i'm probably not right about this but the higher the gates are the more the river is just flowing downstream and the less the risk would be flooding that i thought the reason they wanted to keep the gates as far down is sixteen feet for just the shortest possible time that the water is dams and basically from chicago down to the mississippi river grafton illinois you step down seven right steps and some of them are sales pool is containing between  this marcell stand and the up river dam which is called stratford on island day it's about a twenty six mile stretch where the river level is kept constant by means of manipulation of the gates and this extreme weather event that was taking place on april the eighteenth two thousand and thirteen this accident happens as as you know at five thirty three pm on that on that late afternoon this extreme weather event then create flooding upstream wealth here on earth the procedural history is important here judge the district court divided this case into three phases this was i just want to point out because mr brennan opened with with with his point about the two hundred townspeople you know his his opening basically assumes phase two which hadn't occurred at what phase one certainly pointed out was this was a record extreme weather event that was becoming more accelerated and more extreme as april the eighteenth progressed from conference call to discuss in general the extreme weather event that was occurring that day and in particular that afternoon and it was during that herc a call involving the coast guard the corps and river industry  white in ice decided at some point that staying at ballard island wasn't feasible option is that right that's right the problem was as the river rose at a at a incredible  rate during the day means of holding the toe including wires up lead to the shore to the trees on ballard's island about one one or one thirty that afternoon in the other one tree gave way they were able to maintain position using their horse power but these were very large towboats lloyd murphy and in the ingram boat they'll heller sixty one hundred horse power each however as the river rose and washed over the river banks upstream anything on the river banks started washing into the river logs trees you name it and while the risk was that afternoon was that one of those and it's called drift in the briefs this drift which could be a tree could get into the large propellers of these boats jammed into the disaster and so the earth could call this flotilla as in extremis situation came to the forefront and this plan including larry rodriguez's participation plus that's in the code of federal regulations similarly the lockmaster has to give permission controls in tree into this marsay else canal you just can't as a mariner a captain on a towboat on the illinois river you can't just on your own decide i'm going to go into the marsh sails canal and park my toe there you have to get permission from the lockmaster so you know once once they're in motion  answer that it's possible to go out with an axe and chop ropes and wires that's a very rare and super  cutting loose cutting loose the barges was an option but the irq up call resulted in a plan that would not create havoc by cutting loose barges which would then drift without any control by any boat down river and possibly take out you know the whole day man this accident certainly was a bad accident but it would have been far worse to cut barges loose and let them drift with the current current speed which was estimated to be in the neighborhood of eight ten miles per hour this was an extremely dangerous situation the irc a call came up with this plan and the key elements of which were only two that is put the towed into the safe harbor of the canal and in order to do that the lockmaster at the right time lowered the gates to sixteen feet thereby reducing dramatically this situation with down river flow the captains were not going to go the captains were not going to go they would have done anything including chopping the wires loose rather than go down and face that out craft and thereby put their m at risk and i want to say one thing on the lookout rule mr brennan neglects to mention in response to judge woods questions that there were lookouts number one the captain in the wheel house captain why plus pilot ron schrader but more importantly this operation included having assisted boats three assists boats one of which we've already discussed the lloyd murphy on the near the stern or the rear part of the tow pushing on the starboard or right side of the out at the head or front of the was the creve coeur and the city of ottawa those are two other assists both so a total of three assists boats were acting as the eyes and ears for captain why and we know they were in radio or some form of community yes they were all in radio contact and captain white could hear all the radio calls captain wide in the captain's meeting need to push here city of ottawa that you get on the head now so that the whole tote as it proceeded just that one mile but very slowly and two mph could proceed safely hugging the left  cending back that's what you call river banks on all the rivers including the illinois so that it could maintain a perfectly lined position to head into that can now and captain why i focus on keeping his toe absolutely perfectly lined up going just the right speed and then captain ice and would say to the three assists while he was one of three the other two assist boats do this do that do that capt white could listen to all that my point is that yes not only was captain white a lookout and an adequate lookout but more importantly for this particular factual issue captain white had the benefit of the experience captains on the creek corps and the city of ottawa that were out at the front where mr brennan posits with twenty twenty hindsight that someone could see the water rushing had a toggle in his lock outs he had the picture and he could zoom in pain in the camera view larry rodrigo's had a great view of the out draft because he could we've watched in the courtroom in the district judge watching the courtroom you could see him zooming in on one of those protective peers and you literally can see a way you know sort of like the wake of a boat coming perpendicular to the perpendicular to the think and certainly the view from the dam camera for is is looking from a different point of view it's looking literally at the wake as opposed to being up river upstream and to the left side of that  but but the point the point is even had at five twenty five twenty one five twenty two five twenty three had there had there had to have one of the captains on the city of ottawa or the captain on the  that captain in the river as you know i'm not sure about this out craft right here which they didn't do the point is that there was no going back they were they were past the point of no return they were committed to the maneuver and unfortunately the lockmaster without justification had raised the gate and created this dangerous situation and as a district court found was the sole proximate would shift at the pennsylvania mall would require some sort of expert testimony demonstrating what maritime custom would have rick wired in this situation because the role i mean it is a regulatory requirement that like all of these regulatory requirement stated in general terms in the specific violation requires maritime expert testimony precisely judge and in fact the plaintiffs are excuse me the flood claimants maritime expert captain kinsey gave no expert want to speak maybe for a couple of minutes on the lookout number one mr a craft has admitted that the out draft was visible and could be seen there is no evidence in the record that anybody on any other assisted boat was acting as a lookout for that outright and the argument tends to completely take away any agency or responsibility that captain white and his pilot troubling but there is zero evidence that anyone looked at the out draft the there was no doubt scotched on the earth a call to look out there was no discussion in the captain's meeting of the lookout there was no discussion no word part of me they did not use that word but they did not go to that substance either your honor nobody said that the whole point of the plan you know that's why we're going to stick to the left side of the bank that's why we're going to try to have the gates down so that we can get a calm enough that we can navigate that last two hundred feet or so two hundred two hundred fifty feet that was the whole point plan and i would submit to you your honor that the out draft was was royally was raging somebody should so you're right it must have changed over time as the gate goes down to perhaps sixty feet or whatever went down to and then it was back up again to eighty eight i guess the outer after the function of the dam right it's absolutely is it absolutely is and cause i think analytically that is the trickiest issue in the case because it stands to reason that if rodriguez was the sole proximate cause of the illusion that nobody else could be a cause of the elation i mean it isn't a real problem that i is it is twofold number one i think if you look at the and the and and the overall opinion of the district court it's clear that the sole proximate cause i'm finding was a was a function flowed from the finding that there were th nobody else was at fault and that there were no regulatory violations ok but number two and i think more importantly is this mentioned earlier that at some point in the transits the sense of a lookout never encouraged the court to to  look at our discussion and to look out because i kept in what was not an adequate lookout the meaningful violation occurred after after rodriguez's violation ok so i want to get five what time are you talking about then i would say roughly i think really rodriguez's violation occurred around five fifteen i think where it was clear that he was diverting from the plane so he started diverting from the plan that was dull problem he wasn't bringing the gates down and the  failure to have a lookout all the sudden became very meaningful because nobody was looking at the outdrive and that's clear and so it makes no sense in this context on these facts to say that that rodrigues put have been that rodriguez says fault somehow we gauge the notion that ingram was at fault but their past point of no return they're not past the point of no return and i'm glad you bring that up your honor they  think the go no go spot is the point where they could board the mission and simply stop but there was nothing that prevented them from simply contacting the lock house and saying lower the gates and as they say in it's in it's in the parade was a finding of fact by the judge the district court judge that just getting it down to sixty feet could have made a real difference so this notion that their options were to completely abort the mission that the transits or alternatively sort of go in blind while point clock do you maintain a proper lookout would have seen the dangerous out draft a proper lookout would have seen the dangers if the lookout if they had station to look out in the regular best case scenario where should the lookout have been and at what point on that clock the tween five fifteen and five thirty when the accident occurs i would probably look out i think probably before five required regulatory scenario would a lookout have observed a dangerous out draft in time to abort oh i think the opposite and did you have any expert testimony on this point glad to bring that up too but i think the answer to your first question is that the out draft could have been observed the entire time ok either from the cameras in the we'll have the testimony is universal that  ner that this accident was about to occur the extreme out draft never really dissipated because the gates never got anywhere near sixteen feet but the timing is important because if it was too late to to do something that would have averted the accident then rodriguez is the sole proximate cause certainly by by by fifteen one could have seen the out jet and been concerned that we're getting closer and closer and this outer after still roiling the gates are still going up and in this context i would ask court i want to time to go through it to look at the communications about the radio transmissions and rule seven which has to be looked at in this context along with these facts because the because the schrader was actually concerned that that's th plan wasn't being followed really on a few minutes into the mission and he said to the captain why they just said they're going down to fifty five feet i thought they were going down to fifteen three that's not quite a quote but that's it's in my brief and captain white who had heard the earlier transmission that also raises some some issues set out now he's just telling us where he's going right now ok and under rule something judy is you know if there's any doubt about the risk you have to deem that there's a risk so i think that you have to put those you have to take those facts into consideration with respect to expert testimony hey there's no requirement i don't think there's a law that says there's a risk client for expert testimony on something like this and be we have expert testimony we have expert testimony from captain shop ingram's navigation expert who said without qualification that the person behind the wheel can be the lookout if he's got a three maritime expert testimony on the causation question the shop testimony that you're referring to has to do with the regulatory violation that you're alleging ok what about the causation that's my response to that would be that causation question i don't know how i could win if the court was to agree that rodriguez was entirely at fault for the alleged right you've got to show that somebody there was some other proximate cause or that there's you know evidence in the  what i discussed earlier about the notion of the soul proximate cause that occurred before ingram's meaningful negligence doesn't logically permit one to wash away engrams and to to find out that  negligent but i don't think there's any requirement for i don't see that there's any cause for argument that we bring in an expert to say that under the facts of this case i don't think we need to bring in an expert to say yes and was somebody had said seen this then they could have made a phone call to the lockmaster and i'm going again include just by reminding the court getting it gets down to sixty feet would have been sufficient and i