for there are a few instances in our brief where we cited to the deposition transcripts contained in the joint appendix of the post the actual joint appendix page but you made me read the entire deposition and i did i found the right pages sorry the trial court committed reversible error in this case when they failed to properly analyze the work done to the entry at the entry and four feet of cell guides in this case the work that was done in listening portugal in two thousand and two but they had records business records showing that there was no damage to those that they were just being modified the there were some rails that were damaged they paid the duty on those because they were repairing them but then the ones there were no records of damage why would they have done anything other than modify those your  there is no proof there was a discussion of business practice but at the end of the trial and the judge took it for what it was war at the end of the trial it does not amount to a proof of that when his vessel came in to portugal in two thousand and two that the sale of the seven entry guides in holds five six and seven war in good order because it does not there was also from are enough here for the for the trial court to rely on there were no records of damage and so and there were records of damage and in the case of the other access shoots well your hon the day the business practice is rebutted proof of that practice shows that there's not a similar circumstance or similar instances or sindar there's not a similar response to a certain situation in this case the business practice that they were trying to show was a practice that there was damage and that damage is fixed within the next court call there are many instances  and specifically where they describe that says that so called practice and mr hale another of the witnesses that appeared by deposition in the trial a port engine here for horizon described that's  situation and you can see from his testimony that there is not such a system such as a it had been a response of repairing damage now when mr kenny when you have better technology and in this case there is proof that they have improved features they were using thicker rails and they extended those rails by six inches or so on each side and this is an improvement over the prior technology why wouldn't that be a modification rather than a repair when you're improving your technology isn't that kind of by definition and in a modification what what has to be analyzed is the repair statute there's only one statute that's at issue here and that is the repair statute and if you look at it of repairs that are due to their duty at fifty percent this is a protectionist statute to protect the american shipyard industry this is this court the press predecessor court the customs of patent appeals court in the case italia nine hundred twenty nine defines what is a repair in this case or the final summary parent of the statute and it says repair is the process of repairing restoration after decay waste injury  also clues includes to mend add to make over it also include that was the shanghai painting case right yes your honor but it's talking it out that's pretty clear that you're repainting something which had worn away but in this case let's assume it's new technology it's something that hadn't been done before victor steels extensions on each end when you have a circumstance like that is that not evidence of modification your honor that shows that it's fixing the problem mr c f c talked about why this was necessary it was necessary because there were recurring instances of fractures in done that is that is repaired you can prove something if even in a modification if something reaches the level of modification where there's a rip this it needs to be repaired to retire if it's if it's in good condition and there's not it's not imperfect it's unsound condition then you can add to it or make a change and that would be a modification what do i understand the government's position right that suppose that you were scheduled to put in hardwood floors and rip out your carpet if your carpets were perfectly fine that would be a modification but if your carpets were damaged and had to have been replaced anyway the fact that you upgraded with something better doesn't suddenly make it a modification it's and brings it over to us we tax them if somebody repairs their existing boat brings that over us we tax them but if they go out and modify it with upgrades we don't tax them just this is just a matter of big picture policy i don't get it i know i know you're bound by it you're stuck with that c c p a swimming pool case and there's nothing you can do about it but i just don't as a matter of policy appreciate or understand why it's like that you well your honor we the president that was set with with the  defining what is what is the repairs gave us the scope of everything that is repair the everything else is not dutiable and when you're saying you could say it's now in this case one of the questions i have for you is why is this a modification or would it be a modification even if what it in your case be repaired even if there was nothing there was nothing wrong with this and suppose that there is actually that every one of the three modified or altered things had been inspected and they were shown to have no damage would you then agree that this is a  it's not a repair suppose i have a big computer system as part of the ship and i am troubled because it never has enough memory i have to keep believing stuff it's it's always insufficient there's nothing wrong with it it operates exactly as it did the day i bought it it doesn't need to be repaired it's just frustrating to me because it's been adequate to meet my current needs if i go into port in portugal and have totally modify my computer system to have more memory and therefore be able to accommodate my needs better with that the studio bill repair or would that be a modification i keep in mind i would refer to that old system is problematic because it constantly forty me because of its lack of capacity to not be able to do everything i want it to do but there was nothing actually wrong with that it worked the same it did the day i bought it what about that situation what steps that would be an on duty of a non doable modification as you said there was no it's just it's acting just like you it when you bought it is just as good that's not the case and that's why what evidence is there that that's not the case in this one because i understand your point of there isn't evidence on the record that it wasn't broken couple double negatives there but i think you follow me yes well what is the evidence that this was so problematic and constantly breaking down such that this was one of these long term problems that had to be replaced your honor there was  my small memory computer example or was the product or did it become at some point defective didn't just have a better design now it works better or was the thing failing and in constant need of repair meaning when those dings and den recurring it was because the system wasn't functioning the way it was the day they bought it and my distinction i'm sorry to be so wordy yes i do your your honor i don't think the two situations are the same because if you have a read the sell trying to get to the heart of was it a poor design that was causing it not to work right or were these three defects well it's likely a combination of both and it's not it's there's another case that sealant service ok so it talks about warranty issues if you have if you have a piece of equipment on the ship and it's because of some sort of a defect in would be a non judicial warranty item but the court said in that land service case that if it goes beyond the twelve month period you can't call something that's two years down the road that the defect in workmanship something other than  hair and that case directly addressed that particular issue but in this case not only are there new cell guides the existing cell guides prone to fracturing but there was no evidence there was inspections done in every other hold on the ship two three four eight nine ten and there was damage and repairs done due to the repairs and those there was just no inspection of the guides and the top of the solid ice in this case because they say that they were going to take them out and replace them but still they had to if there were repairs that were digital repairs and every other one and they're subject to the same rigors of loading it it  good afternoon your honor may please the court my name is evelyn suarez i'm here together with co counsel george bowles representing horizon mine we are here and we submit to the court that the trial court made was correct in his in its decision it correctly interpreted the vessel repair statute one thousand u s d one hundred sixty six in finding that the work met the criteria for  constituting a modification and that the work was not rip it was not a repair mr morris i think it's a factor of finding ten or something where judge wallach says because this was a an upgrade in technology it is per se a modification i think he says it's irrelevant the prior status whether it was damaged or not can properly be the standard is ever irrelevant the prior condition of the refurbished shall we say entity you honor we agree with judge wallach that it is irrelevant to the determination of whether the work is a modification it is relevant to whether there is a repair because there has to be disrepair for there to be a repair what we have here is a new design horizon lines commissioned enable architect and marine engineer to commissioned drawings which which created this new design which had  a funnel shape top to receive the containers so that the crane operator could have a better target it also provided beefier materials in the form of brackets and thickness of steel all those were there were they all reflected a new design that provided improvements and the the reduction of the propensity for whatever i was repairing damage to good s that are clearly inoperable they're broken and i repair him with this new technology that wouldn't make it a modification would it it seems to me that and by the way i think it's conclusion of a lot and not finding of fact but that seems to be what judge wallach saying is once that it it's a newer technology the prior status of the long as i use an upgrade in technology it's not a repair your honor in fact horizon line did repair some of their cells cell entry i understand that's the facts of this case right i'm i'm dealing with the language used by judge wallach and i want to see if that is the kind of language that you would have us include is a guideline for the future of this law your honor i think that the considerations that customs has used has been these criteria which sheds light on whether you have a modification to them come from add an oriental and the following to have to do with a new design and a that provide improvements that is to be distinguished and i think it's mutually exclusive from repair which looks backwards it looks back to the old design and puts it back to that condition but if you are repairing something that is broken and inoperable does it matter that you're using an upgrade in technology to repair it stills or repair isn't it i think i know what you're getting at i think you could use better materials i mean the in the i don't think this is a matter this is this is a way to get around the vessel repair statute instead i think that i know that the company had a choice and it had a program of making these modifications it didn't do it all the time it did it when it had the budget to do it otherwise was there was a repair that was necessary it's repaired but in fact it had this practice of keeping these these cells these the cell entry guys in the cells operational because their job is to carry cargo so when they have a cell that's voided they cannot carry cargo that is the basis for the real routine practice which is which makes sense because they cannot afford to leave cargo behind as mr c n c said if your job is to carry water in a bucket if you have a hole in the bucket you repair it so they constantly repaired now they're also there were some repairs to the other cell and you've got but we don't know if it had to do with the cargo carrying capacity it could be dings it could be you take we also have testimony from the port engineer that you take the opportunity when the ship is in dry dock to make these types of repairs but they they reported the work that were repairs where you're bringing the item back to the condition as repairs and for these this was part of their program of modifying the vessel to provide a new design that not only  reduce the possibilities of damage but also to speed container loading made it easier and that was very important today's environment twenty twenty five years ago that wasn't very important today and terminal in terminals you have to load containers very quickly the other thing is that it made it safer because the containers could jam in the cells and therefore it presented a rather dangerous situation so they embarked on this this you know this  program of updating their their cell entry guides but there was a routine practice of maintaining the the cell entry guides and we would submit that that was shown to the court evidence was presented in the form of mr c f c s testimony mr calls testimony even the memoranda that the two part engineers a wrote indicated that they would they frequently rehabilitated they fixed a fixed damage to the sun what is your best evidence of modification here that that it was a new design that commission's drawings for a new design it was permanently incorporated that would extend aboard the ship it was a new design it in with the as evidenced by the drawings and provided improvements the improvements being increasing the speed and ease of container loading increasing the safety and also reducing the amount of damage that obviously is important to the company because they want to carry cargo but also save the money i mean it was it was and it was a sensible business measure to t honor we would submit that the that the the court correctly interpret this the statute in terms what's repairing making a distinct distinction repairs being bring something back to its former condition sean high what if there's an upgrade in paint that makes it more resistant to rushed is the fact that my ship needs repainting and it's  wearing very quickly is that relevant at all to the fact that i'm using new paint as long as i'm using new paint do i get to claim modification again this is i think a case by case and the only way they can get an answer is to come here to court that's not very good law is it true but there are criteria and the criteria are the modification factors and in this case the work did meet those criteria which is a new design i don't know that improved paint would necessarily provide a new design i don't know that what you know maybe it provided improvements you know that's a matter of  repair that would be a repair your right as opposed to here where is is an improvement but it's a new design and you're not bringing it back and you could have brought it back you have a choice and where as there is a right you have to maintain so you're bringing it back to a good condition here you're bringing it in either case whether it's a refresher or modification the end result would be a good condition my argument is not of modification to the good condition it's in at the end of the day if i had to all the time in the end of the day you're going to you're going to do work that's going to result in good condition but good condition as we said is relevant it is relevant to repair but not necessarily to modification because i think you do have a choice bring it back or do something new and different i would say they're mutually exclusive that the modifications are something different than a repair and you did pay duty on the damage cell guys right even though you modified them with the new technology you know there were different cell dies we we did repairs and we paid duties on that work and but you used the upgraded thicker longer cell guide  steel right now no in fact if you brought it back to the same right we would in some cases they have a program of of implementing these modifications but they didn't do it all at once instead if there were repairs done to other cells they did they chose how many they could do because they had a budget for just so many so they had a choice they could go repair it or they could modify it but in this case they were going to this program we're going to do three we're going to do three sell sell entry we're going to do three and we're doing we're in a modified them this time in fact they later in two thousand and five when mr call was the engineer in charge of the dry dock and he was doing other cell entry guys modifying other sent selling you guys because they had a budget for that for the same ship  alternative fact finding anyway and the only way that that was done was through the asserted business practice but mr c r c who was the person who testified about this business practice said that there were no open four eight nine and ten it's reported by his own admission and that's j a two part repairs that prohibited this thing working they were prepared you know we need to tighten things up we need to fix something but they were still the top five feet of the cell entry guys is where this damage usually occurs and you could find that five sixty four sixty four i'm not following the answers to my question and probably could my question wasn't very clear is the one that  repaired that are admitted by everyone to have been repaired not modified those particular cell entry guides were still operable for say when they pulled into port the repairs were smaller scale and my guess my question there was no evidence at this trial about the cargo carrying capacity of the ship whether everything was able to be carried through trial it was tried to get in by captain gamble but that was kept there was no evidence of that and that's why they were saying there's a failure of proof in this case the only thing that's worth to be analyzed is the repair statute there's no protection for anything else but repairs thank you and we've asked the truck with the reverse thank you mr kenny