appreciative that we have a little bit of humor during this process i am here with what strikes me as an extraordinary case where one hundred twenty million dollars has been imposed on my client in a situation where the duty that gives rise to that claim is one that's been satisfied by no owner of a board at any time prior to the accident in this case and no time since the accident in this case and where the district court substituted its judgment for the expert agency for exactly what is required in dealing with a single whole bussell in order to prevent the very spill that took place in this and the situation and on those bases both a cover claim and the contract claims ought to be there but the court clearly in the previous proceeding remanded it back to the district court to entertain the question of what is the duty of care that ought to be applied but what would we start with the contract claim here in terms of your argument because if you will prevail and that we do need to reach the court well i think you ought to decide the tort claim in any event because i think there's at least a pretty high result if we some possibility of further review by another court but at this stage i'm happy to turn to the to the contract regulation and the regulations in this case are absolutely clear and we're dealing with a single vessel or i put the vessel that is at most risk of having this kind of an accident take place and so what do you want that situation the regulations w now they have been done fifteen of them are brief thirty three see up or one fifty seven point four five five talk specifically about the need for written materials dealing with really under heel clearance and specific notice being given in the master pilot exchanges and if you compare that to the record in this case is absolutely clear that none of that took place there was never any calculation of the under kill clearance in this instance absolutely that's exactly what sub a refers to because you're talking about this kind of world of a tanker and says that it shall provide the owner operator of the thing ship right shall provide good master was written under  well no actually do they i don't need to do that all i need to do is take advantage of the presumption that the pennsylvania provides to us and says that it's now their obligation to demonstrate by clear and convincing evidence that they're there breach of these regulations which are designed specifically to avoid precisely this kind of accident could in no way append any influence on it and i can really don't think there's any way there's no way in this record that any court could make that kind of a finding so  which factors to consider it is it is in the sense of how do you determine whether or not you know what the clearance is but it's not discretionary as to the question of whether you make any determination of the clearance here is a very clear determination of how much clearance you're supposed to have and what we get from everyone the captain the river pilot but the dock while it also the same things we were going by our expertise and experience in dealing with ship navigation we never did in under kill clearance didn't even know it was a single hole vessel in that and the dock pilot's instance and so we're in a situation where the there is no way out of a finding that they violated the regulation and the district court said well you know it's good enough for government work basically because he said you know i find that there was a good there was an adequate discussion but the whole point of this regulatory scheme if you back to the federal register when this was adopted and what the coast guard said is that this is exactly the problem with not complying with these regulations compliance with that rule death that was suggested it would have been because you didn't get it by late the regulation the presumption is that there is or there is causation but to do in this particular case you don't have to worry about the presumption even because the doc pilot himself said if he had been told that they needed more clearance he would not have he would have waited because the tide was coming and he'd have to go in at low tide he could have waited until the tide came in and if he had waited just a an hour or so the tide would have come in and he would have safely brought that that that tanker entered into the dock and we wouldn't be here now whatever thirteen years after the fact and so it seems to me undeniable at this stage that they put it out that the contract claim on this issue the regulations you save it the resolution requires under q clearance and calculated from the controlling throughout the average depth how do we know that but i think that was i think of all the parties agreed on that actually but that was the testimony but i will check to make sure about that to jordan but it was my that was my understanding was that that was the testimony but at the end of the day it doesn't matter whether how much  i mean it doesn't matter if you want to do the flip stuff looks down analysis you have to get to that because you can avoid that completely by saying there's been undeniably a violation of the regulations because they never once they didn't satisfy the birth the birth  plan they didn't satisfy the master captain exchange and they didn't satisfy the underwater key under the kill under clarence require the question and we know it hasn't in writing this it has to be in writing and they are aimed specifically to prevent precisely what happened in this case that is exactly what the coast guard said it's people's use of judgment rather than sit down and calculate the number and in order to avoid a problem there is a curiosity for me anyway and would occur here and i will i should say in the interest of full disclosure every morning the reason they did i did do a little bit of sealing most of it was on chesapeake bay and i'm something of an expert on running aground don't have an easy answer for that other than you know that this is improbable that well but the problem is is that in trying to figure out whether or not you have enough clearance to get over something it's not just based on the drought it's based on your speed it's space they don't like six or seven different factors that go into it which which can influence how high or low you are and that's which again these are all the reason why there are multiple factors to take into account just let is because you want a thorough analysis of what's going on and so he was lucky to get over the short but at the end of the day if he had known if he had followed the regulations they would never have tried to enter at the end of this and under those circumstances this accident would not have taken place that as i said why the coast guard adopted this very specific supplemental regulation that adopted after the ducted all the other post while these regulations adopted this one because it realized that the sinkhole ships or at the greatest risk and certainly were that new they don't exist any longer and as a consequence that sense it's not required by the coast guard and the federal regulators the cells wouldn't engage in it and we're talking about sonars that are being undertaken in federally controlled water so you're just going to be dribbling around the sunshine in a parking lot for boats or ships looking for something with no guidance and what we know in this case is that when they actually knew where an accident took place they still couldn't find it after the first twenty or so sonar stay on so they added that that they we going to oppose this person this maybe and you know it for question were coming but it strikes me that is the duty imposed here is an extraordinarily specific duty compared to most poor based duties that had developed in the common want tradition i mean to her focus on this specific method to be used it is this this this is striking that way at  understands its utility and that export agency doesn't impose upon itself and to be stupid to have to use this kind of sonar today because it doesn't think it works especially because of the standard really been outlined you know and tribal operator who's bringing in single whole ships a low stage of the tide so they can avoid the marriage costs they are bringing in a product that if it spills is going to be a disaster this so called duty that is being complained out by the other side it certainly is not and easy thing but you know you're always going to find it at the site in summer are the techs the objects there that are on the bottom and then they have to some divers now to look and see what they are we found a pump case and if you look at woods that would be three to the judge's opinion a great big fifteen foot pump k c that's pulled out of the water at our expense  mind my last question this is bet raise a question even of the efficacy of this specific duty that has been imposed by the district court it's one thing to look for something would even  so we want to make money two hundred fifty million dollars a year in revenue and compared back and a modest cost even though it's maybe hard to find a times where it made me expensive the time i'm spending on how you were bad we look at this with me perhaps decision to go a little bit farther and you see a penguin by the house of lords from london from england at a house of lords opinion but here how how does how does the district court's decision here they have basically five requirements and i'll go through the requirements and i'll show you were the evidence is to support the judge's friday the first requirement is the owner shall provide the master with a written under kill clearance guidance that can be found regulation does not require it to be in writing it is not that much prior to getting underway right yes it does seem to argue that the audit were discussions meant that there was adequate structured floated up to thirty seven feet he is concerned about the other components coming out of whatever it sort of loaded with the thirty six six he thought that was super that is evidence of estimating under till clearance he asked on cross examination latitude tact and actually stands for the fact that that general principle and you know some shipping others all speak to the same issue but this court has also reversed trial courts when they have not actually size that discretion well it's not a very decision again different reasons but the court found that the way the district court exercised its discretion was not appropriate period the court made a new law for it determined that that a cost of borrowing approach is simply not available if there is a natural the problem with the federal statute is first the judge takes his discretion away by saying i'm not even going to consider cost of borrowing approach then he takes the federal statute and this is a little unusual most of these cases trial judges are not looking at a period of eleven years and one hundred forty three has set the rate so far as a matter of government policy that for the last seven years it was below one percent there's simply no way it could be considered fair that card and higher fifty five million one hundred forty three when we first suffered a loss at less than word that was was literally twenty million dollars or more higher so there's a significant punitive effect on the party that actually did all the right things i spent one hundred forty three million dollars eighty eight million dollars above it's it's over the limit it did everything percent less than a half a percent at times and nobody in the commercial arena can get money at that cost and also assume the first guy he would have had the money each year to reinvest at that low rate so the effect of what the district court did first eliminating and taking away the ability to use cost of bonding approach and then not really looking at the effect the economic impact of picking a weight that was so most for a seven year period ends up being harmful and punitive and in effect in the way that that we think also the court it should be given some guidance because we don't think district court should require cost of borrowing the burden on the district courts and on parties that then basically go in and engage in a rate proceeding all the discovery that again this is incredibly practical people have to know who's training who's paying they have a commission that means and parkas on that committee where everybody is told where what's going on they can ask the government but a limited resources available to the government so you do it to to do just that and minder standing is that what's actually going on going on out there is that and in front of twelve they conceded that the approach is part and parcel of the safe birth we want to teach when they've got a problem under contract i say speaking only for myself i still don't see how i gets any kind of a tour of so that to me means that if it's your birth you need to keep your birthright of obstruction under negative sciri but you don't control the channel or you know control the approach and you don't have a duty under negligence negligence but i think that that's misunderstanding the distinction between the river and the normal analogy that we all have in our head which is make your driveway whatever whatever it wants to do it can do and we also really want to make the point that parker has this very limited teaching in a limited area to let the that's his get there but on the district court's ruling the federal agen the decision i'm going to bring this ship into the dock was made by the other owner of the dock as opposed to the captain of the masters this ridiculous they clearly made the decision and they said specifically that if they had known of the requirement of the owner of the ship to have one hundred ten percent of the clearance they would have been fact weighted and there is no question about that so that's not and second the question of what do we recognise we have a duty we have a duty if there is a known ha mean you're quiet promised that the ethyl those roy and would arrive safely that was the charred party that's the purpose of the document right right and it would preach that only there's actually one point that i forgot to make which is an important distinction is some of the e e o c the taxman case and others they deal with a hypothetical employment arrangement or why in the patent cases they deal with hypothetical royalty so those cases it's appropriate to use an interest rate like the federal statutory rate which is prospective looking but in the case of d s o s where we were actually out of pocket one hundred forty three million dollars that's a four stroke and so some hardship and you have to cation of that weight over a longer period of time and that's where we think the judge misused his discretion thank you very much thank you