where on a maritime evidence case where the trial court granted summary judgment to the defendant as we've pointed out in our brief we've raised three different arguments each of which is an independent basis for this court to reverse and remand for further added evidence let me ask you a question about that if you don't mind so if it looked to me when i read through the report and recommendation that the magistrate judge said that there might be some issues of credibility here and that maybe it would be good to have an evidentiary hearing and the district court did not directly address that but just adopted the magistrate judge's report and recommendation and it seems to me that if there is an issue of credibility about that then there is a material issue of facts concerning notice because if if the trier of fact does not believe the carnival witnesses then it seems as though the plaintiff might be entitled to two an instruction a notice and a presumption of notice but if fact does believe the carnival witnesses and that then the truth then the plaintiff would not be entitled to such a presumption and so if one of the issues here which i think it does concerns notice it seems like there might be a material issue of fact about that i just wondered if you could address that for me what are your thoughts on that i agree that there's certainly a material issue of fact as to as to notice  which of course i guess my question and i'm sorry to interrupt but is a little bit more specific which is if there is a credibility question about spoliation does that then equal a material issue of fact  notice question i think it does of though i'm going to sort of question on his premise just a little bit of the credibility determination of the comment about credibility that i recall was not necessarily in the spoliation analysis but in the district the alternatives that the trial court came up with was perhaps it was the plaintiff or the plaintiffs family that damaged the chair and the magistrate then went on to say but a jury may find they back up a step the response to that was there's an affidavit in the record and there's customary from both the plaintiff and her husband that no no none of them in the family had touched the chair prior to the incident and that a straight then dealt with that by saying well gee a reasonable jury could have just disregarded that finding that to be not credible and obviously there's tons of case law including from the united states supreme court saying that credibility determinations in the way of evidence are not things that should be taking place at the summary judgment stage and that really goes to the heart of our wrists its argument that the plaintiff should have been entitle to a an adverse presumption or rather an inference of negligence because the plaintiff has shown that she's entitled to a risk instruction and under the various district court decisions that we cited below when there's a recip a plaintiff is entitle to arrest presumption without regard reasonable care yes your honor and how do you get to how do you get to duty without notice in the st place we see notice as an additional element on top of the duty of reasonable care in other words you need that you have a duty of reasonable care because carnival is a common carrier that has agreed to take the plaintiff and along with thousands of other passengers on these voyages it has a duty to exercise reasonable care toward the plaintiff and all of the passengers so in this circuit as this court is well aware every opinion in maritime negligence cites this you need to show the traditional elements of negligence of duty breach causation and damages as well as notice and that is that the defendant knew or should have known of the danger of the dangerous condition and whether as if that comes in is that because there is this is one of the mishaps a type that ordinarily does not occur in the absence of negligence then the plaintiff is entitle to an inference of negligence then is the burden shifts to the defendant to rebut that presumption i'm not back you up because i think i'm curious how you respond to the statement we made and keef vs bahama cruise line which is ordinary a ship owner is passengers a duty of quote ordinary reasonable care under the circumstances a standard which requires as a prerequisite to imposing liability that the carrier have had actual or constructive notice of the risk creating condition doesn't that suggest that notice rather than being a separate element is actually part of the duty enter the ship owner as the carrier as it does your honor but our position here is that the notice element has been satisfied independently both through the well both through the adverse inference as well as through traditional constructive notice which is the st argument that we've put forth in our brief and that argument just to sort of play that out a little bit is that carnival was on notice because if you look at the evidence carnivals karla's housekeeping manager testified that as part of their every day instructor inspections they come into the cruise line into the passenger cabins they not only visually inspect it but they check it for quote structural soundness and i believe the quote is they will touch the furniture and so if carnival had been actually performing the inspections that it says it was performing a reasonable jury could find that it would have detected that the chair was in what we've called in our brief sort of a hair trigger condition because the testimony was very clear that the moment she sat down into that chair it collapsed instantaneously so it's sure you got you obviously have argued that carnival has view we need to decide that here well none of the district courts the cases that go the other way is on point and i would direct the court to the discussion judge williams is discussion in the land versus celebration where she sort of goes through each of the district court cases that the go the other way and distinguishes them on their facts and in fact the magistrate judge in this case below actually went through a pretty good analysis of why not withstanding just the other district court holdings why as a policy matter he feels that it's necessary to that that a plaintiff does not need to show notice independently where they're proceeding under the race analysis and the reason for that is that there's tons of case law from the supreme court on down that one of the motivating factors of developing maritime law is for consistency with land based law and the magistrate made clear that there eliminate the notice requirement well in this very separate question this i see it they are two separate questions and this court most recently looked at it in sutton versus royal caribbean but expressly left open the question of whether or not the notice requirement does anticipate litigation and that finding is clearly erroneous it is use of discretion to base its summary judgment on that because we know that carnival expressly admitted that it anticipated i mean we have a request for admission that asked admit that the defendant immediately after the incident was reported anticipated litigation arising from the accident response admitted not admitted with reservations with qualifications no explanation admitted even if you put that aside you could look at the look at the testimony of monica petition go who is carnival's corporate representative and she very clearly admitted as well that under these circumstances where the passenger was asked to write a passenger injure report is that the type of situation where card would anticipate litigation the answer was yes and so there really is no basis for the the bad faith here carnivals read that they hung there had on below was that well this was it was destroyed in the reasonable course of operations but let's be clear this was not a situation where the steward came around to the cabin in the ordinary course of cleaning noticed a broken chair in the corner and decided let me get this out of the cabin the you know the record really reveals a pretty shocking scene sequence of calls the front desk reports i think my wife has broken her arm the chair broke underneath her could you sense medical assistance what date was that that was that was within minutes of the accident happening which was on the june th of two thousand and fifteen or so minutes later they call the front desk please send help instead of sending help carnival dispatches a steward who comes takes the chair away and while the steward is there the plaintiffs again repeat we think that she's broken her arm the chair broke obviously that's why you're here is help coming no help is coming they then proceed to decide that they're on they go down to the medical clinic where again they inform the doctor that they think she may have a broken arm and that the chair is to blame and that's borne out by the record of course because the doctor took an x ray of  to determine whether she had a broken arm at the time because he was new right i mean that's what he said sadly yes mazing lee there was nobody on that ship that could read it was qualified to read it x ray so at that time they didn't know whether her arm was broken or not it could have been broken but they had no way of knowing they did not but it was certain to them that it was a serious injury because if it was obvious that the arm was not broken the the doctor would have said you would need an x ray for another words they couldn't rule out that it wasn't broken exactly or they couldn't rule out and also more importantly is that they knew that the chair was to blame and the plaintiff was placing the blame squarely on the chair and this is important because the magistrate's report sort of takes issue with the plaintiff's i think he calls it short on details of the passenger injury statement i'm confused about the timeline up out the steward when he took the chair he brought another chair and replaced it on the chair was still maintained and then we don't know when it was actually discarded do a run of the record is that the steward took the chair away and it was never to be seen again i know but didn't he have a problem not the chair in there i don't believe that there's any testimony about him replacing the chair in mrs we remove and replace which of course is reasonable there's there's but but we're with the window we know the chair was actually destroyed i thought that was light weeks later or something i don't know when it is what the point that that very question was put to carnivals corporate rap mrs bitties go and her response was i asked and we don't know what happened to it was discarded we don't know when we don't know where it ended up and that's the point that they are clearly on notice that this is a serious injury they anticipated litigation and yet they destroyed the chair how what's the evidence that they anticipated litigation or the admission in their in their response in their request for admissions as well as again mr t s goes as the corporate representative her testimony that yes under these circumstances when a passenger reports an injury goes to the the lengths of actually filling out a passenger injury report yes we reasonably anticipate litigation at that point so i don't think that there can be any any question about that can i ask you something when you have a moment and you're sitting down would you go back and take a look at page sixty one of the report and recommendation let me know if you think that that that the magistrate judge there talked about how we would have to more how would have to have a hearing to assess the credibility of witnesses to determine bad faith  judge's good morning and may it please the court my name is cameron eubanks and i represent the carnival cruise line in this case judge rosenbaum i didn't have a chance to look at the report recommendation but i think the issue you were mentioning was i think the the magistrate judge thought of as an issue of tim and he thought that you know instead of just having the spoliation issue just brought out in response a summary judgment there should have been a more formal motion there should have been a more formal it should have been done either sooner or the should have been a something more discreet in that instead of just in the response because he didn't think that even assuming even assuming he said if even assuming if you think there should be a sanction here which he didn't think there should he thought that the sanctions should be there for causation for damages he did not think it should be noticed so he certainly didn't think that there was an open issue let me ask you this let's let's just talk about that for a nd if if there should have been a hearing on spoliation and if it had been done correctly just setting those two issues aside why would it make sense that it would be for anything other than notice when the whole question here goes to whether they would have had notice from the shape of the chair i mean whether they had reason to know why would it why would it go to anything other than that i mean nobody was really seriously contesting anything else and race it so would have taken care of the rest of it why would it go to anything other than notice or why wouldn't it go to notice is probably the better thing with the magistrate judge reason was that it that the spoliation issue wasn't just simply a way to plug in any hole in the plaintiff's case i agree i agree it has to go to the issue but why would it be that looking at the chair to see whether anybody you know whether stewart who was inspecting it should have been able to know that it was in this kind of condition why would that not be what it would go to because that is the notice question that is for sure that is one of the notice issues i think i think that the magistrate judge is thinking that's probably speculation  is kind of one of the issues that came up in the sutton case is you know the plaintiffs have said if we had the chair we would have had an expert in the expert would have been able to test the chair and prove notice and this is what happened and suddenly you know the plaintiffs the disco ball near falls on the passenger's head the expert says well i think that the bolts have slowly undetectably loosened over time and this course from the summary judgment from that that was pure speculation so i think that's going into what the magistrate was finding is that he's i don't see how the having the chair is going to prove notice it would prove something else so that was what he thought he thought the spoliation sayings would be or ration related to something other than notice and it wasn't just the catch all fix to put any hole in their case  and into a little more points on the spoliation we have we have kind of a disconnect we have in reality did karl anticipate litigation based on what happened you know the policy of the corporation is if a passenger goes to the to the clinic and they need something beyond st say anticipation there's litigation is anticipated in those situations because the injuries are more serious and then at that point it triggers an investigation with security and then it goes to maintenance and then it goes to the housekeeping stewards down the chain in that way and what happened here and you could certainly quibble with the doctors decision was he a bit aggressive saying that she needed only st aid or less maybe so especially when he himself said he couldn't read an x ray or sure so was it was a doctor a little ahead of himself possibly but again he thought it was st aid and that's the decision you know the security department they're not they're not doctors and certainly not the housekeepers and so once he makes a decision at a reasonable retention policy i mean is it reasonable to is it i mean this woman has had more than one hundred and twenty thousand dollars worth of damages as far as you know forty physical therapy these three surgeries at this point all kinds of other difficulties that she has as she still can't really use her arm i mean is it a reasonable retention policy or is or could it be at least arguably a question a material issue a fact as to whether might be an issue of bad faith to have a retention policy that is based on a doctor who apparently hasn't been trained in this area his decision about whether or not the chair should be retained i mean is that a reasonable retention policy  think that it is your honor and the vast majority of these of course you're going to hear from carnival three times week carnival has thousands of claims they have hundreds of cases are going to legation and that none of them have the same kind of retention issue this week the times the times where the times where these kind of issues come up are rare so again should the doctor made a different decision maybe but again does that does that reisa level of bad faith on carnival's part certainly not because again if you look at the cases from th vic and fleury this is the the chairs dispose of on the ship that we don't know exactly when but it appears pretty pretty much right up but let me ask you this if if the people who are who the people carnival who have to make determinations about whether litigation is anticipated know that little litigation is anticipated immediately upon the reporting of the incident if they know that right and they have admitted such in this case because that's on the record and we have two different instances of admission here then why would that not be conveyed as part of the retention policy right i mean any time that there is an injury because as my understanding of it is that the treatment was sought beyond sort of cuts and bruises treatment was cut it was sought with a doctor why is that i mean doesn't there i guess my question goes to do there come some point in time or someplace in the spectrum where a retention policy cannot be relied upon because it cannot be in good faith if it is in conflict with  what sort of the higher ups i guess at carnival know and intice a paid about litigation and maybe it is not this case i'm not saying it is or it isn't i'm just saying isn't there a point where there has to be doesn't there have to be some kind of connection between what the higher ups know about when it anticipate when litigation is anticipated and what the retention policy is and here it seems like there's a total disconnect and  don't understand that as i think that i think that they actually they actually do me because what the company's experience is typically when you have something for sale or beyond is when litigation is dissipated the doctor here didn't think this was something that serious and it's only later that she said this cascade of problems that you know the doctor certainly did not anticipate at the time so this was not a kid this is not a case where on the ship somebody said you know what this is one that's definitely going to she's in to have to have all these surgeries in this cascading of problems later on so i think that the retention policy does meet up with what's going on on the ship if the doctor had found that she had a broken arm would that carnival's retention policy have demanded that the chair be retained i think if she had an actual broken arm diagnose it yes there would have been an investigation of the more formal investigation acts and reporting would have been triggered in this case and the chair would have been preserved or more likely have been preserved so yes if she did have a broken arm i would i would say that yes so when did they find out that she did not have a broken arm because the x rays had to be sent to miami before anybody knew that eight as far as on the ship they did i mean they didn't know it wasn't conclusively ruled out on the show isn't that a problem in that that that the chair wasn't preserved when they didn't when they couldn't rule out that her arm was broken again i think that the doctor's decision may have not been reasonable but again you've got to get to this level of bad faith and it just doesn't meet that what you have is maybe a poor decision by ship or doctor maybe the departments are not on the same page it isn't it isn't rising to the level of you know tampering with evidence a consciousness of a weak case the other things that this court is talk about over and over again on the spoliation cases it just doesn't rise to the level that it's honestly it should have been preserved maybe but it's more in the negligence anything isn't getting to that higher standard of misconduct for the spoliation this court over and over and you might be right but see here's my problem if it's i mean why isn't this a credibility issue right i mean why do we not need to hear from the doctor and or somebody from carnival before we can determine whether or not this was just a negligence issue or whether in fact there was something more going on here something of bad faith a judge i think the burden certainly on the plane if they could have deposed a doctor they never did they could have deposed the security people in never did and so then you have carnival having to rebut this specter of bad faith that they're intentionally destroying evidence and there just isn't any evidence of that so i think that that would shift the burden except for the sort of suspicious circumstances that it's not preserved and he doesn't know that her arm isn't broken and the higher ups all think that suppose that litigation wasn't to support it immediately i mean doesn't that don't those circumstances in and of themselves sort of create some kind of credibility question i i don't i don't i don't think so just no i think that based on what happened here you can find that there is no bad faith is a magistrate judge has anyone ever suggested that the doctor had bad faith that he perhaps really knew that the arm was broken negligence i think is a different question whether the doctor should have known but didn't suggest that he knew that it was broken and with evidence no i mean i think that's the implication that the plaintiffs have tried to make in the case but i don't think there's any record of innocence of that of dick dick carnival send the x rays to the nd facility for a view or did it plaintiffs and the x rays standing here judge i do not know that unfortunately and turning to some of the other issues with the notice issue judge you brought this up and this was the question that was left open and sudden is whether res ipsa can simply get around  notice all together and you cited the classic cases keefe and ever and the cruise lines notice requirement as is it's almost absolute in these in these persons or negligence cases we saw this just a few years ago in the pacino decision that even if the cruise line creates the dangerous condition or creates a risk creating conditions so have to establish notice this is a case where the crew members walking down the hallway and he has a bucket of water nice allegedly spills it and you know the issue is do they have to prove notice in that case hours notice obviated because he's created it and so based on pacino and keef and everett and going to the point that you mentioned that the notice the notice really triggers the duty once they know that there's a problem that's when you have a duty to act and so based johnson case when the falling block falls on the crewmembers head or the manhattan by sail case where the loose how your line strikes the passenger or the this court's decision where the dredge sinks in clear daylight and the  category is the player is injured by negligence was a moot question who did it i i would probably say that the following flour barrels probably the class example that one and that's a little more difficult and then you have the rd one which is it's an open question whether it's negligence something  whether it's a rd party who who is cause a player's injury says these are the hardest ones to draw the inference of reasons loquitur and because the inference of negligence the case is extremely weak so it's on the plaintiffs to rule out any other equally a design defect or a manufacturing defect or just wear and tear and that's kind of what you have in this case the crew of carnival inspects the they inspect the the chairs they are pulling out the touching them they're not really distracting the problems with this chair or these chairs but they're doing it and they're doing it in part for the purpose of making sure that the chairs are safe right yes i mean there the chairs are inspected to make sure they're structurally sound evolves generally pulling them out as you're vacuuming and ok but just i just want to make sure i understand the evidence they're not just pulling them out so they can vacuum right i mean they're  also so they can check and make sure that they're safe or not understood in the wrecks correct ok so that's a little different from like a passenger who pulls it out to sit in it would you agree no i think that their their purpose initially the same and to say that well does a passenger look to see whether it's safe before sitting in it i mean is that a normal thing that you would think a passenger would do inspect the chair before sitting down o the chair but i think of a common if you pulled a chair out it was loose or something you would sit in it i mean you're not sure if you noticed that it was loose but you wouldn't be looking for right now i don't think people sit down looking ok but a steward inspecting would be looking for that kind of a thing right yes i would agree ok thank you but the other point i would add on that is the the players husband affidavit he testified that it looked like a fine chair there's nothing observable until it just popped apart  is there any indication that he inspected the chair no i don't i don't think it was while he was inspecting it's or if i'm almost out of time if there's no more questions i would i would ask this quarter speculate from thank you thank you counsel that it shows that i mean they're in the record so it's you know my characterization it's it shows that the pegs had come loose rather than breaking and i looked at the pictures it didn't look like the pin that the leg broken to look like it just have the chair before they move for summary judgment other than in your reply brief you did address it no here there was actually and that's thank you for bringing that up not only did we mention spoliation in opposition to carnivals most of summary judgment purely the facts that we have before us we could instead finds blazon absolutely and if and if if we think that perhaps an evidentiary hearing would have shown different facts that would mandate in favor based on the evidence or you could remain for for further proceedings with instructions that there be an evidentiary hearing with regard to the spoliation issue could we do that even could we do that even if assuming no evidence sought at the trial level well i think you could because frankly the skits to judge reza mom's question parting question this sort of came out of left field the at the very end there is this you know i stand corrected the trial judge did say that you know spoliation sanctions are typically appropriate as factual matters determined in the context of trial and essentially said that you know there may be a question here and essentially it denied without prejudice it looks like  plaintiffs motion for spoliation sanctions but i don't think that there's anything prohibiting this court from saying there is it because remember this did come up in a summary judgment context there is an issue of fact that's been raised by the evidence that is already before the court there's nothing preventing this court to go back and do what they often do in summary judgment cases in fact i handled one of these where i got a reversal from this court and said well we're going to remand for to allow the district court to consider additional issues that were not reaching here so reverse the summary judgment favor of the cruise line defendant but remanded for further proceedings i don't see any reason why the court couldn't do that here if i did talk very briefly about the the design defect in the wear and tear that's been raised in context of the race eps argument council suggesting that well yes there's plenty of evidence in the record that this was wear and tear that this was a design defect but in fact there is no evidence and this ties right into the spoliation issue the reason we can't determine whether or not the chair fell apart as a result of wear and tear or design defect is because they threw away the chair and notice is an issue one way in which you can prove notice is to show that the dangerous condition existed for a sufficient period of time to it have been detected what we've argued is that if we had this share then we could have subjected the chair to some testing and i'm not a chair expert or anything like that but certainly there are experts that could run test and determine that well no this was just a sudden thing that happened and there's no way anybody could have detected it or look you can see from the condition of the glue the petition condition of the pegs that this chair was loose for weeks months whatever but that's the point i'm trying to make here that this is that that would have been critical to our ability to show notice thank you thank you very much will be in recess until tomorrow