i my clients like was cut off and robbie drove six died as a result there is no question as to who was the primary culpable party in this case it was the young mr makiya who wasn't paying attention mother was going fifty miles an hour in a much larger boat but the real question that was presented with respect to the first issue that i've raised in my brief is whether some portion of the responsibility for this actually does in fact that says we must interpret statutes in a manner that provides that rather that that that argues against a reasonable results is it unreasonable to overtaking because these rules require that you know if there's going to a notice of overtaken you do something you've asked in a different in a very interesting way because you referred to it as notice the fact is that the trial judge in this case found that it had to be seen only under thirty four ok but your question with respect to notice is very interesting to me because the noticed our argument here and it is supported by the case law is noticed can come from something other than with respect to the other i on ours that were still at issue in the case but he found specifically in his ruling on summary judgment that robbie was in there was an inference from the evidence that  aware of the fact that this boat was behind him going in precisely the same direction to precisely the same place that is that is in the judge's ruling on summary judgment now what would what the simple fact is notice as you've asked the notice can come from at least two sources according to the case law we've cited notice can obviously come from signalling requirements of thirty four but in point of fact it can come from something else nautically and farwell's cites specifically the howard case for the proposition that where a overtaking boat fails to signal the overtaken boat that obviously there is faulty associated with that but there can be fault associated with the over time he can boats maneuvering if in point of fact they are aware that where of the fact that the over the kingdom it is in fact directly behind them now a visual observation would be a kind of notice that exactly here and that's the osceola case i've cited that's the howard case now another point applicable to your question with respect to statutory interpretation i think is the robinson case in this court because robinson is a case that again had i believe it may have predated rule thirty four but robinson was a case where there court said was yes obviously the over teaching boat was in fact liable because it did not signal its intentions but the over can vote had certain other obligations under the ours including in that particular situation keeping a lookout it was a barge and we were supposed to be somebody keeping a lookout that is not an issue we have raised in this case but the fact is the issue we have raised in this case with respect to rule seventeen a going to trigger the obligations imposed by the course and speed requirement of seventy day he will that it is in fact an absolute will robinson in the bread carefully refutes that of failure to maintain corso speed on the seventeen a one and i have never suggested that it is factually on point my point is simply this that the trial judge in this case rule that thirty four a is an urge upon us when there's there's obviously a huge issue of fact in this case as to whether in point of fact the accident happened as the young people in the boat described it there is there of fact as to whether he did it and the simple fact is that if you should have gone to the jury the question of whether this dramatic reduction in speed obviously if would have been a violation of seventeen a had there been a single  e obvious violation of seven may the question is whether that duty under seventeen a is automatically set aside but if there's been a noncompliance with thirty four and the asio the howard and or i can't deny that that statement is there now i don't know if it is talking about precisely the same fact that we're dealing with here but if the the essence of  second circuit case is in my estimation contrary to obviously not the letter but certainly the the ultimate holding in robinson that there isn't an automatic  elimination of the duties that apply under seventeen a where there has not been compliance with thirty four no follow up and just more obvious question in this case there was no issue before the jury as to whether the  properly man with the lookout right of course not sorta ok point the simple point i'm making is robinson stands for the proposition that where you have a failure to signal by the overtaking boat state the only issue is whether there was reversible error in granting summary judgment on the claim and so far it was as it was based on real seventeen a one there's three principle reasons in support in a firm and here first the plaintiff never raised the argument before the trial court that the jury should have been permitted to determine whether ravi knew or should have known about the motorcraft as it related to rule seventeen that argument was raised with respect to a number of the other i n r as all of which the judge allowed to go to the jury it was not raised here and therefore the easiest course to a decision is simply to conclude that a waiver occurs we parsed through quoting from the brief in the trial record and i'm confident the court looks at the precise arguments in the brief in the trial court and the ruling it will be apparent that that factual dispute issue with respect to this rule was never raised below secondly we believe the court properly interpreted rule seventeen in rule thirty four and correctly concluded that seventeen doesn't apply absent signal and i will address that case law i think there's a way to reconcile it that supportive of the district court's opinion and finally we've argued that any error was harmless because the trial judge did present the factual dispute about negligence did instruct the jury in fact on the presumption that if there was error in any of these other ion ours that that would shift the burden of proof and therefore sending this case back for another trial  in this circumstance given this record doesn't make sense it would only lead to the same result require a lot of cost and energy both on the part of the parties and certainly the dro six family does now want to go through another trial and isn't the right thing under the case law let me go back if i could to focus a little bit on the reading of the rules in the trial court properly relied upon the case of the industry which is the second circuit case and that case said very clearly that the overtaking vessel has to signal and there isn't any obligation for the overtaken vessel it's not going at fault where the overtaking vessel is at fault for not keeping enough distance in other words it's the overtaking vessels obligation to keep far enough back so that it can deal with any unexpected changes in speed which is the issue here and that industry decision cited to us supreme court case and noted that that u s supreme court line of authorities which are cited in the industry and many of which are cited in our brief have never been over ruled it's the obligation of the overtaking vessel to stay far enough back and that only makes sense that's what the rules are and intended to do when when you're out in the water on like on a highway boats can come in all sorts of directions and they can turn in all sorts of directions there aren't clear markers that you can only turn at the corner the way there is and i way and therefore the rules are intended to take that into account and that's why i will seventeen and rule thirty four really have to be read together now counsel has cited a number of other decisions and suggested that t court was wrong and that there should have been a different outcome and i would submit that those cases come in to general categories in one category of those cases the argument is this rule seventeen a one was violated and the court concludes despite the absence of a signal which is our argument the entire case should not be dismissed that is the absence of a signal doesn't end the entire case but let's the claim of negligence if there is some issue and that's what the judge did here the judge said ok we're not going to find a violation of seventeen a one we're going to let you go to the jury with i n r as that have to do with a safe speed maintaining a lookout and so forth all of that was tried to or jury in the jury found ravi was not negligent but the second category of cases are cases in which the overtaking vessel fails to signal comes next to the overtaken vessel so that it is not directly behind and the cases i think are uniform that there is no obligation to look behind but when the overtaking vessel comes to the side so that it is visible this side or that side in the osceola case even uses the language of one side or the other specifically that's a direct quote at that point if the overtaken vassal says well you didn't signal so i'm an attorney anyway there can be liability on the part of the overtaken vessel we don't have those facts here there's no suggestion that the overtaking vessel the master craft was next to visible from this side where this side or in front it is very clear everyone agree is that the overtaken vessel was overtaking vessel was behind and therefore there was no duty for robbie to know about it or to look behind him as he's steering jeffie that's a very critical point it seems to me and the case law as well as a practical understanding of what happens on water in boats makes sense and supports i think what the trial court did now there's a lot of discussion also about well why did the jet skis slow and did it slow abruptly or suddenly and the testimony from the experts was that the jet ski first of all could not abruptly dramatically snow slow this is a vehicle that doesn't have reverse thrust which could make it stop very quickly and it doesn't have brakes so the only way it can slow is by stopping the throttle and coasting to a stop that is not an abrupt sudden stop like somebody slamming on the brakes or like as an airline jet lands and they do the reverse thrust and they stop very quickly on a runway  and even the plaintiff's expert agreed that that is not an accurate characterization that shouldn't stop but regardless of that the expert testimony is also very clear that within the framework of the distance that these vessels were at had jack been looking which tragically he was not he had plenty of time to turn off or to stop even given that the jet ski had slowed and kosta to a stop or two a four mile an hour point so that i think it's important to keep in mind finally there's a lot of speculation and discussion in the record in the briefing about well why did you do this the cases are very clear that somebody has a right to stop and in fact even with the big  c going vessels have a right to stop to turn into where they were going if they are not obligated under these rules to continue on if their course is to go into a word or vessel vessels duty to main course and speed does not arise until the overtaking vessel has made its presence known that was the fundamental basis for the trial court's decision and the simple fact is you do not have to make your presence when in point of fact you know where the overtaking boat is and that's the essence of the position now there's been a lot of talk about how whether he's slowed well the simple fact is the black box shows slow shows that he's slowed from fifty know precisely why he made this dramatic reduction in his speed what we can infer however is that at the time he made that dramatic reduction he was in fact aware of what was behind him and again the trial judge in his decision on summary judgment specifically said i'm letting these other i n r violations go to the jury precisely because there is an issue of fact with respect to whether he did know now with respect to waiver the court has to be aware that robinson was argued strenuously in the trial court with respect to the application of rule thirty four in this a violation of another i n r and that's what robinson stands for ok well thank you council for your arguments today and we do appreciate them will be submitted and you may call the n