nicoletti one of the problems i have with this issue is that there were inconsistency in the documents you know one document said one thing another document that something else which makes it explosion and it doesn't say that this particular shipment was exposed to heat and therefore had a shorter time window so your position that that's not relevant information that had to be warn of the risk that isn't the risk or risk of explosion and even if you say it shouldn't be stored in your state sources the carrier doesn't know why it shouldn't be stored in your heat sources there's no explanation of what risk is whe other planets so it does as a matter of common sense it seems to me the final d t d would be an important document whether it's important that such a supporter found or not i don't know but but it just kind of actual well just on that point wasn't there wasn't there evidence that the terminal explained its normal procedures and you would have had to make a booking request if you thought there needed to be special handling of the curdle what they said prepare our cargo for safe carry under normal conditions in we had the duty to warn the carrier of dangers that the carrier did not know or could not reasonably be expected to know but it's important to remember that the carrier here has duties as well and one of those duties is the duty to use due care to ascertain the nature of the care of the of the goods of the dangerous goods that it has chosen to transport c here had the duty to act reasonably that included the duty to follow the instructions that it was given to use the knowledge it already had the  the facts yes your honor she did and the standard that she came up with we think is novel and dangerously lessens the burden on carriers because in her view the carrier has no duty to heed any warnings or instructions on anything other than the dangerous good declaration it does not have to use information it already has and they can ignore all of this to the peril of the crew in the ship her reasoning is that m s c knew generally about d v be but that this particular shipment of d v d was as we've heard many times now and a ticking time bomb because of the manner in which it was handled what your response is well i know she used that language in the face to decision but here's what she said in phase one she said that the d v d was not quote doomed to put to auto program arise and it would not have done so for seventy days after filling assuming that it was not killed an oxygen needed further and it would not have auto klim right but for the higher than normal temperatures in the hold so she also said that it had we disclosed on the dangerous goods declaration that the to be was heat sensitive she said that would have been sufficient and i position is that we did disclose that we disclosed that in all of the information  instructions for the bill of lading just in terms of general negligence principals wouldn't ship are sending a product that is sensitive or for that could potentially explode wouldn't you be obliged wouldn't ensure that the carrier has warnings that are tied to the actual product you mean warnings after this particular shipment will blow both right but so so so the  because you can't go along on the fact that maybe in a database and then nd there is the particular characteristics of that shipment with the district court where it is an extra danger that you would have to worry was required and the evidence here showed that m s e simply stows goods based on the i m b g so it treats all goods within the same u n number in class the same whether or not we put this on the particular conditions here even if even if there was negligence on our part and i'm not saying there was we don't think there was because we think we warned properly and we prepared this that doesn't excuse and messy negligence and not taking into account all the times that it received dangerous goods declarations from us on d v d that had the heat warning and all the times that it repeated that back to us in the scene way buil the other issue is their negligence it's perfectly possible for us to be negligent and them to be questioned and their negligence here was not using information we warned them as to this particular voyage they deleted fact when they created t type and degree of danger posed by the cargo so really what you're looking at is two aspects of the danger to receive you speak the st aspect the type of danger arguably in this case a carrier may be  expected to know about given the fact this ship it was the we have a in harmony to those in harmony that if you are aware of the general danger which is that the st point you made then we're not talking about strict liability under  we're talking about negligence right because it's a little airy inquiry i would i would agree with that your honor it's what i'm talking about here in addressing its failure to warn straight liability is it is a tougher road although i would think that strict liability isn't applicable here for reasons i could go into later but i'm really addressing this from a failure to warn point of view none of the evidence that counsel talked about regarding the knowledge that m s c had prior to this shipment involve the degree of danger it's the degree of danger which made this shipment so much different than yours and let me ask for a nd look at the st nd so you're seem to be conceding that m s t had knowledge about the general propensity and the heat sensitivity but not the particular dangers pot old that was intentionally don't know your honor because well st of all i think both are required under under the standard but really we didn't always heat sensitive but it's questionable as to whether we also knew that it the obligation to tell us that the code isn't to be applied they have to let us know that in the nd debugger they can write to those they sent over instructions for the bill of lading that said it should be stored above decks for temperature checks and it shouldn't be decks for temperature monitoring right yes but don't expose it to he is a far cry from saying that it's a ticking time bomb and that we've gone out of the wrong port i mean they knew we was dangerous to go out of new orleans but they sent it out of ne construction nevertheless the shipper is negligent in not explaining the particular characteristics of the shipment which added additional risk not respect your honor because they had to explain to deck is not required to stay stowage this was only a request for temperature monitoring which in fact otec were still wanted and this was not the proper means by which to convey this to which this request for special instruction could you  an obligation to to care for the cargo while at the terminal there's no doubt about that but we carried in accordance with the i m g code in the h m o our i mean this is kind of the situation where the shipper knowing that the is dangerous going out of new orleans without telling us it's like putting a box on a conveyor belt the conveyor belt being the i m g code and then allowing it to go into the furnace and burning up and then they claim later it should have gone into the furnace but they told us that it had to go by your up your all your time i want to take another minute to finish up ok basically when we say when they tell us that it has to go by the i am to decode they're basically telling us that we can still would per those terms and the shipper is has an obligation to be aware of the i did you code as well and so everything that happened to this cargo spilled out on the pier and on the ship was off were sealed and the only consequences here here's the thing up well let me close with we didn't know how they manufacture the product we didn't know how they shipped the project product we didn't know that the logistics made a difference the crucial element of this of this cargo is you have to prevent the temperature rising to eighty fahrenheit which is the critical temperature that they chill this product in their plants it starts at forty four dollars s what happened was was because it came early it was almost at eighty s when it was put on the ship that's like thirty five dollars degrees that it increased and it's still such himself said when the product gets above eighty f the clock starts ticking well we don't know how that product is inhibited it's kept in the container and it was that fact that the product o'connor and i represent the shipowner conti and the ship's manager and that's the most of the discussion that you've listened to so far this morning has to do with what warnings may or may not have been conveyed to m s c with regard to the characteristics of this d v d cargo and whether those warnings were sufficient and i would just like to point out that nobody's alleging that any of those warnings got to the ship for whatever reason they didn't get to the ship right thing at this trial to listen to the marine firefighting experts who characterize this is a battle of the experts and indeed it was two experts testify for the ship captain brian hall and for our opponent captain experts seem to agree that you don't open the door when when you think there's a fire behind but captain hall testified in the judge accepted at the opening of the mandolin that it was not foreseeable that it would create an explosion and that's because the crew already believes that there was a fire in the hole the ignition source was raging in the hole was the crew's belief opening a hatch here of a spark  ignite igniting chemical baker is not perceivable to the crew has kept all testified i'd like a couple of points that i'd like to make is that the judge found that there was no here they were in the middle of the ocean they have a finite supply of c o two per shot of c o two and no appreciable defect not even reducing much less eliminating the smoke from the hole and so he ordered a nd shot and to reduce the to reduce the level of the explosive level of the contents of the hole it's significantly lower than to reduce the level that will support a fire fire you've got to get the oxygen levels from twenty one dollars down to about fifteen to prevent an explosion you've got to get it down below nine percent oxygen so even a different protocol for the release of c o two wouldn't have made any difference releasing c o two every half an hour you're going to run out in five hours and the captain made a judgment call they don't know what's caused this they don't know the fire is going to be limited to number four they could have a fire in the engine room so we decided to conser which says you do not ship to new orleans in the summertime the nd was the prolonged stay there ten days the tank container showed up there filling four days early and they went ahead and loaded and sent him down to new orleans hence the cargo sat there for ten days both of those were considered to be substantial factors by the judge the rd was still which below deck which we've already gone through how that came to gig but the fact that it was still below deck adjacent to hot evidence well let me tell you stated the other way you have an instance that is a judgment call by the deck officers on the ship primarily the chief officer who decides when to ventilate and when not it's a judgment call there  that on occasion when they when they do take the temperature of t v people who are close on the ship it didn't happen in this case when they do take the temperature if it's up around as mr plod set up around eighty days they pull it back you know put it on  ok thank you well here from mr johnson them good morning your honor and in this case in this case dope is trying to use an obvious clerical or administrative oversight by jill to not correcting its preview one thousand and eleven of lading shipping protocols in an effort to create perhaps an ambiguity or a conflict regarding the contract terms for the shipment your honor and to borrow a phrase in this case puts all the facts of the foot soldiers in this case the court heard from eighty t witnesses live by deposition by separation of course examination and over four and about four hundred and eighty three exhibits over a most of three week period the trial but they are few absent here and there the issue regarding the temperature instructions words that are specific read and more than just the un number i think that's what that's what i just canceled to be arguing and i'm not sure i understand what your position is on that well my position answer the tardis question putting aside whether it was in to how it was intended or whatever let's assume that it was part of the instructions which it was maybe couldn't have been but it was if it had ended up in the master bill of leaving or in the way didn't follow the instructions now you know i think the answer to your question is the earlier opinion of a judge forced in this regarding stoltz motion for summary judgment on its contract claim against my client that the court said perhaps this  the shipment had it received our warning to the judge didn't believe that and probably because m s c even though it had our instructions for years had never rejected any d v d cargo or any other dangerous cargo before the flamin and the nd point i wanted to make is that if m s c had simply followed the heat warning that we gave it here and instructions on there one was the heat warning and then one was still on deck for temperature monitoring those are separate the heat warning was always intended to be carried through and it always was there was some conflicting testimony on whether we wanted on deck storage or below deck storage the bottom line was that we wanted this stored away from the weather that was below deck or on deck there were these carriers have different policies about whether they will do temperature  monitoring early on some of them did then some of them didn't so but that's a separate instruction from the heat warning had they followed the heat warnings struction we wouldn't be here all right thank you thank you the court will reserve decision as you all may know i was the trial judge on the harmony case so this case brings back lots of memories for me some good and some not so good thank you thank you very much and well we'll move on to the next