committed manifest error they were clearly wrong firstly they were clearly wrong they committed clear error when they rely almost entirely on the deposition i'm sorry the testimony of the defendant's psychiatry's against  and dismissing my client's claims for physical injuries and emotional injuries when the psychiatrist did not actually physically examined my client he actually only spent two and a half hours up to two and a half hours on one day three years after the accident asking my question asking my client questions and they again use that to dismiss not only his emotional injury claims but also physical injury claims my client also saw six other doctors including one of their doctors who examined my client to controvert the evidence that my client had these injuries other then the word of the psychiatrist who only spoke to my client one day three years after the accident so this is not egg case the record correct everything all these other doctors are all in the record correct but my client was offered the job had the option of having conservative treatment are surgery and he said well i'll go the conservative  i don't want to do surgery they basically scared to go under and so they try to conserve your treatment and doctor like he said ok that's not working here's an option for surgery well there's no money for surgery my client testified that had i had one hundred and fifty thousand dollars for the coverage of some sort i believe he was getting comp for the st year it's not actually on his workers comp i'm just wondering because normally that would pay for the medical not that it would preclude  you know collateral source rule but normally that would pay for the medical if you needed well all his medical was being taken care of by his attorneys i can really speak to that i can speak to the bills that i'm still getting and i can't be before he saw me again three years after the fact he also said that the record is complete he has consistent signs of anxiety and depression and the record and all the other notes again that again is very on the summer client for up to two and a half hours and that's a liberal estimate but to two and a half hours three to three years after the fact and again he said the p t s d could have cleared up he's not sure but he doesn't think he has it why because he composed himself on the stand he posts on the stand he can recite what happened you know without any hesitation that to me and i'm saying to the court that it should not bar a finding of p t s forecast the path of a hurricane and that's simply not what it is a zone of danger is not a geographical zone it is based on the present sense impression of the victim and simply because the impact did not occur the supreme ability there's only two things that matter number one was a general risk and number two was a general class that you don't have for see the exact consequences there's a diverse ways of the risk can happen and with substantial factor in the brief we think that this was a substantial factor and his emotional and physical injuries thank you for your patience as well right thank you for your time we don't worry about it everyone else can just bend over a bit ok so sorry about that court decision followed allocation limitation to be reversed because it committed several legal and factual errors first the district court committed legal error in admitting the previously undisclosed negligence on the failures of the greek ship product trial mr cunningham offered no opinions neither is expert report or his deposition testimony regarding fall apportionment among the three busses he like was offered no opinions but the louisiana own tug of the rug or lose with robinson filled their duties of care or failed to comply with any illinois rules as i understand it the main problem for your client here in terms of what happened on the river is that the elizabeth continued sliding east contrary to the reasonable expectation of of the other of the other parties and that that's what essentially rules if you look at the reconstruction video it's in the record occurred when they talk about the navigational data that shows the slot what that is the pickton is not where the vessel is going but it's the natural down stream maneuver as it goes around the bend it's naturally sliding as it goes around the bin but if you look at the actual reconstruction video  if you look at the track line we stayed in the middle of the channel all the way down so that probably well that's but that's the problem because mr christiansen kept signaling out i'm kind of back into the back end of the births so they expected so the other the loretta expected him to be moving to the west he said he's kept a christmas that he will be back again in the by fleet but you have to get around the riverbend and navigate the river bend before well that certainly does not come out in the transcript as a district court quoted it of the communication between the communications and if you look at the track line and what actually happened all of his communication happened he backed into by you flee as as good as any mariner could and well that's not even that that's not shown on the video actually right the that's why i referenced the truck on your on the record side of the track on because it shows what is  that is if you look at that record to three hundred and eighty six that shows you exactly how we backed into the fleet and if you see on the reconstruction video whereby you flip was then you'll see that that's exactly what happened he did it this captain had navigated this river bend at night in her river over one hundred times get back to the by you will flee before this was not some new strange or unusual maneuver the issue was is that if you listen on the radio communications that are on the reconstruction video this notion that the other mariners thought that we were going to be moving over to the fleet is not reflected in the audio transcript does see what do you mean yeah there's no complaint that he's not going where they thought he was going this notion this notion that th expected him to be out of the way if they expected him to be out of the way they would have been some radio communication about that it is a notion and legal theory was developed by council after after this case store council for the problem it's we go on that one then we have to say that there was an error in understanding the facts but if you go on your other argument that it doesn't matter whether the elizabeth is in the middle or not because the other people have the duty under rule nine to give way even if they see that elizabeth even if it had indeed slipped over it which i know you do not believe in you think it stayed the course and did perfectly they would still have had the duty to specially the areas t to slow down before it ever got near that because you could see it all the way your own had a clear view of what was going on the whole time that is exactly right and that's why we say the discourse misconstrued rules and it was then we don't have to get into a factual error if it's a legal point about how maritime law right that it is a legal issue about how the rules apply you know wanted to point out that the court the district court also did not have the benefit of the th circuits recent opinion in their loads versus marine services market correct or are so it doesn't matter whether you're in the wrong spot is that is that correct under maritime law i'm going to ask the other side i'm sure they'll tell me that you're not correctly speaking it is correct they have a duty to yield and what happened is when the red overtook us it did not  said we were not moving four hundred feet as we're going around the river bend i understand that's the current but but they are still i mean i'm not if you say i'm backing into this band and we had no obligation to dictate and we did not dictate so that factual finding is an error it's a legal air that same conclusion we did not have that obligation met that those statements that we orchestrated had an obligation dictate is incorrect as a matter of law as license on its th issue more than thirty years he had one incident in the past under the the president one incident passed does not render your captain incompetent in addition if you look at the record the the is the the obligation to revoke an issue suspension proceedings he did not take in they investigated the incident issue a report they did not assess any findings of fault d for taking action against the catholic priests but only on the hand guess what happened the the young pilot only arest t he was cited and the same thing happened to the c next pilots and ammo because he was talking on cell phone whole time and so just to be clear in the notion that that the circumstances were ok and so we comply with a policy that is not an act of negligence that sufficient a feat limitation and i wish that i had more time but i appreciate your honest and thank you well we're studying the briefs carefully believe  there you go thank you good morning you're gonna take off you can i mean if you want to leave it on you may but it's a lot easier to understand when it's off a micron i'm here for snack marine services yellow sea in there sure and we're here today because the allocation of only ten percent fall to the air steve was clearly wrong air sea was the give way vessel under several rules and he didn't give way well not required to slow down to allow the passage to happen it didn't slow down not till after it hit the docks fourteen regarded to move to the starboard side of the channel but he kept steaming straight down the middle of the channel and its pilots at it expected the other vessels to make a hole for him to drive the ship to that shows the point only one point of the vessel but doesn't show the skewer the orientation of the vessel as it goes around the bend and one of our problems with genesis i'm not really here to talk about genesis too much is that they slid the stern slid way out into the middle of the river not four hundred feet per nd but four hundred feet total if they were in the middle of the river though did arest teeny disk doppler slow down air sea certainly needed to get over to avoid this and you know my captain was moving to avoid this also captain satam all was as as this was sliding four hundred feet over he was moving his toe over at the same time that he is trying to get past in the bin of the river at action to stay well clear rule eight which require which is about avoiding collision requires positive action in ample time what we have here is that eris t did not take positive action in ample time it waited till the last nd and it took a reactionary action it had to make a severe swerve the last nd which caused it to oversteer into the docks and go out of control you think you think there is some what how it how would a man i mean did this come out at trial how would proper navigation of the areas t have avoided this situation absolutely your honor and even even while you tell me what the testimony was well that there was numerous experts who justified as to what pilot leoni should have done the absolute objective evidence that everyone agrees to it shows that there is to tuck in behind the elizabeth how about this how about i cross your belt and go between you and the docs there's so much room that my guy says i'm going to cut all the way across your balance over there or we keep the way it is and what does that what does the pilot say only and he says we got plenty aroon come on come on with it see i was i was a little unclear about some of the shortened phrases they're so well your honor so so my  is recognizing with three and a half minutes to go that this very this is a process what they what three and a half minutes but what what was here is t supposed to do in that time to slow down slow down and move over to the starboard a little each other they turn out and then they turn back in so that the they're starting to go around each other let me ask you but you know as a prank i'm in your client's in a weird position because the court found that then he found that there was this open mike that ruined there was an open my son iraq communication those are elements of fault that could have been found if the evidence in the case i everybody involved is evaluated particularly arest t under these rules and there's no reason for judge ash to issue ninety pages of findings of fact inclusions of law hundreds of paragraphs long and then  mix but it has to be a fair bit well what would we what would we do would would you say that we if we found error in the way he had allocated fault is it up to us to make an allocation around but certainly with the heiress he did being the give way vessel that doesn't give way and is the only vessel the hits anything that might cause forty two million dollars worth of damage well it didn't directly cause the other two ships to move right now well i mean i mean that said there we were except that last maneuver where we tried to pull our stern out of the way by pulling on the face wire he is fighting for my client is fighting for his life yes the pull the start of the ways of the heirs to get by and at that time there is tremendous pressure put on the line and it broke and there was testimony that it should have been a heavier line and we should have used more lines but even if the line had not been discarded there's no expert that can say optical microscope and looked at the line it can tell within thirty seconds of when the slot broker so you know we would just ask th the court in fundamental fairness apply the same rules to everybody particularly here i'm not asking for a ticky tack call these are the basic fundamental rules of navigation on this is the river that everybody has to abide by in terms of traffic this is like a guy waiting in a case on the interstate where you have a merge of traffic and someone has a huge side and we're not going to talk about the sun i'll do something i don't understand probably i should understand that it has to do with how they didn't put out their anchor whenever they hit the st time around and then they in the pit in much worse the nd time because they don't have their and i understand there's some kind of light or something in the way in the some perhaps but the but it seemed to me that there was a miscommunication of whether he was supposed to do the anchor or not because he's asking over and over and he's like gnocchi and they're having trouble on that between down over the anchor and it took a while for them to clear the lights of that they could deploy the anchor but pilot only asked for three and a half minutes for the strength to be dropped while that was continuing on and on and on to crash while in an earlier that was up the river they could have and they were going fifteen knots through the current which means ten knots over ground so they were going at max speed they didn't have to be doing that you're on off of used up all my time with  not nd guess the district court's weighing of the facts and it is particularly important in a bench trial where the district court's opportunity to judge witnesses credibility weighs strongly so in this particular day we reviewed to know wrong principles of law but that was not the case here judge ash was a us naval surface warfare officer he fully understood the rules of the road well it's not as demented we're not critiquing judge asked in his abilities not about jass but this is i'm just asking the illegals it's some of these are mixed questions of law in fact you have to get the law right and then you can do what the facts are but the but the judge rules but he did not that we needed to it's found that it went fast but it ultimately needed to yield and it could see the whole time incident fold it well your honor bear in mind what was happening that night and we're talking about a four point five not current is ok where is that your honor it is with captain leonis testimony and then he could not have slowed down because otherwise it would that's my question he did testify that he could have slowed down ok but he also testified that the reason he was going the speed he was going was because the vessel was in ballast but it was trimmed by fifteen feet that means that the stern of the vessel is fifteen feet deep or in the river then the bow which and captain the only testified that created a very stiff feeling with the ship and he needed greater speed in order to maintain his ability to maneuver the ship well let me ask you why does the lair ok air what the allocation of fault is so long as there's no limitation your honor blair does care about the allocation of fault candidly because of alero settled out with the heiress t in advance of the trial and so it does have a bearing in terms of what the dollar amounts will be that will go to divil arrow at the end depending upon what that allocation of fault is but in terms of that allocation of fall judge ash did not hear what he found was that the primary cause of this incident or the actions of the elizabeth and the loretta in engaging in a very risky overtaking maneuver at night in high water in a bend in the channel without knowing of footage of the camera off of the port quarter of the elizabeth showing it backing down the sink with a steep cunningham's reconstruction showing at that precise reconned on the video your honor if you look at the video and it's minute eight hundred and twenty three on the video you'll see that the loretta is parallel to the elizabeth and at that point in time while it was parallel the eris t could have passed safely by and that is why that i believe that judge ash chose not to apply the allocation of fault to the a it could have made it but for the fact that the loretta fell within the path of the air see if you look at the transcript which is exhibit one hundred and seventy four dollars and it's on page number four didn't see it on the video but if he it the question i asked the other counsel was why couldn't the airiest he slow down your honor in this particular case more than five minutes i couldn't see if that far ahead either well they could see probably had a better line of sight but they all vessels were in within sight of each other and yeah when you say there was fog there there was surface fog ok but the fact of the matter is that judge asked found that dearest he should have slowed down but did not and he allocated fault to that but nevertheless still could have safely passed but for the fact that the loretta passed in basically into its path that was the that was the critical time during this event that come on because he didn't want him to fall down they were both facing the current arest he was opposing the current and the libretto was being pushed by the current if the loretta started to slow down then she would be pushed more into the path of the air sea captain leoni kept telling saddam oh come on with it come on with it you're going to fall down on me if you don't and that is precisely what happened in this case that i think also is why judge ash did not cite captain leoni for violation of rule eight because he did take action to avoid clues that he was in constant communication with the namo about exactly what they needed to do as soon as he saw so namo and loretta start to fall in his path he took the invasive maneuvers to starboard and then you'll notice very distinctly he goes port twenty and so he knew that he had avoided the the retta in order to get around the retina so he took the proper of ace of maneuvers at the at the necessary time can we talk about the expert st nd yes or on that ok you two hundred the experts not on the liability of these at not the other two vessels that is correct and that it was elicited by the eris chief counsel what his views were on their responsibilities that is correct and at you know it's very hard to reverse finish the answer your question with respect to the admissibility of that evidence the the burden is upon the affected party to establish substantial prejudice and they have the opportunity post trial to submit anything they want and to judge ash addressing that issue they never did they did not establish substantial prejudice judge ash did not rely upon that decision or his opinion that opinion was twenty percent by mr cunningham and there's nothing in the record that you and not you personally but that they were egged on to get this out there or something like that that there was a secret testimony looming now that could be beneficial and would also benefit from because yarn if i may start with york last question to mr le turnover i want to make something very clear genesis and see nak subpoenaed mr cunningham to come in and testified they wanted the cumulative evidence of alleged arris t fault going to the various violations of the safety management system they were the ones that brought him to the stand and ask questions ok mr cunningham sat in the courtroom for those ten days and heard all the experts heard all the witnesses testify so on cross examination i asked him what i thought was a very experts and so he heard everyone testifying clued in the fact witnesses and so when i asked him did you evaluate in reaching your conclusions as to the ara's did you valuate all three vessels his answer was of course yes i did ok and what was your opinion on the fault and that's when he said well the majority of the fault rests with the other the two tugs that's how that whole thing happened it was pure cross examination i'm on my part and it was allowed by judge examination you don't ask a question that you don't already know the answer to you judge i took a risk that day and luckily it worked so well besides he said your client was twenty percent correct correct correct so if i may i want to make something very clear and i think even though there's a lot of issues that we all dispute i'm fairly certain there's one that we don't none of us dispute ok three pilots red and christianson on the elizabeth robinson all three believed that this three wide meeting in overtaking situation could happen safely on the mississippi river it happens all the time they all believe it could happen they made agreements they spoke to each other those agreements whether they were contrary to the in line rules or not they made those agreements everyone believe that the other would stick to those agree immense and it wasn't until the last minute when things changed and something that's critical so yeah so you're basically saying you did not have to give way because you had superseding agreement exactly on there and if i made the rules are very clear ok rule nine says the vessel proceeding up out of the air steve against the current shall hold as necessary to permit safe passage it's not a requirement that you have to hold it's as necessary based on the evaluation of the pilot and his agreement with those tugs and that's exactly what happened in this situation but if you if you hold too much you lose the ability to steer that's the right word exactly your honor and that's exactly what pilot we only testified and i don't to the ballast because of the bridge tell us how that affects this where the well as you know coming up the mississippi river there are three major bridges so you have to lower the starn of the ocean going vessels so that all the antennas can get under that pilot leoni a very experienced pilot on the mississippi river who had piloted over five hundred ocean going vessels in that river knew the currents knew how that rivers bends and twists go he made the decision that it was not necessary for him to slow down that's all i'm saying your honor and something i really want to point out is that just because they're the privileged vessels doesn't mean that they get to do whatever they want on the river it just doesn't mean that it means they have certain responsibilities and those responsibilities are to follow the agreements they make and or the rules effectively this was a domino effect ok it all was kicked off by the ara ghent and cavalier captain christiansen whose attitude was evaluated by judge ash was evaluated by all the experts who sat in there and whose cavalier attitude is what rendered him incompetent in the eyes of the port ok he started slowing and backing down his engines and started us starboard flanking maneuver at the worst possible time he threw his star right into the loretta below retta had to go to port to avoid his stern broken fits face wire and guess what the loretta stern all of a sudden was right in front of parallel as depicted here this incident would not have happened and it all started with christiansen and the elizabeth and that's why the court having heard from numerous eye witnesses crew members pilot experts navigation experts found the two tugs ninety percent of fault i don't have much time here on his but i would like to address  to issues st limitation liability one thing is for sure sir the judge asked found that there was no evidence that any act or remission by the greek crew members on the  with the finding of limitations prairie steve but one thing that is quite graphic to a non sailor on that video is when you're your captain started screaming in greek one thing and then the other thing and he said why didn't the why didn't the anchor go down why didn't the anchor go down and then you're moving on why don't the anchor go down why didn't the anchor go down crew and he's still going ahead at thirty three or four not your honor i fully appreciate your concern and luckily for me i speak fluent greek so i could understand everything that well i let you know it looks like a roadrunner card tain your honor with all due respect that's exactly the opposite ok the crew were running down the deck trying to get to the anchor as you know it's a seven hundred and eighty three dollars foot vessel to get to the front of the vessel which is where the anchors are ok takes time by the time they got there they had already made the st contact and one of the lights in this was testified to by three members of the crew that were on the front of the vessel when this happened one of the lights from the terminal started to fall on them as any one of us they were afraid for their life they scary and when they had to come back up and start dropping the anchor that's flight took three minutes or however long it took it wasn't that the crew didn't know what they were doing or that there was something else in the farrier's going on not at all so i hope i've address that and as far as the limitation our crew was well trained they were trained in bridge resource management they were trained in the eleven geisha rules their captain met with them before they entered the river to talk about that and most importantly in the mississippi river as many other inland waterways here in the united states and i'm sorry see my time is not i need to have someone go already to realize that they might need the anchor why would they need to ant became problematic he would had someone to go say we may need to do this and that would have been a crew duty that's a very good point your honor they're actually there's two lookouts that said fraud on the anchor duty you're absolutely correct about that ok but these are our seamen they take orders ok they have to hear orders from their senior officers to do that would just take it upon themselves so the chief well officer was running down there to to do all of and twenty six pilot leoni or the big team should have slowed to permit overtaking to be completed before meeting the downtown the downbound toes everest he was up mount against the current prin with plenty of water going over the rudder she could have maintained control at half ahead or less this precaution would have prevented the incident and pilot leoni testified he could have easily slowed down with no issue and even could have of the score to do judge ashleigh valuated all of that evidence he also heard leoni say both of them i knew what we were going to do we had agreements i didn't think it was necessary for me to stop not settle with the areas t prior to trial i believe and shell and moti va believe that the apportionment of fall by judge ash is fully supported by the record and i think what the oral argument here today and two weeks of trial before judge ash illustrated amply is that there were probably twelve different opinions one by every lawyer in that courtroom in terms of what the respective fault of those three vessels were what why is this the argument that you're making because you said it doesn't affect how does this affect your client well i believe that it should be affirmed i mean truly as as being being open and forthright with the court that there absolutely is no clear error out there and that two weeks of trial which were very costly but still he said he pointed out that it doesn't matter what the how does it matter what you portion are because i believe you don't have to go back and do anything else that the issue no not opinion is fully supported by the record now i also want to though to address judge the rod and issue that you had raised and that was the you shoe of the anchor being dropped and i believe mr khadr rose has as it amply described why that there was a delay between the order and the actual falling of the anchor in part because a light had been dislodged from the village arrow dock and hit the portion of the mechanics that is used to drop the anchor but more importantly none of the  here have raised the issue of energy as the intervening superseding call no appellant has raised an issue before used saying that a portion of the damages were somehow attributable to some other and that everyone else wrong then and you're going to get your money  i'm not quite following judge in terms of what you get your money no matter who how the fall apart portion correct true and i also believe and it's in everybody's got their money so it's not like you won't get the money well right that's the guy said remains to be anger been dropped immediately at the time of the order that the nd shell dock wouldn't have been hit so at least that that to me is an issue that hasn't been preserved for appeal and nor is there any record evidence that it would have made any effect but a legal issue that i would like to address with you for which i do think is very significant is the interlock atory ruling by judge saini on the crown zellerbach issue and judge jones i believe you were on the panel when we brought it up on an air lock at four bases and the court found that there wasn't interlocutory review of it but i think it is worthy a review by this panel because it is a remarkable departure the trial court had a remarkable departure from crowns all but ok but but that is only meant tiriel if we were to find that it seemed that santa could not could limit its liability right now and you're absolutely correct ok i just want to do it and i believe that record amply supports that scene due to the face wires among other topics the judge as found cannot limit its liability however i do not believe that the trial court ruling should stand unaddressed because it runs a he clearly said that indemnity language alone which says that insurance can only get attached to the extent and insured has been held liable and paid this is not a provision that provides a personal right a contractual right to an insurer to have to take advantage of limitation of liability and no policy language has been cited by c max ensures that even remotely suggests that they have a policy defense based on a statute of limitations that can be brought personally by the vessel but cannot be bought brought by an insurer and the less there is readily ascertainable language in an insurance contract so what really  do i would like this panel to address that crown zeller back stands for exactly what it says and that and then that the language alone is insufficient for an insurer to raise a contractual rights a limitation because absent addressing that or even perhaps saying that the issue was brought before the court and the issue will not be addressed because ciena and you're expressing no opinion on the veracity or the or the the grounds for which ruling was begs but absent that is a maritime practitioner that district court opinion will be raised by insurers at every opportunity because it purports to interpret crown zeller back but find conclusion that is diametrically opposed to what judge brown found do you actually want us to to get in to whether c and c neck is entitled or not i believe the judge ashes ruling should be affirmed with respect to limitation with risk with same back as well as genesis and that there is evidence in the record and it is far removed from clear error on on that issue and there i do have a vested interest because if i'm not mistaken the cumulative amount of the limitation fines for all three vessels do exceed the amount of recovery by shelling valera and so those are issues for which i believe i have a vested interest i have a vested interest and that judge reconsidering how is to see any order came up separately from the rest of this case it was it was brought up on a motion for partial summary judgment well i know that i know how it got to this chord but how come they were both before judge well we did not raise it believing that it was law of the case and the judge ash wouldn't be in a position to be because he interlocutory things can always be can be reconsidered by a new judge i capacity and i understand might could be reconsidered well again this is just an issue that we had coming into trial on whether it was appropriate for the acid or to reconsider a ruling and judge judge saini clearly said that even though it was in a motion for partial i wish i had the luxury of talking about potentially moot immaterial the issue is an issues where i don't have a really monetary dog in the hunt but i'm here today because my client is a gr accident being caused by my vessels failure to stay parallel the testimony was that my vessel had to kick its turn out in order to be able to kick it back in in order to see saw its way sax there really wasn't caused by the in extremis maneuvers thirty seconds before this accident was caused by the failure to take timely action positive action five minutes before three and a half minutes before two and a half minutes before the pilot leoni said at the two five minute mark i still was in the middle of the river this is six thousand seven hundred and forty seven and i could shape over but he made no steering input for the next two minutes when he says starboard five to two minutes is a long time in the context of any accident but particularly this when it's at night on the river and when he had a country mile he had to hit thirty four miles in order to simply shape over and then he would not have to make such aggressive maneuver to miss are when you say shape over dissipating that the bin is coming up you can't cut it off because there's downbound traffic so you shape over to the starboard side and you follow the starboard back you have to go around a little longer way but there's plenty of depth there that's where the current is in the river but you're claiming that he wouldn't have that laurette or could have continued to overtake the elizabeth and he would have just slid on by plenty of room but what about this so called agreement where he was going to go between him that was proposed there was so much room over there was recognized by my captain that he said hey eric steve what about an option where i cut across and i'm the one who goes over on that side of the dock so clearly there was enough space for a vessel to get over a little bit in order to create some room for this to happen safely and i could see a mother well who if we were to look at the the experts and you know i mean leaving do do concern with the rules of the road and all that but ok well it's a fascinating and very kind of to all of the writings on it and with that i'm sorry to say are you hearing today included thank you thank you