day at the beginning i have five major points that i hope the court will take away this morning that like to go through quickly i hope within five minutes and i particularly am arguing this for the union pacific because the union pacific the way the district court decided the case is effectively deprived of the warranty which i'm about to talk about under clause two of the world bill of lading i miller this case already so i will skip a lot of background clause two of the world bill of lading plano is a merchant and it's bound to the world bill of lading under clause tend to world of course was ten to requires that merchant's warrant suitable stowage for the carriage contemplated and it provides for indemnity for any loss or that weight dispersal was improper when he could not account for any weight this for so by the second pallet well there were many reasons for that weight dispersal by the second pallet is by no means shown by the evidence you have to have been dispersing the weight of just the larger crate necessarily have been adequate to disperse the weight because vecchio explained what was required to disperse the weight uniformly and in a christmas tree fashion that's the way he described it the district court looked at exhibit two eighty one which is the lower two pictures which the court will see when it looks at its disc and the district court relied on looking at the picture of the two pallets in exhibit two eighty one these are two pristine palace there undamaged there's not and there's not a mark on and just with the naked eye you can see that one of the pallets the boards are approximately six inches wide not three inches wide if you then look at the pallets that was found in which is the figure one point seven of exhibit one forty two the vecchio report you'll see that the one palak found in the container was all smashed up yeah but i thought the court looked at that picture the one way it was written in the in the decision of the court said that those two palace were at the side of the records that they were actually pallets which were in the wreck itself nothing to the court said indicated he was talking only about the size or the nature of pallet he referred to the materials in the figure and exhibit to anyone as actually being the planks the eight foot apparently eight foot planks and the pallet as actually being materials which were in the container in no way did the court simply refer to exhibit  merely examples of palettes there was no function it was no point to him looking at exhibit to anyone to show what pallets were or what they looked like and in fact the the outer pallet and exhibit to anyone does not match the broken pallet in figure one point seven will do you agree that a second pallet could have made the weight dispersal properly i do not because dr testified very specifically about what was required minimum eight foot but calling it on others but that did not rule out this possibility right he did rule out the possibility well possibility he ruled out any sort of positive proof of any kind that palettes by themselves could have been satisfactory because the done inch or skids if you want to call  that which is required by the test by all the evidence in the record is eight feet long which means that it carries the weight throughout its whole eight foot length spreads it uniformly the possibility of bracketing or the likelihood of bracketing to keep the cargo from sliding but bracketing would in the bracketing serve some purpose and dispersing weight it would not in any way shape or not there's nothing in his record bracketing is strictly as joanna fink said in her email she said that the crate was fixed was bracketed fixed so it would not move that's all bracketing is for there was if it's in the circular forty three d there is a picture of what bracketing looks like it has nothing to do with spreading the weight on the lower or spreading the weight from the downward force of the cargo none it just keeps it from moving hopefully sideways or perhaps forward back that's all  not between the cargo in the floor and the e d n t report which was referenced by the witness plato's witness captain you said that as far as the one  was found in a crate e d and he found that it was in direct contact that's quite words they used with the plywood floor of the container now you might say well how can they tell it well they can tell it by whether there a nail holes in it they could tell it perhaps a number of other ways but their report which was referenced by witness kaplan said that this cargo on peltz was in direct contact with the container floor however they determined that by examining the wreckage so i have to say categorically no the bracketing serves no function vecchio was very clear there had to be eight foot pieces of wood of a proper material not something flimsy and that's what is specified in the rail circular forty three d also forty three d says you've got that they say ten feet it's got to be nail a bullet can have imperfections in it that prevent it from being nailed to the floor that's the requirement of the warranty which is which is applicable to plano evidence of a lashing and the court found that field relied heavily on that report for all of his analysis but he ignored the portion that said the crates were last and you know basically said he picked him and he you know he just picked and chose what he wanted to rely on what he wanted to ignore the court was wrong that he o stated very clearly the basis of his analysis it's true pete in the course of looking it after debris of the container he mentioned everything he saw or didn't see and one of the things he said was he didn't see any lashing nobody else on the lashing either there's not one witness who said they saw any lashing that's fine but vecchio nowhere relied upon the absence of lashing in relation to the crate going through the floor of the container guessed he talked about it but no he did not rely on lashing that was a flat misstatement by the court the court's going to lot of time on my friend spent a lot of time on brief but the explanation that vecchio gave was that the floor was overloaded and because it did not have sufficient supports in the cargo the fifty five inch hole in the floor and fell through the road bit he never ever said anything about lashing having anything to do with the overload he said that there was a static overload i'm static right now standing still here right in the container at the railyard he does talk quite a bit about vertical dynamic loading definitely well but with there's there's a good bit of confusion there is vertical dynamic loading throughout the rail journey or truck journey even the ocean journey there's there's a dynamic loading that means that's why we say i'm static here the static load vecchio said was twice the allowable limit just sitting in the really are when i start moving around i'm no longer static and dynamic so as soon as the train started to move there was dynamic load of the from the motion of the train there had to be the tr goes up and down the train it's way from side to side that's dynamic loading there was confusion between the ratio of the increase in load which is dynamic acceleration and but there were dynamic events of course train going seventy miles an hour over over there the way road bed tracks are is going to bounce around something that's going to put extra stress on what is  overload in a static position that's the dynamic loading that vecchio was talking about and we said that in the brief that there were dynamic events that could have gone over rough switches that could have been could've been any number of things all we do know is and this is the beginning of our carrying our prime aphasia case is that the phrase went through the cross beams it broke through the crust beams this is not an event that happens every day and what i was saying about the union pacific is that what the district court did was it effectively it neutered the warranty the district court agreed with capping chaplaincy agreed there was dynamic overload his numbers were a little different he said it was thirty seven hundred ninety two pounds per linear foot and the maximum allowable is twenty five hundred foot that little mathematics and it's not he agreed with out of anything but a pallet with only a pallet there was that overload and then he said but it doesn't make any difference and here's a key to the whole major team to the court's decision caplan said doesn't make any difference chainline has to give us a container which will stand up to whatever overload we put on that's he said again in his testimony and the court bought into it what that means is that union pacific is left with nothing left with the problem but union pacific or a truck driver is left with nothing because if kalen doesn't give the shipper a container that can withstand five thousand pounds for ten thousand pounds for foot unlimited amounts and the cargo goes through the floor according to kaplan according to the district court then chainline is responsible not the people who put the excessive load in the container what does that mean to poor union pacific that means they got nothing they have to rely on chainline to give a container to the cargo interest that will withstand anything that the cargo interest put in the container what does that mean to the truck driver it means he gets a seal container he stuck with any amount of of overload that the cargo interest put in there and if has not foreseen the unlimited possibility of overload and that car wrecks through the floor of the container well he's driving down want to chicago streets you could have a crash like we had here some years ago where a minivan burned when a light bar fell off a bit of a truck with an ocean container so by saying that chain line must guarantee that any overload must be supported by its container that eliminates the warranty that leaves all the cargo interest scot free to put on any load they want and i submit that is totally unreasonable what it does it's a it's a back door way what's truly troubling is this is a duran meant that occurred in april two thousand and five it's nearly ten years later and we're still here litigating this case the district court sometimes you try a case and then you read the decision and even when you win you look at the decision and you see problems with it and you wonder in my vulnerable on appeal the judge could have done a better job in his decision this was not one of those situations i read  it's decision i thought his analysis was detail thorough logical he walked through all of the evidence now i could certainly see where kailai where they have helen might not agree with the conclusions he reached and it's possible somebody else reading his decision might not agree with the conclusions he reached but we're not here to retry the case we're here to look at whether or not he met the standards that he was obligated to follow and whether his decision reveals how he reached that the solution now a number of things i would like to address and i'll try to be brief the judge didn't look at exhibit two eighty one and say ha ha those are the two p that were in the container that's the done it's the long strips of wood that supported the crepes that's not what he did the reason that i introduced the exhibit to eighty one was because the appellant's expert dr testified that he he he searched the crash site and could find nothing no evidence of anything that would properly disperse the weight of the heavier crate that was his statement and ultimately every calculation every analysis that he did was based on the assumption that there was nothing dispersing the weight of the larger crate and in fact that's what they say is the essence of the case and i want to get this right they say too much weight on too small a footprint of the larger crate was the essence of the case every calculation dr vecchio did was based on the assumption supposition on the speculation that the crate was not properly supported and he said i looked and i found nothing the reason i introduced that photograph was not to say here it is these are the pallets and these this is the that the crate sat on it was a show that dr vecchio statement could not be true that essentially there was a lumber yard of material that was there that could have supported the crate and exhibit two eighty one was an example of that now dr vecchio was very candid and forthcoming in his testimony about what was necessary to properly support the larger crate he said a pallet of proper size would be appropriate although he did say would have to be a very very large pallet with respect to done it and it's a fancy word that we don't use every day john it could merely be long strips of wood planks or square lumber and dr vecchio acknowledge that he said if the heavier crate sat on an appropriately sized done it or pallets then you would not have had too much weight concentrated in too small an area and what what the judge found and what we tried to prove and what i think even dr vecchio acknowledge is that yes if the  exhibit two eighty one in that photograph were of the proper size and proper if they didn't have defects in them that would have supported a larger crate to eighty one was just an example you heard the there was testimony in the transcript that there pre everywhere so it is wrong to say that the judge looked at two eighty one and said ha ha that's the dunnage those are the pallets now with regard to securing and lashing securing lashing is not an invention of the judge nor was it a fabrication of the app pelleas to make a point securing an lashing was critical to dr vecchio those arguments and i'll try to explain this is simply as possible if you look at dr becchio as analysis which is flawed because it assumes the critical fact and again i want to emphasize this it assumes a larger crate was not properly supported with no evidence he assumption every conclusion he reaches is therefore subject to challenge which is what the judge found but let's let's assume that you have a crypt and it's too heavy and it's not supported by a proper dunnage dr becky analysis showed that in a static condition the container would not necessarily foul he needed more that's why he introduced the concept of dynamic amplification of vertical acceleration into his analysis he needed that to get the container to found now how does the lashing come into play  i'm going to demonstrate this as simply as i can to try to figure out different ways to do this i think this works if you have a crate sitting on the floor of a container and you have the the container going up and down if the if the crate is slashed securely to the container it moves up and down with the container now if there is no lashing you have this now when is report he makes a big deal about the danes that he found in the plywood floor though in fact they were so important he took molds of the day which which seemed a bit surprising but that's an important part of his report and that was an important part of his testimony because what that shows is according to dr vecchio the dean's show that the crate was not properly secured latch so as the train is moving along in fact throughout the transport from china across the ocean and on the train because those credits were not secured and last it's bouncing up and down in the container that's thing namak amplification that's the extra bit he needed to get that container to fail under his analysis now this was it was from an from the from the trial judge's perspective all of the ifs and the assumptions make this course a very difficult factual determination for him to make what really would have helped would have to to have had some information about the packing the actual packing and that was not produced this there are people who actually packed this crate but they did not demonstrate that and in fact what or that what ever evidence there was no evidence of what the usual packing techniques are at the shanghai shipyard or  fact i believe in his decision he ponders this would have been useful information for me to have my client did not bear the burden of proof in every trial attorneys make a choice as to how they will present their case what experts they choose dr vecchio is an eminently qualified expert on many different subjects he's testified in major cases he had absolutely no experience with respect to the proper stowage of crates within an intermodal container now he did have experience with the failure of intermodal containers and railroad related accidents like think that was in a cell accident that he was an expert on but the critical issue that the judge needed information on because this is the warranty the warranty was that the goods would be properly stowed for transport what problem because that's really not what he was retained for that's not what he was an expert off now notwithstanding that that's deficiency in his background and experience relative to what the case requires and the appellant's burden to pro vecchio was fully familiar with that report as the judge pointed out he relied on it for numerous types of information now it does i mean that information was correct but it was information that dr  comfortable enough in relying on that report was the road map to dr vecchio or to appellants council to decide ok we need to prove there was a preach of the warranty we need to prove that the crates were not properly secured or stowed within the can the crate these are the people who did it these are the people who know let's reach out to them let's talk to them let's let's see they interviewed the relevant people let's go to those people that didn't happen they chose the wrong expert and counsel and hindsight is wonderful so it's on not being critical but they did not give the district court judge the information that the district court judge felt he needed for them to meet their burden of proof i did not bear that burden my client to not bear that burd effectively argues that the bird shifted to you because the information was more available to plano i would challenge counsel to show where in the  record they have established that moreover i think there's a suggestion in the reply brief that we could have obtained the information from john wimber of world one john wimber testify at a trial on k lines behalf to world settled with kailai at a fairly de minimus amount in return agreed that they would testify they agreed they would testify truthfully but they testified on behalf of kailai i believe the record also shows that and i hope i'm not confusing what exhibits that might not have gone into evidence but it also shows that  works for a company where they have a contractual arrangement with kailai we did not have better access to the information i hope the court never loses sight of the fact that however you spin this and however complex an arcane and bizarre maritime bills of lading are with respect to the definition of merchant and where the burden of proof lies and who warrants walk plano is a company in illinois that order some molds to help it manufacture plastic injection molded cases for crossbows and caboodle and cosmetic kits that's what they do they ordered goods to be manufactured in china plano did not pack the goods plano was not there when the goods were packed plano simply order goods now counsel if you chooses to use his time this way will argue it's a little more complicated than that in plano was a bit more involved but there is no evidence showing that plano could merely have picked up the phone call their buddies in china and said guys i need all of the evidence as to how the goods were stowed because i'm going to need that a trial there is nothing in the record to support that in fact to the contrary everything in the record particularly the fact that mr weber testified on behalf of kailai demonstrates that that evidence was more readily available to k lie but again i go back to burden of proof they had the burden of proof and they agreed that they had the burden the prove me ask you about more about this way to spur still was the court's finding that the second pallet could have dispersed the weight based on fact or was that speculation based on evidence that a second pallet exist those response was yes a very large pallet could do that so the court was not speculating as to whether the weight of the larger trade could be properly dispersed the judge was relying on the evidence that was produced the trial in fact if you go to the circular forty three d which plaintiffs excuse me which appellants introduced into evidence as as the standard for how you're required to disperse weight they attach to their expert report a a drawing a figure i think it's three point two point one and it shows a a truck with a container in the truck now you might wonder why the railroad association shows a truck with a container in the beginning of that circular they say whether the pictures of a truck or a train it applies equally go back to that figure it showing how you properly dispersed the weight in the way you properly dispersed the way it is with an appropriately sized pallet so the speculation in this case the only speculation this case is dr vecchio speculation that the crate had to have sat on it in adequately size pallet or done it every calculation he makes is based on that speculation remember that this as my friend said this took place ten years ago mr weber testified last year the email exchange between this was loaded by regular request meaning its normal way fixed with brackets had there been any done in skids underneath that larger carton human nature being what it is joanna fain would have screamed but we had eight foot dunning's we had ten foot dunnage we had everything but the main point i'm saying is on irving paper i think they had perfect access through a through amber or through a ph i through c m t all i had to do was go to joanna frank and say what was underneath that larger they didn't do it we can speculate why they didn't do it but they didn't do it we couldn't do it we sued th i four times in the southern district of new york under this multi district litigation trying to find out we served letters raga tory to try and get the story on the logic they were refused we did everything we could do plano did not issue me if i could just take a second or two to talk to you so i can clear up this la to make sure you stand your position on appeal as well as the love you strongly it seems to me urge that there is an argument was never made to the district court that the malls were not when speaking about the gouge as you had referred to in the floor say they could only have been caused by the bouncing of the crates because the crates were not last for a clue that's true but he didn't rely on those digs he didn't rely on anything about dynamic acceleration he just said the dynamic event he said first the static overload standing still was exceeded the broke the warranty and his cause was this it is clear that the root failure of container and the subsequent derailment was that the container was overloaded well in excess of both the allowable load level and the container florus ultimate strength separate appendix fifty three that was his reason he said nothing about lashing and my friend is assuming that lashing will prevent the carton from moving experiencing any dynamic loading there's no proof for that in the record and as an old railroad man i don't think it's true dynamic lashing will keep it from falling over it may have some effect but everything in that railroad car is going to be going like this at seventy miles it won't it will not last she would not affect these sweep of the bounce oh i think it probably would if there had been lashing no one found it and there were hooks you can see in the pictures they don't have a mark on him lashing according to the exhibit circuit for three days post b of steel it'll have some effect no doubt but mostly it's going to keep it from falling over but when you're inside a road car at seventy miles an hour or on top of that even a forty is i have been you know what happens to a railroad car and that cargo was subject to analysis of reliability period it was all just conclusion that he found just that kaplan was more credible than vecchio that's not to bear in any way shape or form so right away that has to be thrown out  and that really is all i have to say all right thank you very much it was to us in cases taken under advisement