is what ought to be the default rule for what is the generally referred to as a forward or safe birth clause and the standard charter party form that has frankly governed  transportation of ocean going vessels for a very very long time there are the court below concluded that based on the language referring specifically to staying afloat and safely  imposed a strict liability on the charter my client who designated that paul's borough new jersey would be the port of entry for these particular goods that is an extraordinary interpretation under the circumstances in which my client is now facing well in excess of one hundred and forty million dollars and an award based solely on an accident that was candidly unknown and u time that the designation was made and candidly at any time until the actual allusion occurred and the question then is is there a different or better or more sensible to fall rule that the court might turn to and that seems worth spending a  in just focusing on the exact language of this clause which is that the appendix to the petitioners brief and a day the vessel shelf discharge it in the safe place or war of course says nothing about any obligations of any of the parties which shall be designated and procured by the charter so that is the obligation of my client to doesn't need and and procure the space provided that the vessel can proceed there to lie at and depart therefrom always safely afloat in a lighter ridge being at the expense skin peril of the charger and it seems to me the difficulty with saying that this is an unlimited source of liability on a strict liability theory is that why would you identify lied to ridge as the specific remedy to be worried about unless what you're really concerned about is has the charter made a centrally a safe choice as far as everyone can tell and then when the captain gets there if for whatever reason the captain and his or her judgment decides not a safe choice and decides to go off into another port or to offload some portion at the expense and the risk all of that is that imposed upon the charter  to write around whatever the contract interpretation has to be but the court still has the fundamental obligation to determine what should be the default rule and while it is true that there was there's certainly been a period of time when the  adopted a broader construction of this clause that is equally true that for almost thirty years the th circuit has adopted precisely the opposite construction of this clause and gilmore in black the the difficulty i think with looking at other forms and other clauses in other contracts between other parties is there's generally there's no evidence that ties any knowledge of any of that to the decision that was made between the store tanker and my client when they entered into the into the charter party arrangement in this particular case it's true that there were other options available but the question is what did the parties intend when they chose this language under these circumstances and against the because i do think the text itself tells you that the basic problem this is designed to deal with is what do you do when you show up when you pick a place that safe it turns out it's not safe and then the and the captain has to act in response to that what's neither the charter nor the owner of the ship nor anybody else is responsible for those kinds of injuries and so that suggests to you that the for what we're looking at unknown and unknowable hazards that ba that's not what the parties expected would be imposed on the charter by simply does igniting at the time a safe port nd mr phillips is even if we're looking just to this contract these parties you said well look there is the nd circuit but we have the th circuit on our side but this contract actually seems pretty well oriented to the nd circuit so there is a arbitration provision in the contract which says that any and all differences in disputes of whatever nature shall be put to arbitration in the city of new york or in the city of london and then there is another provision in the contract jurisdiction clause which says that disputes concerning non delivery or damage to cargo may be submitted for adjudication to the united states district court for the southern district of new york so every time that this contract says something about where it expects disputes to go it points to new york well but those are but those are our choice of form clauses or not choice of law courses they don't say specifically that we  n and this arbitration clause says here in new york a year in london both of which have a warranty interpretation of this safe birth clueless so even if we're just looking to this particular contract between these two parties i guess i'm thinking these two parties thought that this was going to be adjudicated in new york but under new york rules but even under even under that interpretation which i don't think is a fair way to interpret this is because it seems to me that when you're engaged in a very broad contract entry position to say that this was that this was something that was entertained because they knew how new york law worked in certain ways and i think is a fair way to interpret the contract but i but even aside from that if you actually look at the arbitration decisions that are for inside and examine them they say things like of course the charter is not the ensure against all risk that takes place so there's at least some reason to doubt that the rule would ever be interpreted as broadly as it is in this context and some and so and that there are others in which the court has said that trick liability doesn't extend to the ends of the earth so that there are it's far from clear what that would mean but what we do know is that the provision specifically says u s law and u s law i obviously at this stage ought to be with this court decides it ought to be and again remember this is not an agreement between my friends over here and my client there's an agreement between a rd party and my client and there is no evidence as to what either or other of them had in mind with respect to this particular issue so i think what you should look at is the language in the text and what does that lead you to what's the conclusion to take from that are indeed warranty is i mean what would be the difference if i said to you i'm going to sell you a working car for a one thousand dollars and then i give you the car and it breaks down two minutes later and it would you would you think that that's anything other than a warranty no i would think that that is and in fact the warranty but i think even though like i did i say i didn't know that this car was ready to break down it's unknown and unknowable i had no idea well my guess is st of all i mean i had to fight your hypothetical but my guess is that's a that's something that is at least potentially knowable although it could have a vision a circumstance where it would be here you're talking about something that is absolutely unknown and u these particular circumstances and the term safe doesn't mean as a possible risk are as i have to mean that they can just mean safe for the ordinary use that you're going to put it to as the as the ocean victory decision in the u k says which i think is the best way to think about this was it safe for that vessel on that day at that place given what we knew about the characteristics of the port what if we think that can be read your way but it can also be read the other way what should we do that then you should go to the other criteria which is the the context which i've already identified in the one billion dollars of liability insurance that the other side has i think the case law tends to support us more i think atkins can be read as having rejected exactly the kind of warranty because there the situation was that one of the parties said to the ship's captain it's a safe port in the court rejected the idea that that was a warranty on its face that you could get in under any circumstances and regardless  knowledge then i think you look at the other two criteria that the court uses in deciding the right way to interpret admiralty current contracts in admiralty one is is it is the you know does this promote maritime commerce and the answer that sees me clearly not we know from the amicus briefs that to operate on the th circuit those merchants don't routinely get can't get insurance and don't can't get insurance for a lot of what we're talking about here and it would completely disrupt all of the commerce that goes into the gulf under these circumstances well if we get to cuss and use it which is what you seem to be talking about can that be decided on the record that we have is not a factual question and was that fact decided by the district court no well it wasn't decided by the district court because the court of appeals in its prior opinion it basically said this is a strict liability to the limits of the earth holding and therefore there was no opportunity for the district court to entertain that on the other hand what we what we do know in terms of transactional costs and insurance i think is probably noble from common sense i don't know that it's necessarily a tribal fact i mean this court has in the past examine whether or not a particular rule is going to it adversely affect maritime commerce and it seems to me that any rule that exposes a defendant to limitless liability interferes with maritime commerce and efficient maritime commerce along those lines mr phillips i'm trying i'm trying to figure out the the difference between your rule and and your colleagues suggested rule as i understand it you would like us to essentially impose a negligent standard due diligence could we couldn't have known that the anchor was there in the river when we hit it and therefore we shouldn't be liable the other side says no there's a warranty of safe birth but at least as it's been  many courts including english court you you you alluded to earlier there's an exception for abnormal circumstances under under the particular circumstances i think you alluded to it as well in these circumstances at this time in this place seems to me that those two rules strict liability minus abnormal circumstances and negligence are awfully close at the end of the day and if that if it is that true st of all would you agree with that and isn't your real problem at least the argument from the other side that you didn't make in that normal circumstances argument below and so that you are stuck with more of a strict liability result in this case but might not have been on a different record in different circumstances the answer to your question justice course which is that we did make an abnormal occurrence argument and if you look at the reply brief in our footnote we devoted you know the entire yeah footnote to the six times that we referred to abnormal circumstance and again put it in the context of the litigation which is the district court upheld that we were not liable under these circumstances and the court of appeals says well we're just going to decide some legal issues here and  you lose on that legal issue so the opportunity to try to parse out the nuance of what you've just described wasn't available to us but we certainly posed at the ok's every stage that argument so if you want to remain and yeah out for that issue that w difference between those two legal rules if any the due diligence standard frankly doesn't go to the question to my mind to the question of this particular obstruction the due diligence goes to the question of whether you whether you did due diligence in selecting the port or the birth in the st instance and that's usually regulated on the basis of the history of the port and again if you look at the original district court opinion that talks about the one hundred and forty seven ships just like this one that passed through exactly that stretch there's no question this was a safe port when selected under those circumstances mr feilding we did our due diligence there you've been using terms like strict liability and due diligence and those those sound in tort to me and yet we're dealing with a contract we contract doesn't say anything like that any familiar tort terms it just says you're going to provide a safe place and you either did or you didn't but that's a matter of contract i don't know it seems to be introducing you seem to be introducing these tort concepts into a contract case not sure i'm the one who's introduce them into the into the contract case of the i think the lower courts frankly are the ones who decided that the better way to conceptualize the problem is the is in these terms i've you know from my perspective i'm perfectly comfortable if the question is is this a safe port there was no breach of the contract is this of course was this a court ships have gone in and out of there for years and years and years and what we faced was an unknown and  that caused this particular illusion so the question that just as court to go back to justice course which is question what do you do and that circumstances you is you say who should be liable on will but it's not it's not a safe port what made it unsafe as you say was something that was unknown and unknowable but it's still a question of contract law right but the question is did the parties in vision for something that was unknown and unknowable that one of the parties with that that made it unsafe under those circumstances or is it the more logical conclusion to draw particularly in the context of a provision that says that there is no responsibility and does it in terms of damages for losses that are that are caused by perils of choice not because of it's own right and so if we're talking in terms of hunt track why does that make any sense to view it in any other way than to say the charter picks the charter has the expense risk and peril of leverage and might or rich in my mind can include all the charges related to the transfer to a safe berth there was no ability to do that it was destroyed there so i'm i'm just not quite sure your you were answering the chief's question well i says if you are talking about the party six picked patients why would the vessel think it should be responsible for losses  asian by someone else's choice b because the all of the choice imposed as a an obligation on my client was to identify someplace that is safe in the sense that there are no obvious risks that it is not obviously i don't something that words anywhere in the cold that only make sense in the context of what is the remedy by choosing poorly it's not as huge as you would get in dealing with the general exceptions clause which says it responsible for any loss or damage resulting from the perils of the sea if you were going to say that you are responsible for everything you would use precisely that same language and if you depart from there then you are responsible for any loss or damages arising from the choice made by the by the charter or the fact that they don't use that language to suggest that this is a much narrower obligation and the reason why you would interpret it in light of that is again goes back to the core notions of maritime commerce that anytime you begin to impose virtually limitless liability on a party who has no ability to make a choice and you do so in a way that we know from army because will dash the expectations of a very large part of the economy that operates in the gulf of mexico this court ought to think on and hard about whether that's the more sensible rule and adopt the more the more restrained rule and realize that the end of the day the reason why the ship owner i would expect this liability to be on it is twofold one he took out insurance has a one billion dollars of insurance against the ultimate  and two it almost certainly had insurance for its whole and that's that is exactly the position that gilmore in black explained many many years ago is to the water is to the reason why it's not reasonable to expect that the shipowner thinks he's going to pass on that circumstance and it is certainly not reasonable to think that the charter under these circumstances would assume that kind of liability back to the text does a safe place for war for which shall be designated and prepared by the charter so the words designated imprint procured are not just the place but the fact that it's safe as well so if it turns out not to be safe and just as a matter of logic it hasn't designated or procured a safe place or wharf well the question it seems to me the question is is cavanagh really is the safe i mean that you that you will assure that regardless of what happens if it if it gets hit by a meteor if it gets if somebody a vandal goes on the on the ship while it's in a berth and blows it up but that's all on the charter that the charter assume all of the other interpretation which is much more sensible in this in terms of maritime commerce and the rest of the provisions and the other protections that the other parties have against this particular liability is is to say it's in the way the u k supreme court said it's safe for this ship under these circumstances on that particular day as a prediction made at the time that the prediction is made and there's no question we satisfied that standard under these circumstances we knew and the records very clear about this in three hundred and forty two thousand three hundred and forty three of the appendix to the petition hundreds of ships of the same size and dimensions of this one had passed right there right through there  completely save you to fill it with you're saying is sensible seems to be doing a lot of the work there in contrast to the language that justice cavanagh read and again this goes back to the question of what you're supposed to do in tort and what you're supposed to do and contract i always thought that the contract rule is that you view a sensible whatever the parties chose that there's not you know courts are not here to decide what sensible or what sufficient if the parties chose something that's by definition sensible  efficient i don't i mean i vaguely in the abstract i don't i don't disagree with the proposition the question is was this language meant to carry as much water as as the as the other side would ask it to carry and again i would go back to the other language the exceptions clause which talks about unless otherwise in this charter expressly exempted they should not be responsible for any loss arising out of the peril of the sea it doesn't seem to me under those circumstances that this that the provision and on the safe birth in visions that we are taking on the responsibility for everything that can happen that would be a peril of the sea or that would be an abnormal occurrence i would say that the court ought to draw that line and whether it draws that line as a matter of due diligence and toward concepts or whether it draws a line is the better way to read this particular contract of hurdle comfortable with that and even if the court thinks that there ought to be a remained to determine whether this was  idea of a ten ton anchor that leaps flukes up catches my eye my mind the ship scope loops down again that is not only i'm not a normal occurrence and this is a bad pun but that is maybe the flu berth on the delaware river when the parties entered their agreement in two thousand and four they had the choice of two types of safe birth causes that predominate within the industry as this court's already recognized this morning some contracts include a traditional safe which gives the charter the right to designate the port but requires that the charter choose a port that is safe in stark contrast other contrast on their contracts include a more limited clause which expressly provides that the charter will not be liable so long as it to post the same sort of question i posed to mr philips which is i'm not sure what the difference or delta is between the two proposed tests at the end of the day yes this is a contract case but mr philips is or you for something like could do diligence  i think of it as really and make widgets type standard you've argued for something more like strict liability right that it's warranty absolute but you've also recognized at least in passing that there's an exception to that warranty  for normal circumstances whatever that is nobody knows what that is at the end of the day don't do to wind up and pretty much the same place and if they do my question  given the difficulty of knowing what an abnormal circumstances and how a textual that would be in this contract which speaks only of a guarantee of safe births why shouldn't we adopt the petitioners position as more which i disagree that they wind up in the same place i also disagree that petitioners have preserved an abnormal occurrence argument and i think it's very important here your honor use the phrase abnormal characteristic it's actually an abnormal occurrence under that why it matters because the way that  normal occurrence is defined in the english cases which have done the bulk of the work in this area is it is something from outside the port it is not a prevailing characteristic of the fort it's something from outside the port that comes in and causes an abnormal event and it's not he's a well known english judge and scholar on this topic so that might be an example there's an english case called the v f and the one thousand nine hundred and eighty s where when the party selected the port everything was well and good everything was fine turns out the iran iraq war breaks out and do that surely those types of storms have not been unknown to that port in the past that are rare but they happen so whether or not the abnormal occurrence situation applies here again given the difficulty of knowing what  and the fact we might have to just more or less make that up as we go why isn't mr phillips this test more reasonable so i think the fact you're i agree that a large weather event could be an abnormal occurrence i don't think that actually changes that the normal occurrence doctrine doesn't apply here now as i mentioned earlier petitioners didn't preserve this argument below when they used abnormal occurrence they were saying something very different in the context but nonetheless there is evidence in the record that debris of this sort on the floor of the delaware river is not anywhere near abnormal given the fact that it's an industrial river i know you're likely to focus on the facts of the case just as much as mr phillips and for that i admired but if you could just back up one level of generality for ok the two legal rules you're the judge she have to pick between these two legal route again why not mr phillips on at least mr ability grounds so i mean i'm happy to get to administer ability grounds but i think the number one reason would be that's not what the text of the contract says that next contract also doesn't have abnormal occurrence in it right so you're you're arguing from a textual position yourself i think and if if if that's where we're at the last shot position so we're not saying that the abnormal occurrence a possibility does not exist but i don't think it's a textual if the court will just bear with me i think that is one example of a set of doctrines that have grown up around this clause that show that this clause has a long lineage but also are just sort of applications of causation principles if there is an abnormal occurrence petitioner's failure to designate is steve birth is not the cause of the vessel's injury now that is also true of the bad navigation and seamanship doctrine it's also true of the waiver type named court exception doctrine that came up in the district court's decision and putting all that to one side to get back to justice course which is and mr billett question i do think that this is quite a minister bill and the way that we know that is that this has been the rule in the vast majority of jurisdictions for dating back to england eight hundred and sixty one arjun versus graham the st case anyone can find on a safe birth clause actually involves a situation in which the court says it is possible that the chargers were perfectly innocent as to this danger and they are still liable so we know that it's ministry role because parties have continued to choose this contract for one hundred and fifty years since that decision now going to another point on administer ability my friend pointed out that the law has changed in the th circuit for the last thirty years that too we think is insufficient to change the weight of authority here and that's because again we have one th circuit decision against honor which interpretation doesn't think is the correct one so it has not taken a position in this case at the search stage it simply asked the court to grant and didn't say which side i think it does however take a position sort of without taking a position by rational to construe a safer clause to impose an absolute warranty it also would be entirely rational can to construe a say st clause to impose only a due diligence obligation so it's a doesn't know which is the right interpretation of this clause which it is offering to the public how can how can you say that it's clear so i think it's clear for the same reason that judge friendly said it was clear in paragon oil as he said a simple set of propositions was sufficient to resolve the case a safe birth was warranted it was not provided therefore the warrant for is liable i think the language actually is quite clear but even if you disagreed with me on that i think you would look to other contracts i think it's simply important to note that gilmore and black are writing in one thousand nine hundred and seventy five but what they say is that at that time there were many authorities that construe this as a warranty so they're not debating what the state of the law was they're simply saying on policy grounds that they disagree with that and they like my friend say that in fact you should require very clear language to have a safe birth class that actually functions as a warranty but there is no basis for that in contract law as i believe justice kagan was pointing out earlier there's no basis for that they  what we look at or do we look at the actual event which is you know the anchor leaps up from the bottom you know damages the hole then returns to the bottom of the that disk that's a pretty abnormal occurren there are a lot of anchors so it's possible your honor that some court might with actual evidence about that question decide that that is an abnormal occurrence i don't think that's correct i think you would look at the presence of large debris on the floor of the river and one question you would have to ask is even without the leaping up so to speak how much of that debris sits that high above the river and all of this or the river bad all of this goes to the fact that as i was saying earlier there's no evidence on this question because petitioners did not raise it this case has gone through two causation principles can you tell us how you would phrase the causation principle that applies to these circumstances to the abnormal occurrence so just a lot and i know all the long line of causation damage caused by the condition of the port for example yes i mean i think roughly speaking that's probably correct it's what petitioners have warranted is a safe port they actually don't disagree at least in their brief with the definition of safe it's on page nineteen of their brief and that means that when they fail to provide a safe port if the characteristics of that port have caused the damage then they are liable and if it's whether or media or obviously that's not the condition of the port i guess people could argue about  things on the floor of the delaware river though well i think people would argue about whether just in terms of how frequent that type of a storm is and things of that nature but putting that to one side i don't think that you would again i think based on limited evidence we have here and common sense i don't think that the presence of debris on an industrial river would be in the same vein as a media your or the outbreak of a war or something of that nature and that is where we see or a sort of once in a generation storm and that and you think we can sort of take judicial notice of the fact that an anchor popping up like this you know point that is very heavily used is more foreseeable than a big storm so your honor my suggestion if i were to be sort of bold  enough to make one would be that the court not address this particular question at all because petitioners have been preserved and so i think it would be perfectly appropriate for the court to say in a different case where petitioners had not gone through two trials and failed to ever raise this question it might be appropriate for a united states court to consider the scope of the abnormal occurrence doctrine but that that's not the scale you referred to the fact that it's the london courts that have done the work on this have has  circuit or any of the new york arbitrators do they recognize this doctrine or not so justice kagan to my knowledge there are statements including in the rd circuit opinion here that sort of acknowledge that the safety definition includes a carve out for abnormal weather or other occurrences is usually how it's freezed in the american pieces i'm not aware of an american case that actually applies it or in american arbitration for that matter that actually applies at the arbitration point if i might it just loops back to something that we were briefly discussing earlier mr phelps relies on the th circuits decision in our genius sort of a sea change so to speak the i think that that's incorrect not only because we think it's sort of too little too late and it's partly reason also are not aware of and they have not put forth a single arbitration clause that would send arbitration to the th circuit so if you look at the new york arbitration some of them in fact involve accidents that occurred in new orleans and they because of the standard forms that justice kagan was discussing alito i certainly take the point that arbitrator's may not be bound in the same way that lower courts would be i think where you have a situation although actually in the nd circuit there is a case overturning an arbitrator's decision for failing to follow nd circuit law and following other courts i take the point that this court might not agree with that decision but i think when you have a case like this one where you have sixty seven arbitrations on one side of the ledger and zero on the other you don't actually need to decide these sort of more difficult cases about what would happen if it were closer or if you really had a question as to what law the arbitrator's were applying it's quite clear in these again reported well reasoned quite predictable after you know the st twenty or so arbitration decisions i don't know i'd be very phrase that i made is that the arbitration decisions are really confirmation of the industry's understanding because these are expert arbitrators and again going back to where i started this morning the industry had and has had i believe sin that a ruling in your favor will destroy the industry could you address that issue if i might short so i don't think that's correct i don't think they have any evidence for that i think on the insurance point two points are really important here one is that the reason why a vessel owners have that counsel thank you mr chief justice and may please the court i thought i would come at this from the perspective that justice alito asked about what if we regard the text as an aqua voice it says safe in that could mean different things in different contexts and i'd asked the court to just look at what the position of the parties was at the time they entered into this agreement so at the time that they did this it wasn't just you had to interpret safe pork there were two different kinds of forms and they were basically evenly divided this is all done by an industry that they just choose forms off the shelf and there are a bunch that say safe port and there are a bunch that say the charter will exercise due diligence in selecting a say for and so that's a pretty meaningful choice then you say ok with respect to the ones that say safe port what was the understanding of the industry at the time now every one of those forms said that any dispute will be resolved by arbitration in either new york or london there were none for houston so every single one of them said will go to new york or london and you say ok how are these provisions interpreted in london and new york well they were uniformly interpreted the safe port provisions as importing a warranty so there were sixty seven as my friend mentioned from expert arbitrators in new york that would include a four on this particular form not just in general but this specific form every decision of the nd circuit justice provision of the charter party in particular that deals with last cargo so when the oil spilled out of the oil tanker into the delaware river that would be a last cargo claim and that was you know in going to be done in the southern district of new york and then all of the london decisions all of the u k courts and unlike u s arbitrations you u k arbitrations do get reviewed by the courts and there was absolute uniform authority so if you just ask i'm just not sure exactly how i i would look at these words i do think it's quite clear how the industry would look at these words then i want to turn if i could to justice course which is a question about ok you know what really is the difference here i do think the critical textual difference is between whether the injury is caused by the port or by some other thing just scouting or this is the question of causation and so if it is a characteristic of the port and i would also encourage the court to look at the phrase always safely afloat there are two parts to this provision and what they are they cite the authorities there quite right that says always safely if float means you're not going to hit something on the bottom and that's the kind of obstruction that you have with an anchor whether it flips up or down it is on the bottom and that is a very common thing it is the kind of thing that you worry about in chartering a ship now some then you ask ok was this a characteristic of the port or something else that caused the injury well what other things might happen you could have negligence of the ship's master that could be a superseding cause the ship's master should have been aware of an obstruction on the floor which should have been aware of different things that were in the way other ships in the like or you can have just a superseding cause that is not negligence it is not the characteristic of the port but it is truly some abnormal occurrence now this is a relatively undeveloped area of the law it is though intended to be very much the exception not the rule and so it's not just a storm but it is a one hundred and fifty year storm combined with long waves and in that situation the courts have said well maybe that isn't a condition of the port but we are unaware of any authority ever indicating that something that is on the floor of the port is not a characteristic of the four port you're worried about running aground you naturally are accounting for the things that are on the bottom who's responsible for negligence of the master is the master an employee of the ship's owner you so so if the master is negligent then the charter is not respond yes then so what we have is a situation where the master is negligent and the charter is not response where the master isn't negligent then suddenly the charter is responsible it's not suddenly that's what they've bargained for it's a condition of the poor why would somebody do it that way well no that's the here's here's the little bit of the bait and switch if i can can say that as my friend is very concerned that someone would be held liable without fault and he's very concerned that one hundred and forty million dollars might turn on this he's not actually concerned about that he just wants it to be us right he's not saying that there should be strict liability saying it should be we're strictly  well the still go back to the original thing it's a master who's hired by the owner and he says i'm going to take it into port x and he should know that port x is filled with poison ivy which drives the crew wild or you know or some odd thing about it that we supposed to know that yet and then when he does that incorrectly yes mistakenly yes at have a ship i want to go to paul's bro and i promise it'll be safe and we said ok let's go but that is not at all irrational or strange or anything and if he instead wanted to say look i want to go to paulsboro but all i'm promising is that i've exercised due diligence i've done my best i'm not taking responsibility so we have to realize when you have a situation of unknown and not reasonably unknowable damages someone is going to be strictly liable it is inevitable we're just trying to figure out who it is that because because we just think it doesn't make sense it just didn't it doesn't make sense in their view because because it would just make it would it's not fair to the charter or you should just put it because it doesn't go a contract like the crane operator in the port in or doa gets involved in the litigation but it were not for that were junior would not even have existed and the reason or dunja has not been a problem the reason it is not been regarded as a lot of authority on either side is that in the wake of our genius all these contracts still call for arbitration and litigation in new york and london that's why there are no i'll tell you what i knew more in black in seventy five and i should have asked the of treatise that says we are incredibly smart men and we could do it better yes don't you think go more in black is the nd kind of treatise i do and i they they in fact say it themselves  and i'm sure they appreciated all the citations of the court but if you were to actually cite them in your opinion you would be citing black says the rule should be x my point i was trying to start from justice alito is question is what actually if you thought the text was an echo poise what would you look at how the industry actually treats things you would not cite gilmore in black against me on that position on that question well if we thought that that the text was perfectly ambiguous couldn't we say we are incredibly smart people and from this court's decisions saying that you in these kinds of cases look to two things and that is the industry practice and how the united kingdom has interpreted time contracts and so while you could depart from that understanding it would not be in a contract cas parties actually expect because it is the case that they can get insurance we have cited the insurance policies in our brief it would be very strange if the insurance industry said we recognize to the charterers you're undertaking this liability but we just don't we just don't like to give you insurance we'll give the shipowner the exact same insurance for the same liability but for the chargers we just don't like the chargers that's not true it doesn't make any sense and it would be contrary to the fact that this has been the industr understanding for a long time i did want to explain the lighter ridge provision if i could which is on a day i think what happened here is that my friend inadvertently just skip some of the language in the contract and it says that any day the vessel shall load and discharge of any safe place or wharf and then here's the part that gets skipped or alongside vessels or lighters reachable on her arrival which shall be designated and procured by the charter provided the vessel can proceed there to designate laborers they're allowed to say don't go actually to the port unload onto a ship on the question of where we get our damages there is a damages provision in the contract and it is at twenty eight it's very simple paragraph twenty three damages for breach of this charter shall include all provable damages and all costs of sued and attorney's fees incurred in any action here under they promise to say fort it was not safe it was a bad accident but if you were to ask where is the textual basis for his position where is there a reference in the safe where clause to due diligence where is there a reference to the idea that there will be no responsibility if the port turns out not to be safe and only if they are negligent it doesn't exist and just the last point just as well such on the administer billet remember there is always going to be a question of causation and they agree that they're liable if they didn't exercise due diligence so it's not that their rule just avoids those questions it just points not a shred of evidence in this case that any form other than the one that was actually implemented in this case was ever considered by the parties and deed one of the parties has never been in this litigation so the notion that there should construe what the meaning to typically in a contract case there's some evidence of between the contracting parties that tells you who did what to whom and who made the selections here the all i'm saying is the fact that there are other alternatives does not tell you anything about the contract that the parties understood when they entered and to this agreement with respect to abnormal occurrence again that is clearly an eight textual analysis again by my friends over here there is no way you can get from the simple language of just safe birth and say but would that excludes abnormal look normal occurrence you only do that because at the end of the day that is the most sensible way to read safe birth which is to say it doesn't it doesn't make you the ensure against all things that can happen and i submit to you that if you're not the insurer against all bad things that happen one of the bad things that you're not insuring against is the anchor in this particular case it is not a characteristic of the support this court specifically defined objects in the sea submerged objects in the sea that are un unknowable as perils of the sea not as characteristics of the port the courts already written down this road it ought to follow that same position the booth and then finally with respect to gilmore and black what they say is the text is being way over read by the prior decisions all of those decisions ignore this court statement in atkins that this cannot fairly be immediately preassumed after operate  as a warranty and finally what they said as a matter of both policy and maritime commerce concerns is that the charter is in the least effective position to prevent the problem the injuries that will arise under these circumstances and it makes no sense to put it on the backs of the party least capable of dealing with the problem because it rates insurance risks imposes unlimited potential liability which this court has consistently recognized i'm not saying that this all should fall on on mr goldstein's client mr goldstein if determined today if this poor were to decide today that there is no liability for sicko he can go back to egypt to the federal government and seek complete exonerat because the rd party here the person who left the anchor in that and that waterway didn't identify it didn't tell anybody about it that's the person who should be liable we can't find that person there are two ways to deal with it there's exoneration for him completely because of that rd party and there's the oil spill fund which would take care of it my clients already spent more than one hundred million dollars on that fund it should not be it is not equitable result to impose another one hundred and forty million dollars