sophisticated parties who choose to alec take a risk between them in exchange for financial consideration have an agreement that means something or whether it's merely words on a page to be reinterpreted afterwards in light of the facts to come to bear this case hinges on a contract that was entering into by these parties knowingly with advice involving sophisticated companies there is not a scintilla of evidence in the record that the parties did not understand what they were doing when they entered into this contract and ask a question  question and would it be your position that at worst for you they should come out where they would have been had everything gone smoothly i e you should get some sort of offset or some sort of consideration for the fact that you weren't paid your in fact they should be paid for the use of it is that man you're simply trying to put j v where they would have been had everything gunsmith would pay what would be their judgement against you i know you don't think it should be anything i get all that ok but i'm just saying what would it be what's the matter i think i understand and i'm hesitant to bind in any way but i'm thinkin something they all to muttley paid us and i have to put in the fact that in the judge never got to this incidently i counterclaim for the use of the vest for the barge coming back that was not in that decision but basically they agreed that they would pay us five million dollars round trip to take this barge with to dispatch to manila or to them to malaysia they paid us two and a half million in again i'm using real numbers when we when the vessel took off so was for putting aside attorney's fees it was for four point five or thereabouts ok so you're saying it should have been worst case for you two million because they should've credited the two and a half million it would have had to pay anyway if everything had gone swimmingly against this for now but but i want to be a goner you want to add to that i want to be fair with the court that i'm not sure that my math is correct because i don't see how the actual numerical numbers came to be in the reason i say that there is somewhere lingering in the back of my mind is that j was actually charged more than four million dollars for the room for the final part of the trip and so at the last thing i want to do is mr you might already have correct but but in reading the judgment it does not come to  our findings on them if we otherwise disagree with you would agree with them at a minimum i would like to get my cross class for the use of my vessel that they agreed to under the contract and how is that different from this offset that we've just been whole well i think it would come into it in fact when we did the bareboat charter we said that they would be entitled to some offset from the monies that they had previously paid us but it went beyond that amount by some two hundred fifty thousand but your honor i know you don't want to get there but why don't mind get in there because it but other than the obvious that i don't think we need to and that's what's confusing about a judgment like this this is not some contract that that you had over the heating is the judge at one point in his in his asking he says you know on the civil laws this an adhesion contract he talks about at one point who drafts the guy and you'll see in his reasons for judgement that in determining the ambiguities he says you know it has to be determined against as i'm asked because they drafted the contract when in fact three this result oriented decision ignores all common instances of contract interpretation the first step which was never done in this is look at the four corners of the contract what does it say and it says in two instances at a minimum that we will use due dispatch but there is no guarantee of timely of when that is are the time that it will arrive or how long the voyage will take or anything else it says in two instances under no circumstances will there be extra expenses to be paid if something goes wrong it gives not to not provisions where each side basically takes care of their own and then there's an integration clause that the court just totally ignored where both parties said this is the document that controls the relationship well they had recourse in advance they accepted the vassal in the contract they say when they accept that it is a sea worthy vessel they had an opportunity to do whatever inspections they and do whatever you want with the inspection was based upon representations from from you know the inspection was not limited to representation by us they had the right they had and their ultimate customer had noble denton which is a survey or go out there and do an inspection they had the right to go and look at the vessel nobody said you have to depend on our representations and incidentally that i know there's a parade of horribles that they have found in that you know where they claim that their vessel wasn't what they wanted to be but their own expert doesn't have any real problem with the vessel or how we handled it his only problem was his calculation of fuel consumption a very as opposed to how us at the end of the day when you read his his  testimony is costly add on for being repaired daily until they finally say we've got to go get another pass well to give the other side their do they did an excellent job of making it appear that way that's not our problem in the end of the day because they agreed to use this vessel you understand that they had a right this gets the very question you started with suppose they had hired another vessel suppose they had said you know what it's important to watch that we have it there for a specific time because as the testimony came out they knew that they had to have it there to specific time or they faced liquidated damages substantial liquidated damages not a no way at that they put in a similar clause to us in why and this is tell they didn't want us to give them a date certain because they knew it would cost them more money like ashley obligated  it was contractually obligated to get it there with to dispatch exactly that question what is the i think it's first a legal quest in the legal question is what is due dispatch and it is reasonable effort now the judge however started backwards on it and he started to look at all of these things of what went wrong with the vassal and how could you do it and do dispatch that's that's going at it wrongly due dispatch means we use under the law we use reasonable effort time anything like that so you can't hold us to a certain time and say that's to disappear it is what is reason in the case five believes is fairly apparent what it says is we have to use reasonable methods if the vessel breaks down we need to go out there and fix it and move on but unless i've guaranteed you that i'm going to be there on august the first that's all  and why even say that if you're if it's just relying on their inspection why not say and says where is you guys take it as it is and do your own inspection we're making no warranty what value is your warranty i warranty is a we're going to give it to you as we believe it to be you see where the it why does that have any value at all if it can't enforce that against you because once they take possession of the barge which is the first time it matters whether it's and that's what i'm worried to to you that it's great as long as i'm holding it where you can make no better use of your own if i'm going to take that pad from you while you haven't you have on there who it should be addressing this it's got some value i give you ten dollars for it i get it we've had an exchange of goods in services that's what it's about you and i freely negotiating for the value of your pin i mean look at it and say she's wrong a one worth it but after the fact they can't say oh i should have looked at this beforehand and done on purpose to this version has to go somewhere ok and so if you're saying it well it can go somewhere but man and as soon as you start to try to take it somewhere our promise isn't worth anything oh i don't understand that that you don't have a promise there i say i will bring it with to dispatch and in do dispatch it means i will endeavor to make sure that it gets there i will make the corrections that are necessary to get there and i will  then where did this great game not literally but figuratively this is rocking along in going from four to forty cost of repairs at least there's that's what the judge found and the facts and so when is it that they can finally say you know this is a lemon and in any duty is fact we're done how long do they have to keep let new show up and mess around and talk to the engine before they finally have to say you no two responses to the first they need to do that before they enter into this contract in the much the same way that they agreed with their ultimate yes with before they when they have been in into their contract with their customer they guarantee that they would have it there they say in their testimony in the record we knew that if we told the s m s that it had to be there by a certain time it would cost us more money so at that point they made the decision to take the risk on themselves that we would get it they're using to dispense now to get to the second part the more factual it has these these issues and again i recommend that you read their own expert because the issues are not out of the realm for a vessel at sea going halfway around the world admittedly they saw some things they had some issues but none of those kept the voyage from continuing to proceed the only reason it turned around is because the customer at the end of the day said we're concerned about your vessel we want you to turn around we said no we can make the journey they chose to substitute their own judgment not by some expert who comes in after the fact but by somebody who admittedly said i've never done this before in the back of the no freight of five million dollars to get it from amelia louisiana to the malaysian drill site at the connection with that with the required of the initial nonrefundable payment of half of that two point five million so we paid the two p barge back to susan four point eight million and some change and that's what the judge awarded you so it seems to me you came out ahead two and a half million on what you would have had had you everything on smoothly and swimmingly until your are we know we got to two point five million back now what i'm saying is you you were in your head when you and your client entered into this country they're thinking we're going to pay five million dollars and we're going to get from point a to point then things broke down and they had to go get this replacement tuck and they had to take four point eight million and the judge gives him that back let's say that judgment gets paid now instead of having and they got it from point a to point b instead of being out a total of five million they're out a total of two point five million because that's what they pay the nonrefundable fee they got the four point eight was a net net and they never pay the other two point five how is that also had to pay th favor you have a right to be made whole but you have a right to profit from it and it seems to me that you profit because the judge has given you back the extra money you paid and you never paid the full amount of the contract you thought you were going to have to target was available was a bigger target more expenses and we had to pay for that by a four point seven your damages are your contract damages for the difference between what she would have paid had they satisfy the contract and what you actually and you and you haven't shown me other rockets and so what i'm saying is why should the judge at least have to explain why that two point five million isn't credited against the four pointing you actually painted says the higher up you actually paid seven point three million with them to prepare him for the voyage given the void where in the words i think he didn't do it but what i'm trying to get at is typically in a contract situation alter ego is very difficult to get because of the fact that a parent controls a subsidiary isn't good enough because in contract contracting with the subsidiary you knew you were contracting with s m s and not cashman if you wanted cashman to guarantee it they usually asked them to sign off on right and so all of the decisions made for the operation of this tug floating selecting the top of the prices for the contract who was going to be on it where it would go the operational management was all made by cash not semes is for the proposition that tug had problems before it was ever supplied in january of two thousand and twelve the then captain of the tug was complaining about fuel consumption not being able to figure out fuel to pasadena and there's all sorts of problems were problems and when the vessel starts on its voice you see all the smoke black smoke coming out and then let it go the second day end of the trip got to go slow speed the so day of the trip the top of the chief engineer shuts the whole thing down bridge to starboard engine religion thank you let me try and address a couple of things that came up first was the issue of fraud this is a direct quote from the transcript of the court and counsel for j i know that my question was about representations or even message missed representations but you don't accuse them of fraud right answer no i did not there is no allegation of fraud   council brought up was this issue of fuel capacity and these issues of the you heard it again this is how the trial transcript reads constant problems with the th is a maritime venture that's going around the world they selected and they had every right to enter into a contract with whomever they chose to do this they negotiated the contract recap just finding that by the time the change out was made in the time the team is clear that the cargo was not going to get there with the dispatch well in i will agree with you that first you have to read that contract and that's for y'all to read de novo whether or not to even get there but let's assume we get there and there is a huge issue of do dispatch and it's a reasonable inquiry what the court did wasn't look at the contract first makes no warranty or representation as to a specific arrival date at the port in malaysia he dispatched doesn't mean a year or two years from now it means reasonable efforts that's reasona relatively simple repair but it was moving for in fact when they turn it around in a believe you asked question how far behind was it it was fourteen not nine twenty two was that he said yes it was moving slow we were prepared to go forward and get more fuel to to to do some minor repairs like s three and that when you got the ridge there is nothing in the record to reflect either way and in fact their expert his the only ultimate opinion he gets about whether or not this vessel could have made it is it would have had to stop more times therefore there would have been some more time going on he believed that the fuel consumption was such that you would have had to take on more fuel but he made no estimate as to there is no extra expense because you caught it early on this is in effect a seven and a half million dollar trip that they only want to pay but they only want to pay two and a half million dollars for not even the five million dollars that they bargained for if they had wanted a date certain they could have hired a vessel that would have guaranteed a date certain in had those penalties and instead what they want to do is come in after the fact complain about won what we wanted to be it might not have gotten there within two weeks three weeks four weeks of when we wanted to be there even though not once but twice they said specifically they agreed that there was no warranty or representation about a specific arrival date that's why i started this with this is about ace a contract between sophisticated parties who allocate risk doesn't mean anything or not thank you very much