vessels in navigable one of the united states created to say the least a highly regulated field in fact the very regulated and cited to this court with regard to the soros operations manual which are the focus of opponents arguments here they were passed in september of one nine hundred ninety in response counsel i have let's focus that argument short because as i read the district court's opinion and as i understand the testimony there's no regulation that's been violated here because the regulation does not require regulatory violation my understanding is you're relying on the operations manual and if i take your argument it is that notwithstanding th regulations don't require the operations manual does and that it creates the standard of care i would like you to cite me a case binding standard of care as opposed to it's evidence as the restatement third i think treats it as evidence of a violation  of duty but not negligence per se so what's your what's your case if i correctly understood your progression of your theories and that's what judge  said he specifically ruled that he was not satisfied and there was no violation of the regulation and he didn't think you had to stablished the common manual but if he said there's nothing in that that there's a regulatory violation i think that if you don't operate you know first of all you want to you've correctly framed the issue and i think everything you stated is correct that we did not mean to suggest that there is that the evidence of the custom established by the to sort of regulations or operations manual would itself be negligence it is indeed evidence of negligence and we didn't cite the case to the court for the proposition that it is in fact proof of negligence period because there isn't one ok but the but court i think is missing one key element here there's two parts of th yesterday which is the public resource code california public resource code eight seven five eight dealing with marine facility operations manuals that code would write deals with maintained or be carried out in accordance with the operations manual ok so the failure to heed the principals of your operations manual is a violation of a regulation is a violation on my understanding as i think we all stipulate that violation of the manual is not negligence for sapphic or if you just just say that but my understanding of judges is he's the logic of his ruling is that somehow the manual was he was the gentleman who was responsible for approving the manual reading the manual and applying and forcing these manuals on with regard to these terminals and his opinion was that the the the storm and your inspection could not have been more or for failure to comply with the manuals so long as it complied with the regulations you're for three you can't write violations when regulations are being complied he did in fact say that that it was a violation and he said that we probably would incite them we would probably talk to them but he admitted that it was in fact they violation to act in a manner not in accordance with the manual ok was that he said i find that the standard of care was lower than what was set out into sorrow's manual right practice by weather regulations right so ok so they didn't comply with their manual that doesn't meant render them negligent you've conceded that that's that's true so i guess i don't know if you would put on persuasive expert testimony that the custom and practice in the industry was to do what was set forth and to source manual maybe you'd have a better case but you didn't according to judge kozinski he found that standard of care in the industry was basically what the substance of regulation itself sets out and so the fact that soros manuals promise to do something higher is neither here nor there you know i think you missed the point that they're obligated to comply with the manual and that the failure to comply with the manual pursuant to the code i just read you isn't saying negligence that what isn't is not negligence evidence of the questions i mean but he found more persuasive the evidence that the standard of care in the industry was lower so i am less you can get around that it seems to me you're going to lose anyway why am i wrong in that that's what i that's what i was left with after reading all the stuff so why am i wrong what i mean the because at the going back to what i was saying earlier when we first got discussion this is a highly regulated field them you're asking them to do you know what the judge did is essentially ignore one of the key regulations we for one which is the one i just cited to the court notice that regulation makes it clear that if you set a standard you've got to comply contract action against the operator for not complying with the manual of some knowledge that contracted with you to give to provide a higher standard of care than the negligence law requires but i guess i'm not doesn't your answer didn't doesn't seem to me to be witnesses witness questions about his booming survey he cut us off he sustain the objection two questions about the bombing survey and without holding an evidentiary hearing decided that the our expert frank whipple could not testify as a significant misrepresentation with respect to mr porter mr porter is a state lands employee we were just told that he's the one that reviews and approves these manuals i just like to read from the record at  just representation you might mean a misstatement but you're not accusing your colleague here of the liberally trying to mislead us right it's a misstatement at the least we were specifically told that this is the man that's responsible for approving these manuals that is not correct record three ninety four winds one through four question and you're the one reviewing these manuals right answer i'm not the approving officer standard of care to be what exactly did he find the standard of care to be so what judge kozinski weighed he weighed very carefully significant why did you wait wait i asked you what was the standard of care so the standard of care is that really there is no requirement it goes to the regulations there is no requirement to boom the off shore side of an off loading or  discharging tanker that's clear per the regulations and nothing about plaintiff's evidence change that in fact they're going to salt the manual doesn't the manual require something else the manual does state that when handling persistent oil you will boom the entire vessel that's sometimes situate that's our situation here that's our situation is that the the vessels cargo was a oil not the oil that's not going to judge because it didn't find a manual useful because he thought it was ambiguous i'm not clear why the manual was ambiguous i believe the answer to that question is your honor is that north of england was urging to read a requirement into the manual that isn't written there the manual language itself states that you will boom the entire vessel and that you will maintain a four foot set off but nowhere does it say that four foot set off has to be maintained entirely three hundred sixty degrees around the circumference of the vessel it does not just say that it's a round the best it says the boom placement is around the vessel not partially around the vessel or even just a round of us correct now that is to saros practice and the reason for that is a very practical reason they have a boom at one end of the dock and in order to comply with the regulation for a discharging or off loading tanker where you have to have a four foot set off from the receiving unit dockside the easiest way to do that is to wrap the boom around the entire vessel because in doing that you provide that for foot set off on the inboard side where it's required he would tell me get what you have big us about about the manual well what kozinski stated is that it could be read the way the plaintiff's counsel was urging the manual to be read but that's not how he read it he said it could be ambiguous  the issue that i believe he was commenting on there are two aspects of this provision subdivision of the manual one is placement placement simply says go around the vessel and there is no indication that that wasn't done in fact that was done here so the only aspect that there is a difference of opinion being urged by the two sides is the forefoot space or set off on the  up for feet it simply says maintain a four foot set off what if us about that well it's being urged that that four foot set off is supposed to apply three hundred sixty degrees around the vessel in our view and this is supported by significant testimony that i'd be happy to share with the court in our view that reads into this supports the reading that the four foot set off is concerned with the same focus that the regulations require less let's just say i think what joe solmonese asking is let's just say that we read the manual to found that there still was no determination of breach causation i mean if you find that duty that that does impose a duty but how can you how can there be no breach of that's that if if if you know if he  requires it's important to to keep in mind where this spill occurred this spill did not occur in the cargo handling area at all the cargo handling area of the ship is what's referred to as the parallel mid position the reason why this advances my position is where the spill occurred you also have a difference in geometry of the ship's hall you have a curvature of the hall there and we have testimony that even with a four foot set off at the spill location where the oil into the water a vertical line from the side of the rail at that location directly down is more than four feet beyond the intersection of the hall and the water so there's a causation issue there i thought ok but because here the oil spilled out onto the deck and then just kind of went over the side and that's how it got in the water well it certainly pulled up on the deck for quite some time in the hour and a half that the pump was left running after it was inadvertently left running and not secured ok and then it then it cascaded over the side at some point when it rose to the level that it overcame the very and you're so you're saying you your side put on evidence that even with a four foot set off well would it still fall on too far out and it would've gotten the water anyway well i'm saying the plaintiff bears the burden of proof on that and since the captain himself estimated the distance between that intersection that vertical line and the hole at four feet four to five feet and you had another plaintiff witness who estimated it three to six feet i believe that was the captain he i'm calling the substantive regulations you know what i'm referring to nonetheless he found that the only duty imposed by tort law on to sorel was to comply with the substantive regulations regardless of whether their manual sat can't remember the terminology used but it was like you know white response rather than come up with this causation rush and i'm asking that honestly because that's where i was leaning but now i'm kind of doubting whether i was what i think you have both so i think the i think the judge kozinski is ruling it's clear that appellant failed to opinion under california law if you have a plausible argument that the contract languages ambiguous then you can put in evidence to show that your proffered interpretation is the correct one now it's a question of law how the contract  you have to sorrows argument that really the language is intended to comply with the regulations not set a higher standard and that they complied with so i'm wondering if we don't get into that kind of a mess and trying to figure out  it doesn't take much for california contract to be deemed ambiguous and subject because the reason i'm thinking that is he was looking for custom and practice in the industry said you know he haven't shown me any custom and practice all the seven lives has come in before me and it seems the regulations themselves so it's only in this particular area when it's offloading troubling me about the case so as i said we have significant evidence that the sorrow manual is to be interpreted in the way per the designated testimony of captain mccoy the actual regulators who provided testimony about being at the spill location and who saw the conditions at the time of the spill had both testified that they've been to to sorrow operations previously and it was handled consistent with the way that they had previously seen and it's also consistent with what whipple the consultant testified to the use of these spacers it's in the cargo area not after not around the the start of the vessel so all of the evidence other than counsel argument points to us the set off requirement is only in the cargo area not where the spill occurred the only way that this manual provision is different than what want to address briefly the question you raised about per se negligence just to clarify we didn't contend that there was per se negligence with regard to any violation of the regulate the booming regulations because they don't apply here because if there is a the california code of regulations and of the public resource code both require them using the mandatory language shall to comply with what he set forth in their operations manual and that is in fact what they did not do in this case i true then fine grant you that they might have violated in a technical sense this other regulation that says comply with your manual but how is that negligence percent because because the man over acquired that they've used a four foot set off and of that's the case why don't they cite them with reference to the operations manual and say we don't care what ships are doing we will cite you for violations because your operations manual he's just argued will stand submitted