is a type of inspected vessel but rather decide that it was an unexpected vessel on march fifteenth twenty sixteen the district court made that ruling because it decided that there was no passenger for hire on the vessel it based this ruling on a misreading of the statutory definition of the word consideration which is a prerequisite to finding a passenger for us for hire this was harmful considerations so can i ask you on the consideration point your argument zeroes in on the fact that the company paid for the wages and not only the food in fuel or whatever we're talking about is that that's it right it's the wages you're on i think the point is a little bit broader the point is that there is consideration because consideration is defined in the first part of the statutory section as an economic benefit and use meant right or profit and so the first argument is that that is present here and the second argument is that exemption doesn't apply and the most salient we've made that point is to say that crew member region is not in one of the exemption you know examples so the point is it really turns on considerations of is present because they can but  want to be clear that there's no evidence that anything above the actual expense of running this ship paying the crew putting fuel in pain for the food there's no evidence that anything above that was paid is that fair honor that's complete it was a net net and so we have to decide whether a net net is the consideration that's being discussed in the statute or not that's exactly right ok and in response what i would point out is congress chose to use four words but if you use the a net net i mean if if i didn't take the boat out that night i wouldn't have to go pay fuel and wages but because i'm taking the boat out i pay fuel and wages and you reimburse that how is that a benefit i just didn't have a detriment i didn't lose money but i didn't gain much right but benefit has to mean something besides besides profit and a very using the kind of net net understanding of benefit then essentially reading benefit to me profit read benefit to me no no because i could charge more and still not yield a profit because i have to pay for overhead and i have to pay for the other expenses of running this shipping company so i think that would be a benefit in that i'm offsetting overhead but it wouldn't be a profit because i don't put money in my pocket because i still have these other expenses so it's kind of the variable versus fixed expense of accounting analysis i understand the point your honor but i think in that case what you have to do is really look at the exemption and the wording of the exemption which says voluntary sharing of actual expenses of the voyage and so the benefit is you're getting you know these expenses paid back such as crew member wages and it's not a voluntary sharing of the actual expenses of the wage why is the crew member of age wage not an actual expense of the voyage because your honor congress decided to give us examples of what it considers a voluntary sharing for example you know fuel food other supplies it didn't use the word reaches or anything like that and you know by using the word other supplies it's essentially indicating you know this is this exemption is for the situation where you go out on a sunday afternoon with your friend on a boat and you're voluntarily sharing actual expenses not a situation where as here  which is the sister company that used to use the big belly had to pay back big value on the vessel i'd also point out that you know in considering whether there is consideration or not decided on page twelve of our brief some testimony from the record and what's important here is according to the testimony big value used in morse bills to its sister companies and i think that's important because it shows that this was not a voluntary sharing of the expenses as well is that somehow confuse the point of view in terms of assessing who gets the consideration what's important and such true language is that consideration has to be be paid to someone but it doesn't have to come from anyone it can come from it it can come from anyone you know in the world so you know the district court essentially thought that since mr scholer did not pay the consideration there was no consideration here but as the evidence still clearly demonstrates big valley was paid by earth gone which is the sister company ok so if we were to agree with you on the statute then the question would get down to he said it was harmful error and we get down to cause ation and i know you have an argument that it's not your burden to prove causation is their burden to disprove it but let's assume you're at trial and you're making your closing argument on cars ation can you walk me through how captain gryphons drinking two three four beers whatever it was because mr schollers paul sure owner you know first i think the big difference having that having the coast guard regulation makes is that there is a credibility factor that comes into play which is essentially you know plaintiffs counsel gets to stand up during closing argument and basically say they have violated a coast guard regulation and that meant that they were not concentrating on their duties now the evidence at trial showed that you know one of the crew members thought themselves to have is if they saw someone who was intoxicated that usually took that person and put them inside the cabin and so because issue like is strengthened because now you can point to regulation and say they're violating the regulation the regulation is in place so that crew members me concentrate on their duties and the inference of the causal inference is stronger that they weren't looking out for intoxicated passengers ok but i mean if you look at captain griffin's testimony a lot of it was he should have had these policies in place you can't climb ladders while the ship is moving these policies would have been put in place not that day when he's already drinking the beers but at some point in advance so that doesn't mean they do with the beers he wasn't there when mr schaller climbed the ladder and climbed back down he was running the ship so what is it that he was supposed to do that he didn't do because he was drinking not because he's just not a good captain but because he was drinking he did something different than he otherwise would have done and that caused mr shall fall well your honor i think you have to step back and look at the sequence of events which is essentially essentially you know the captain is in the bridge with another passenger who's the shoulder comes in with four beers you know can go upstairs and the captain let him go upstairs and i think the causal link that you're looking for really is you know if the plaintiff's attorney had been able to point to a coast guard violation they would have been able to see had he been concentrating on the beauties he would have ensured that someone who had four beers and was clearly you know intoxicated evidence you all brought out a trial suggested griffins just kind of lax and doesn't have any roles and lets people climb up and down ladders having nothing to do with whether griffin was drinking or not so that's what i'm trying to get to negatives for say gets you past whether a reasonable drinking of the captain and your honor i understand your point and i think there be two responses the first response would be because a link would be stronger had we been able to say that you know because the captain was having your two he was not on this coast guard regulations and that in turn means that he was not concentrating duties on him on his other duties which is making sure that intoxicated passengers are sitting inside the cabin instead of climbing up to the to tower and so i think that causes o to stronger there the second point would be that we do think the pensive in pennsylvania rule applies and so the causation burden would have shifted onto the defendant and the defendant wouldn't just have had to prove that you know why listen because guard regulation  probably would not have left lead to the injury but it definitely could not have led to the injury and that's a pretty high  reached at the district court level essentially the evidence of the evidence that the jury could have used to you know find intoxication had done so would have been the testimony of a having wanted to be yours there's not much else i drinking now there is evidence that one of the other crew members might have had something like four or five years every time they celebrated getting a big cash but that was the evidence of alcohol consumption and the trial when we're looking at whether pardon me whether your client can be viewed as a passenger for hire because we're looking at consideration which one is more legally helpful three which one matters more is  compensation that big valley paid to the crew or is it the payment that irgun made to big valley or combination your honor definitely  gone me to big valley and if it's helpful i have submitted a venture exhibit for you and time for is the statutory definitions and issue and that's true even if big valley received no sort of financial gain it was just a simple reimbursement your honor that is exactly the two definitions that help us help us the most are the definition of consideration and here you can see that the economic benefit inducement right or profit valley to the crewmembers but your argument rests on us construing the by the monetary credit contribution of or donation of fuel food beverage or supply their supplies that the fuel food beverage or other supplies modifies expenses and limits it to that that that's what it rests on if we were to conclude that no by saying monetary contribution you could you know capture the wages or somebody could just show up with a big bag of fuel or few and make it that way is a barter that it's an either or that would defeat that argument your honor and i think that is part of our argument i think it's the other part is a little bit broader because we also argued the first part of consideration which was you know there is economic benefit flowing from  if the captain wanted to take the ship out that day and i bring a big bucket of fuel that would still be a that would be under your definition of a sharing of the expenses because i brought the fuel even though the captain benefits in his head because he gets to go out and do it or whatever big valley likes to use their ships or whatever their benefit is your honor i'm happy to concede the hypothetical the problem with that hypothetical is the reworded which is you said if you decide to take your boat out and i decide to bring a big bucket of you know fuel but in the case at hand what happened is that early on had to reimburse the valley in fact there's a in which that's in the record there's testimony in the record that you know to make arrangements to use the big belly you know the sister companies had on advance and then afterwards had to reimburse them so i think the hypothetical is exactly correct it just doesn't match the facts of this case turning next to the next page passenger for hire i think this definition is also favorable to us and your honor i'm happy to answer more questions on the consideration and such true definition issues but if you have any questions about the preservation or case management issues i'm happy to address those also i see that i'm running out of time well in that case i'll reserve the i don't think you ever have to get to whether to use a passenger for hire i don't think you ever have to get to the question of causation because in this case the pledge failed to follow judge africa's direct order and failed to preserve the evidence for peel in this case it ok i think we should stick to the facts of this game but what's it what is important judge the policy reason behind requiring evidence to be preserved objections to made contemporaneously one of them  making the same darn objection in argument every single time they see me in the case and i respect that when i was a trial judge i respected that but it was like for the fifth time no and so we have said we've kind of relieved trial judges and lawyers of the burden of continually hearing the same objection an argument once the judge rules unless the judge indicates i'm vacating that ruling i want to reconsider it but here every time the judge there after asked for a briefing it w for the unexpected vessel issue not for i want to start over with what consideration means fair i'm going to address those four requests for reasons i'd like to address them but just to finish my last and in this case your honor capillaries did it comes in and lists several body of regulations he doesn't talk about the specific regulations he lists thirty three ninety nine point zero one at sec which is a body of regulations eleven regulations underneath that inspected vessels they never thought it was a demented ruling judge when they listed this particular step they went back to inspect the vessels before the judge after the judge's order so then follows one of their big down important point they also did not explain the relevancy of those regulations they talked about inspected regulations they didn't talk about the specific one they never told judge africa the relevancy of a number of a number that was  and to explain its relevancy but we always say experts are supposed to tell us the law so the law is what it is without regard to whether an expert testifies about it if if this statute applies about the not drinking we know he drank so we don't need an expert to tell us that so what difference does the expert make to that point has to be relevant to the twenty in this lawsuit to give it relevance is also a question for the court so if in fact this was a small pet passenger vessel then this regulation applies and the captain violated it i don't know what an expert would tell us about any of that the expert would tell you what how the regulation applies in this situation you're that presupposes that the regulation does apply in this situation tell me why it was to the situation and he didn't do that and i couldn't defend against it experts are permitted to testify about regulations your honor in to explain the relevance and how they came about and how they fit into a particular situation and all japanese saying is and i standard my point is an abuse of discretion standard you'd have to find the judge africa abused his discretion ok let's suppose that we were to find it preserved what is your answer to the point that because consideration says as directly as follows consideration is not voluntary sharing of expenses of the voyage by monetary contribution or as you pointed out earlier donation of food fuel beverage or others in this particular case the world or is really poor because as you pointed out earlier on a donation i mean fuel food fuel beverage and other supplies is money modifies the nation doesn't modify voluntary shit but what about the word voluntary they're claiming i guess that it was involuntary because it was an invoice as opposed to me showing up with a you know big bucket of fuel or whatever the right term is a good tank of fuel and i was sent an invoice for the tank of fuel is explain that and explain how that is or is not voluntary i don't know that there's any definition of invoice in this world that says if i give you an invoice for something that we've agreed is a voluntary contribution you're just going to maybe it was for book purposes i don't know on the direct into that question judge it wasn't an invoice per se for services rendered it was one word as of one witness in the deposition the word invoice was w invoiced was thrown out there i don't know that anybody defined the invoice i don't know that anybody got into the nitty gritty on it i think well what evidence tell i have that it was voluntary versus involuntary as a result of arrogance a family business owned by three brothers they have a bunch of affiliate companies this particular boat big valley used by the family for the most part except if aired on wednesday customers i want to they let the big valley go out of the customers and everyone reimburses them for the wages for the actual expenses the book do they have to give maybe an invoice or a document to show force to show his wages were a dollar an hour ten dollars an hour sure that's probably what it was of which i have direct answer for you but that's probably what it was  involuntary sharing were sharing expenses we agreed to share the expenses involuntary share expenses if your are ordered me to share expenses with my partner i guess that would be involuntary sharing of expenses but in this case there was no court order there was no contract will arrangement in our brief and this is what the coast guard says about this exact issue employees or business clients that have not contributed for their carriage and are carried for business and entertainment purposes is included in the exchange of consideration and that's in our group that's how the coast guard of the united states interprets this nothing the purpose you should give deference to them i would submit in this particular  do you agree that if we were to reverse and send back for trial that you would have the burden of proving no way no how did this cause no absolutely not that's really important what the negligent personal negative motion not in any expert report nowhere along the way which is why they abandoned ok but it doesn't matter that in abandon it because what they would like to have you believe is that the negligence percent shifts the burden violation of a rule of the road ok which is a navigational rule naturally leads naturally and common sense leads to the fact that there that there is causation so the burden ships in the f must prove that he was within a class of persons he was with in the class of persons that the statute was designed to protect and to the point it has to prove that the injury he sustained naturally flowed from the violation of statute the first circuit does not switch the burden of proof in mid term under the negligence for say standard in personal injury cases under the general maritime law there is one case that does it in the fist circuit called read case the point if not only does the burden of proof shifting really not matter for evidence purposes your honor we cited the record completely the overwhelming evidence in this case but he was not drunk he did not appear to be drunk he did not appear to act the radically he did not appear to act like drunk people act well neither did mr schaller apparently because he let him climb up this ladder and all this stuff when he ny which makes no sense to me he didn't violate any order of mine because by the time he fell he was coming down not from the tower but from floor to floor one for better and your other dr writes my point you know who gets to make that decision th didn't he also say that i told you i don't know whether he said something or two he said i told him to go up there and knock him down but then he said yes but that the lawyer said by the time he was coming from for two to four one on it remember the technical term for that he was down to the tower and so captain he wasn't violating any order of yours was he you know we wasn't so then that our group ok if he said that he said that and the jury also heard the words the jury also or the words i told them to stay up there in the jury chose to believe should the state of the i get the so i can say that in other words he didn't violate my horror don't you move but judge he said them come down so i'm with you and i understand the question did you say stupid witnesses griffin hustles mr schaller to the united states coast guard station where captain griffin is interviewed for an hour period of time by the coast guard offices so you think of a body to be paraded they would have done something a few minutes later he was interviewed in detail by the of ink the argument on causation has to be although you're counsel of that and make it quite this way that while he wasn't drunk in the sense of stumbling and making the ship go off course and that kind of thing it affected his judgment to the point that his own judgment was impaired to perceive that you were that schollers drunk that i think is the argument that he was diminished not at to the point of you know being drunk and falling down or whatever but to the point that his own judgment that very high level of judgment that you need to perceive someone else's drug and to look out for someone else on your ship was impaired i think that's the argument although i asked the question i didn't get that answer but that's what i'm going to give you i th evidence in the record of that th please look at the end of our brief where we discussed an admissions per se and the shirt shifting on because i think that at the end of the day the fisher has made it clear that an injury general maritime law cases now need to distinguish between the jones act case because there is a got to come or you want to submit your charge of negligence percent you've got to give me the jury charge the judge and tell me what it is and what the judge then has to rule on the record in open court during the trial and explain why does not even going to give a charge and we have to object to the jury charge on the record as the reason for that roof the reason for that rule and the reason is not tied into definitive ruling under one of will be and the definitive ruling against it so that the district judge can get a chance to correct any errors that he may have made previously in this particular case before judge africa even rules in june before the rules and you insist the plaintiff submit jury charges jury uninspected regulation forty six of me is what he cites judge advocate never took that away never so why didn't the plaintive if he was going to argue no this is per se argued the uninspected statute much per se your burden shifts how would then have had a chance to defend against it and now i am hamstrung if you reverse it your honor is i got a trial without a cap what i'd like to begin with the preservation issue and really give the court a short bed this issue has been preserved and i think the bench exhibit will help with that because i can point to ten senses from the record that demonstrate preservation if you look at tab born this is the march fifteenth order that the district court judge signed in which he decided that the vessel was in uninspected vessel and as a matter of law was not the small passenger vessel and decided that since it was not inspected vessel any regulations related to inspected vessels were not this is the word revealing is a pure question of law ruling if you look at have to this is the invitation from the district court in between sixteen to brief up any regulations related to an inspected vessels and it clearly is asking the plane to talk about any unexpected vessel regulations that are political and then if you look at  have three this is the joint order of and there are two sentences that are first the district court recognizes that in march fifteenth and sixteen it took away any regulations pertinent to inspect the vessels and then the district court decides on the next page and on the last page that it was one to exclude regulations related to uninspected vessels this is our point about the preservation issue what we're appealing is the march train sixteen ruling after the district court made that ruling it never really opened the door about regulations related to inspect the vessels and that is why this case is exactly on all fours with overfull and the judge granted a they did it here is this regulation that's right you're ok the second point i want to make on this presentation issues if you look at the record on peel page one hundred ninety five to one eight nine six this is where m regulations related to the uninspected vessels you know and in response to the district court's invitation i think it's clear that inciting the regulations he's not trying to reopen the door as it were about regulations related to inspected vessels the second point i'd like to make and just change you're asking about this which is the cause asian issue you made my point better than i could but it's in our briefing as well if you look at our brief opening brief on page nineteen recites to the defense's talks law toxicology expert who makes the very point that you're making which is if you're consuming you know one or two beers your judgment is impaired and you might not be able to make the same determinations for example about if someone else was intoxicated as you would have been able to otherwise the third point i'd like to make is you know the whole debate we're having over consideration i think that's the most forceful statutory argument we have and if you look at record an appeal for forty that is  you as evidence that this is not a voluntary sharing of the expenses but i guess what i mean invoice to me has no meaning unless i'm forced to pay it under some theory so i mean i could say i need something for my records would you just send me something so you know i'm willing to pay for that i will pay for you to drive me to the airport up pay your gas because you just send me something so i have that for my records i don't know that then you sending me something means i didn't agreed to do it without being forced to i guess i'm just having trouble with what invalid theory is versus voluntary here because if i agree to do it that's voluntary unless i was forced by a cord or a gun or something y understand your has taken but if you look at record on appeal for thirty six to four thirty seven i think that's the testimony that establishes that this falls into the involved ticket involuntary category where the voluntary category however the court might write the distinction in terms of defining that distinction the third point i'd like to make is you know we talk about the pennsylvania rule and i would just cite the court to the pennzoil case and also they can use to a case both of which were in the briefing that show that the pennsylvania rule lies and then the last point i'd like to make is you know the negligence per se fieri was done or it was in our pleadings and then once the march three sixteen really the hearsay rule for this very reason and so you know there is a videotaped deposition and there it's in the record the transcript of having driven plus captain driven testified at trial so presumably the former testimony exception would apply in this situation