eight point two five million plus another four million dollars in prejudgment interest on those that would any damages it's our belief that the trial court did not address i did not make correct decisions on both the imposition of liability the subject three redirected by the court at any point time the first issue that i wanted to discuss was the pre judgment interest issue in our view it was improper to award prejudgment interest i liquidated damages in support of that we point to the model legal decision of this court and the marshal decision out of the southern circuit both make clear that the basic purpose behind the award of pre judgment interest is to compensate the plaintiffs when there's been actual damages in other words to basically address the time value of money issue and that when you have liquidated damages which are just basically an estimation of damages before there is even any advance the basic purpose behind a reason to believe that you get any better of a rough guess if you're prejudgment interest on so we believe as a matter of law based upon those decisions and the other decisions that it was inappropriate to award pre judgment interest as a matter of fact as well your honour's  believe that is inappropriate you just look at the circumstances of this case i think the cases that we argue shows that there was no actual damages here nevertheless the court of worded eight point two five million dollars in liquidated damages and we'll get to whether that was appropriate or not but even if it was appropriate there's no indication at all in the factual record of this case that we needed to add another four million dollars on to make delta toe i would suggest you ha five million our word in the beginning was a windfall and the four million dollars is just a windfall of the windfall lessers questions on that i was going to turn to our second issue the second issue was the awar liquidated damages for late or incorrect payments again there was five payments in particular and we put those on our briefs where there was an award made of two hundred fifty thousand dollars each for later incorrect payments one two hundred fifty thousand dollars was awarded one payment was fifteen days late two hundred fifty thousand dollars another was nineteen days late killed in thirty thousand dollars we presented in our briefs the authority is says you should not award liquidated damages on late or incorrect payments of money the basic rationale behind liquidated damages which is you don't know how to calculate damages and there will be difficult to calculate does not apply in that situation and i think that the authority that we suggested says almost uniformly agree that that's the point of law and there's been no other authority cited the mistake of prejudgment interest in you take off  disagree your honor we raised three other issues and i think that those are separate from whether or not you have the forcible contract or the three other issues we were raised our number one we believe we complied with the plain words of the contract number two we believe that this is an extreme case and that was specifically carved out of the last decision and number three we believe the court below miscalculated in terms of several voyages of vessels and in particular on that  i think that's really important well because the court actually for two instances where there was a one vessel hired by one client and went out and there was two invoices issued the court said well that's only want to currents and that from june twenty eighth through july fifth there was two invoices issue the court said we want to kirk but then united tugs hired the vessel the skipper for a day and a half  went from about eleven in the morning on one day on june fifteenth or ten thirty in the evening on june sixteenth and the court said that's three different instances or occurrences so that  client was also goes from two hundred fifty thousand dollars to seven hundred fifty thousand no explanation about why or why that was different from the other two instances where he did something different and i point out the invoice numbers that are out there  consecutive invoice numbers so clearly it was done for the convenience of the count client and that was the testimony in the record below so we believe that also again your eve of the core believes that we have a contract i believe that it was inappropriate to award multiple awards of liquidated damages for that one voyage and a very least it should be remanded to the district court to explain why that's different from the other cases where he said no no it's only briefs and so i won't report the details of it but again our view is if you have one voyage for one client for one vessel that should be what most one incident or occurrence because there's that most one time w question i think in the end your is your honor but i think what we have this situation is something where it appears from what we have in the record that the court applied a misconstruction of the agreement now i understand that it's sometimes hard to understand exactly what the district court's thinking in particular in jury trials to give a large birth but in this situation where this is something we raised the civically in the district court and said judge this is you know there's only one occurrence here only one trip out i think we at least should be entitled to an explanation from the district court judge as to why that's different he did something different before i think to the extent it's a fact question it's a fact question that's not laid out in the record and i very least needs to go back down to judge fallon to be have an explanation of those we believe however that this court can and we've cited information in our briefs where if there is a construction of the contract which is a legal issue and undisputed facts which i think is the case here then the court can make a decision without remanding it to the district court and here we have a legal contract which says incidents are currents and we have a very clear undisputed facts which are it was a single voyage for a single client over consecutive days it seems to me that that is enough for this court doesn't have to sort of back down i'm now going to turn to the fourth point we make is the extreme case point again this is specifically carved out of the earlier decision by this court and how you read that but no i would agree your honor that that is  by the plaintiffs but i mean the footnote does say we declined to decide so what that says is there was no decision made on that point wound's now it could mean that you didn't give them enough to decide it on which would mean it's over we're not going to sit there and say this is an extreme case because what you've given us doesn't show us that even without reading their way around a bit i understand ultimately it's your reading that is the relevant one here i would suggest that's not the appropriate way to do it because extreme case import the post the court knows it's sending it back it would seem like if you're carving something out if you're doing a need not decide on a final judgment that's not going back maybe you don't need to be real clear but if you're sending something back to the district court as an appellate judge you've got to be clear about that and i don't see a clear carve out like henri man the court can consider this and that there's none of that so that's why i'm saying it doesn't seem to me to be a clear carve out the way you understand how you're reading it but i don't see it as a car about when you know you're sending it back for there to be a trial yeah i would say your honor one of the basic tenants of the law the case doctrine is that decision should be made on the merits of other various issues here i think if the court says we're not deciding this issue and there's additional facts developed in the district court and then it comes back up i think this court certainly has discretion and i was the additional fa m we had what we had your honor as we had the evidence from mr mathurin to mr vorse which were in the original appeal but then we also presented evidence from delta towing indicating that they really made no effort whatsoever to put out  for the charter there was an admission that when they got the information about the vessels then they put those information they had an availability less ok here's all the delta towing vessels we have available they put that day international bow to the very bottom of their list and they focused on doing their own boats and they said i think mr masm was very honest about that point he said look we'd rather our not hundred percent of the amount of the charter rather than just be given ten percent so if we had a charter opportunity we put our own boats out there and he was also very clear that he never made any effort to really market these boats so i thought that the whole point of liquidated damages wasn't just these qualities but but the competitive impact of putting these boats out there to compete against and so that that was part of the concern not just getting income from these boats but that these boats then compete is that not i think that was certainly part of what the court said in the first decision is that what you're protecting in a non compete provision is the competition itself and so that that doesn't to me the fact that you don't want to necessarily charter no exceptions here that exception was pretty clear that is if we give you the vote and offer it to you and you don't do anything with it then we get to go charter so wasn't actually we have a debate in the case you guys have a debate about whether it really was offered and you know you that first call that then they don't really ever operating in involve i mean i get that but to me that is a little bit different from saying that the only metric of whether they lost anything is whether they would have used the ship this boat or whatever itself i'm i would suggest your honor to the extent that the driving force behind this is the prevention of competition there are two alternatives they could either use or about and then prevent the competition or not if they didn't use our boat then we got to do it so soon as they decided not to use it how i mean because if you're the only ship in town that's one different that's different from your you've got another ship this i want to jump last in my last point is that we do really do believe i mean i remember we got in the case mr philips and i towards the end of this case and when i read the contract the first time i remember thinking we did exactly this a future reference this isn't how you do it you give it to the clerk in advance that this just if you look at the first column it lays out the thirty three breaches and then it matches up the international job numbers for each of the thirty three charters you can see in the third column there that they have it's it's we're not talking about invoices as international indicates we're talking about international job numbers there was an e mail produced a trial from  chase on who was the person at international in charge of implementing the the via say with respect to these tugs and he explicitly explained that it international internally they assigned a job number to each charter and that they were separate agreements he specifically said that if you look international tries to make some hay about the numbers the job numbers if you look at breaches one international witness related witness produce at trial confirmed that this chart was accurate he said this chart was one hundred percent accurate when he compared it to an earlier chart he had done for international which the fifth circuit in the district court had reviewed during the interlocutory stages and can and he said this was the accurate representation of the underlying documentation which adjoined exhibits one thirty eight in the trial  record if you look at those exhibits there's backups in the form of in a couple of them charter agreements where the job number will match up with the charter so you can tell from things like master boat logs and invoices and things of that nature what a charter was and what it was and so i just wanted to give you all that if you if you wanted to have any questions about a follow  page opinion the twenty page opinion from judge balland on a motion for reconsideration and then the fifth circuit opinion reviewing to novo those previous opinions only facially reviewed the  opinion judge found himself even recognized that in his motion for reconsideration the judge mcnamara had in his forty five page order had set forth the undisputed factual background of the parties the vs a in the course of performance in great detail this this wasn't a case where the parties attached the agreement and they made public policy arguments about what the language manner did and there was judge mcnamara relied on expert testimony about about charters out the links there of international in their own briefing admitted that a charter could be for three hours or for three years  i'll go through you know we can i can go through the fact that you know even judge fallon himself fan and that the fifth circuit side of the issue of waiver they decided the issue of extreme case if you want to talk about that i mean frankly delta agrees with the reading that judge chains are suggesting that they found in this case keep in mind that the restatement exception of an extreme  case had been adopted by the fifth circuit so what we think the fifth circuit respectfully decided was they don't need to decide based on the facts of this case whether or not the circuits going to apply or not apply the extreme case exception because in this case the only hand there you know it was not there was no evidence that they were damaged there was no new evidence at trial about that they had the testimony from mr murtha turned they had an affidavit that they drafted for m after trial he independently decided the number of let me ask you this if we were to reach the extreme case question what do you make of their argument there were no damages because they weren't going to charter these boats anyway i think your honor already knows the answer to that is this is this was a non competition agreement flat out that was decided by judge mcnamara by judge found and by the fifth circuit they all say the same thing paragraph eleven out is a non competition agreement right but it was not competition in the sense of we get the chance to use these boats ourselves and in essence get the full benefit but not that you can't use that so it's not a full non competing it's it's a we essentially you know we get the first dibs on it so if they had no plans to charter these boats they couldn't prevent international from using the boats they couldn't there would be the competition in any way they could your honor they had they had the right to charter it themselves the go on to drive it if they're not doing anything to charter it they had they had the well the purpose they bought the boats international bought the boats to use them internally right they they at first they came to delta steve williams the c e o of international and said he wanted to buy these tonnes and they told him no we're not going to sell these know use them you know in the gulf of mexico in the same business that we don't want to sell these to whether or not we were using them or not was pretty much immaterial they had other boats that were service in these customs so there was multiple rounds of negotiations the liquidated damages provision that started out office for a million dollars per day negotiated down the two fifty was eventually a number of thrown out there by international and it was accepted they the record shows that international would not have sold these talks to them at all without this non competition agreement with the provisions in there it required the office are the pre charge or obligations which are the exceptions charge or obligations in the post chart obligations which other payment obligations the preacher obligations are number one you have to let us know when they are available to be chartered other you know when when they first bought on they were doing some refer delta so the delta could enter and it's help us understand if it's an extreme case but i was answering your question about competition you said how i think you are asking me how these exceptions relate to competition and it's not just let us know that they're available it's you have to offer us offered to us on each instance to see whether we wanted to charter itself and then they have to get our acceptance of the charter and that's key because we need to know who you're chartering to and they said well we told you at one time one of the one of the charters was united tugs and so you really should be able to complain about that but the done spirit testimony at trial was in the vessel brokering business in the gulf of mexico except ability of a customer for for various reasons could change over time there was nothing that international introduced this feat that mr mclaren said you know that was his experience is very experienced in the vessel brokering business so they told us you know nine months lapse between the time they used them once and the time they used the you know the last time the news and then they had to agree on higher rate and duration and there was take up various competitive factors as to what your ok i think i was saying judge found after trial determined that there were thirty three charges out in violation of both the preach order obligations and the post charter obligations he found for each one of them specifically went through each of the thirty three charters and explained which ones there were said they all violated the preach order obligations said they all violated the postcard obligations and applied the liquidated damages as was his mandate from this court he did reference the fact that the fifth circuit and judge magna mera had found that international had conceded that there were these twenty seven breaches made any indication that he was that he was mandated to find at least twenty seven breaches he did an independent investigation of how many charges there were but certainly with the spirit of this court's ruling which is part of the law of the case that the charters how many charters there out there were and the fact that there was an incident or current per each violation of a charter outgoing international of are clear and enforceable under the facts that eleven f was a non compete agreement with limited exceptions the pre charge in post charter obligations again as i mentioned this is specifically spelled out by the fifth circuit budgets magnum are the fact that they trigger s in spelled out by mcnamara in the fifth circuit that international separate job numbers indicate a separate time charters again that was on issue and argued on appeal decided law the case the no actual damages issue on the number reaches with you this a bit went through the the preacher obligations the again is that international argued on appeal and at the m s g stage that they shouldn't be liable for liquidated damages for late insufficient in correcting it and that's what they're still arguing today we would submit that this law case as well  the in their brief international tries to say they didn't have the preacher obligations at least than the requirement to notify delta that the vessels were available each time they did a charter out going to through that a bit i think they have a rather strange interpretation of what the defined term cover term applies to that clearly defines the five year term of the nine from people vision and doesn't reference the the efficacy of and one email notification to you know to eliminate key preach our obligations going forward  the last there which there were thirty three charges as you as your honest can see on the spread sheet number six through thirty three international didn't do anything they just charg them and didn't tell delta about this was right after steve williams who is the c e o of international contacted delta and tried to reduce the payment rate over the ten percent rate and he with the agreement specifically says the vessels are being sold for internal use only and then has this carve out well delta just rightfully assume that they were in one a chart of them anymore and they were using them internally and not competing with  well turns out they were using them to the tune of twenty eight twenty charters which delta got wind of later in the in the business and sent to audit request via a letter which was ignored followed  up it took a couple of months to get an audit which happened in january that's when delta got all this underlying information that's exhibits one through thirty eight in the record joinings of its trial which again shows the backup for all these invoices and then shortly after senate demand letter for the liquidated damages  i have you can see in the record in it's in i think it's in joint exhibit five and twenty three that they actually have this goes to international arguments that the job numbers were charters or there were only so many charters is there was actually a charter agreement that  charter agreement has the job number one though the ones that i showed you all that your honors that were one twenty and thirty two the the ones that had sub identifications for a particular job number were invoices were sent under those subcategory sub numberings those were ones that went over to the next month mr bell those who was the c f o of international testified at trial that the only reason that these were given these additional related numbers was that so that they didn't go over the month and invoicing they would wait three months to invoice the other ones that international talking about that had different job numbers wholly different and unrelated job numbers were separate charters united tugs and smith marine were told brokers similar to the international delta and they would supplement their fleet by chartering out these vessels from  international or delta or whomever and internet both international and smith marine united tugs would separately charter out the the vessels to an end customer and it was the practice of all these companies as you can as backed up by the you know the backup evidence to assign different job numbers they were different charters factually and legally there was some trial and they kind of abandoned this point before your honor's but a trial they tried to argue that the the different charters the united tugs and smith marine guard of master charter agreements which we couldn't find no one find found in the records so i guess they sort of abandoned that but nevertheless those individual charters as i'm sure your honour's know under a master charter agreement remain individual choice on the pre judgment interest issue under a maritime contract an award of pre judgment interest is reviewed for an abus discretion under maritime law a pre judgment interest is the rule rather than the exception as is and is essentially automatic delta is not the one proposing an exception here internationally is in order to fall under an exception to that rule you have to show peculiar circumstances the only one arguably you know that have any chance meeting here would be that there were some equitable doctrine that would caution against the award there's no circuit case in the me that says liquidated damages can't be awarded mean pre judgment interest can't be awarded for liquidated damages under a contract in a maritime case simply not the case in real tubing but the policy behind it i guess is stuff or thin a fist sort of case real tubing which says pre judgment interest is proper to ensure that the injured plaintiff is compensated for the use of funds to which plaintiff wasn't titled but which defendant had use of prior to judgment but it's pretty clear here that these were clear violations which are demanded these were demanded in february of two thousand and nine and why should they get to keep a substantial amount of money and  you thank you your honor i just have a handful of points to make first of all i want to hear about a comment the judge haines made right at the end of my presentation that i wasn't able to answer because of the time limits  judge jane suggested that there was a dispute between the parties over whether the vessels were offered i do not believe that is correct i think it's clear that the vessels were offered we put in the evidence e mails where they were offered mr mathurin who was the general manager of delta said yes you offered them to us the dispute in the contract is what was the impact of that offer did we have to then re offer them every time we were going to go into a new charter or do something that's a dispute about the offer it's a dispute about this construction of the contract i think you are and that the difference is whether it's a factual dispute or a dispute that this court can decide as a matter of law and i believe it's an issue that this court can decide as a matter of law that says because if you look at the agreement agreement says if you offer them and if the during all or part of the cover term so says if you offer them and they don't charge of them out then we have the right now to directly stock chart of them out during all or part of the covered term i mean that's the language that's the language in the contract and we go to junk here higginbotham's point it's fair that we live up to the contract but if we did live up to the contract then it's not fair to award seven million dollars or more liquidated damages to us and we made the offer i don't think that's disputed and i think the contracts pretty clear as to what the impact of that is there was a suggestion that somehow we needed to get vance approval of the rates customers those are things that's not again not the contract says contract says they just need to be reasonably approved reasonably reasonable and again there's no dispute that any of the customers that we lent them to or any of the raids or any of the durations were inappropriate so i don't think that that's an issue so again i think if this court applies the plain words of the contract we did what we were supposed to do and therefore we had a right to let these out for all or part of the cover term that's what the contract says a couple more points  time there was a suggestion that bryan chase son said something about this in the case mr chase i need to testify in this case either and deposition or testimony so there was nothing about the job numbers that he said  the question about what happened on the previous appeal he said it's all off the case i would just direct this court to judge family and fifty four be certification where he says i'm just certifying these issues these issues being the enforceability and he goes out of his way to say they're separate and distinct and the facts don't overlap from the issues we're raising on this appeal which are liability and damages he said there was absolutely quoting absolutely no new evidence about damages i don't think that's correct the evidence that i talked about on my earlier argument was new these guys didn't make any effort to put the boats out there and that was their choice the either had to put the boats out there through them or let us do it they didn't have the choice to keep out competition in the entirety again just two last points there's a suggestion that somehow you talked about the number of job numbers and charters all the rest of the stuff again i direct the corps back to the contract the contract says you ward liquidated damages per incident or occurrence and i don't think there's anything that suggests one incident or occurrences where you let one vessel to one and it's easy for one voyage i don't care how many different  charters for the one or the charter numbers for the ones that the judge didn't award as one incident were totally unrelated and he said wholly different and unrelated job numbers that's not correct they're consecutive job numbers if you look at them and that was get those job numbers are on our brief and the family i would end with the point that i tell him about maybe and that is there is no case out there that has ever upheld the award of pre judgment interest on liquidated damages they tried to  one and as we indicated in our brief that was just loose words by the court out in new york city what the actual the award was there was they were awarding shipping charges and they were actual damages that weren't paid so i would