this case clearly erred in declining to dismiss the case on the grounds of international comity the relevant comedy factors that were set forth by this court in all favor litigating these claims in a japanese fo in the district court found that japan would provide an adequate alternative form for these claims in particular the foreign policy interests of both japan and the united states favor centralizing claims for nuclear damage in the courts of the country where the incident took place where the facility is located we know that japan shares that strong interest because it has filed an amicus brief in this court articulat interest in very strong terms expressing its objection to the fact that this is the only claim arising from this incident that is outside of the japanese court system or dispute system and saying that that undermines its policy and the framework that it has set in place to respond to do we have any idea whether if if if a judgment were issued in an american court in this case whether that judgment would have to be satisfied after the funds that japan is set aside or whether we have it would have to be satisfied out of some other fund if the if there is compensation for claims that arise from damage from radiation exposure  and that's the compensation we're talking about compensation for injuries and arising from radiation exposure then the satisfaction of those claims would have to come from the funds defendant who pain and suffering excuse me  suffering that would include pain and suffering is the damage defined in the act on compensation for nuclear damage in japan is fairly broadly defined but your answer your question most funds would alternately come from the government of japan indeed the government of japan has stated quite bluntly in its amicus brief that it has maintained the solve in c of tepco by and supplying it with funds through n d half in order to pay the substantial and in tens of billions of dollars of compensation that has already been paid in japan at this point lead why don't we have a statement of interest from the united states we asked the district court to request the views of the united states the district court declined to do that believe that the court had a sufficient record to rule we disagreed without we asked again at reconsideration and we raised that issue in our brief that the district court  certainly before it decided to deny dismissal on international committee should have requested the use of the united states so so how do we know what the interest of the united states is i think we know what the interests of the united states is because we have two things that provide strong evidence of that first we have the codification of the formal policy that i described in the convention on supplementary compensation but we also know from the senate ratification testimony that the executive branch gave to secure the senate's consent to that treaty that it said that this provision on jurisdictional centralisation was not an innovation and not a present for it to take effect so certainly that is the rule going going forward and that issue has been raised in a separate motion to dismiss that was filed by general electric that it was held in advance pending the resolution of this appeal but that doesn't mean that there wasn't a policy of the united states with respect to this issue prior to that and this wasn't some stray comment this was at the the testimony given by both the energy department and the state department officials both said the same thing in response to a specific question on this point from the chairman of the foreign relations committee it said excerpts of record one eighty one the chairman said does this in effect limit the rights of s persons to bring suit against energies or companies in the united states courts or against u s companies for actions overseas and the answer given is mr chairman the short answer is yes but then the mr stern the state department witness goes on to say as a practical matter in today's legal firm work where there is no c s c we would expect that if a nuclear incident occurs overseas u s courts would assert jurisdiction over a claim only if they concluded that no adequate gravity exists in the court of the country with the incident occur that is a clear reference to doctrine such as comity and for my convenience where the adequacy of the form would be a stop against it that's an expression of the us policy which is not an innovation we see that policy also reflected in domestically in the price anderson act which also centralizes claims within our federal system and we also prediction of what course he would expect would do in light of what u s policy has been in the area of nuclear liability and we see that policy both domestically in terms of price anderson we see it in the paris convention the vienna convention which the u s is not party to but we also see it in finally codified now officially in the convention on supplementary compensation so he articulated both witnesses articulated in the  their testimony well than than than are you saying the position of the united states is sufficiently articulated so fair if we thought otherwise it's not necessary to ask for a statement of interest from the u s i think that it would be appropriate to request a statement of interest from us particularly if the court has any doubt on this point as to what u s policy is on this point the easiest way to do that and the court pointed out can it's useful to have would be to request the views of the united states on that on that question we certainly think as i have articulated in the briefs and just now that there are sufficient interest as to what that policy is but certainly if the court has down then it can request to the views of the united states on that question with respect to the issue of the political question doctrine the district court heard in this case even though would assume that if it had to evaluate the reasonableness of discretionary decision making then the case would be not just issue ball and the plaintiffs don't really challenge that question the question is whether or not a judgment about military decision making would need to be is inextricably from the case and would need to decision to send humanitarian aid following the earthquake and tsunami it was that correct that the district court erred in that respect in thinking that the reasonableness issue had dropped out of the case and the district court erred in that regard in two respects first the district court treated the issue of forsee ability as to sponsor tive of this of the issue of the u s government's role in causation when you look at it is proximate cause ation look at it a superseding causation that issue is not exhausted by the concept of foreseeability but then the district court also say that in light of the the second amendment complaint that the the defense a bird to be i limp and above all or something like that the district court said that it appeared to be untenable but that was also legally wrong in the sense that a as i'm pointing out  was based on the assumption that foreseeability was dispositive of the issue which it's not because even if something is foreseeable it can still be under for example section four fifty two to which we had cited of the restatement of that concept it could still be a superseding cause and could break the chain approximate causation but we also pointed out that the foreseeability analysis itself was wrong because the proceed  analysis was based on the fact that it was forseeable that the united states would show up and provide humanitarian aid but that's not the relevant inquiry the question even if you look at it from the point of view for see ability which is not the standard if you look at it from that point of view then the question is whether or not the acts that cause the injury were forseeable and that's where you get to the irreducible allegations of this case that show that the role of the military is decision making does not and the alternative farm i don't think it does here in two respects first the first step in any choice of law analysis and it's true both in terms of california chairs of law principles the restatement choice of law principles that would under federal common law or even issue a prescriptive comity under the restatement all of those the first question is is the relevant difference in the law and none of the parties has with respect to the specific and narrow issues that have form for the first video a d r process but there is a court process and that whole proceeding is set forth at length and professor taniguchi is declarations you can file a regular lawsuit in japanese court invoke the strict liability principles under the  sixty one act and then the only issues left are causation and damages they paid if you go through the claim procedure that the japanese government is set up or you entitle to g piper aircraft the fact that remedies are different or fewer in another jurisdiction is not entitle to substantial weight in the form nine convenience analysis and the same would be true i would submit in the comedy analysis but it's interesting you know i concluding that japan did provide an adequate form it's got a legal framework that fits all of the elements of the convention on supplementary compensation which says what a nuclear liability regime that it will excite i think that issues really contest that it's is true in this case is to depend japan's get financial backstop has been triggered so when the if we have the same case the united states would be no punitive damages if price anderson controlled in those circumstances but there's no question about the adequacy of japan's system there is a robust regime there but let me go back to the political question isha in the fourth fifty two analysis four fifty two to provide for an exceptional circumstance and idolater that's an exceptional circumstance where the intervening act of another party with a duty to protect the plaintiffs fails to carry out that duty and then that can raise an issue of superseding causation whether or not that applies depends on several factors that are set forth in common f of the restatement and if you look at those factors then case that you look at whether the character and position of the third person and their relation to the plaintiff here it's one of total custody and control of the plaintiff's you look at the degree of danger  the awareness of the danger all of those factors here would suggest that the navy did have a duty and it did have the capacity to in determining where to place them and what measures to take to carry out that duty and that's why we say that there would be a superseding cause let me just briefly address the fire front is wrong and i'd like to reserve the rest of my time for responding with respect to the firefighters for this case provides a very unusual and very narrow situation it's only been presented in in a handful of cases and that is we're an event that isn't triggered by negligence necessarily here it's a natural disaster combines with preexisting tortious conduct to produce jointly a result that injures the plaintiffs and the question is whether or not the independent cause exception applies in that circumstance and for the reasons we've stated in our briefs and the cases that have addresses either in a holding or in dicta and their analysis by the way is this is this i think you you depend a great deal on california case  is japanese law the record doesn't specifically address that issue but what i would point out is that all of the cases that discuss the firefighters rule say that it rests on principles of assumption of risk and professor taniguchi does state really is the case we that we think is closest to this case i like reserve the rest of my time for an economist court has any questions at this point baton what's important to remember with international community is that the district court's decision to see jurisdiction is wholly discretionary and the ninth circuit can affirm the dish records decision by determining whether not the district court used the correct law and applied the law in a way that was neither illogical implausible or without support from the record support for the record and this case is without question that the district court applied the correct motionlessness this court is a correct law she applied the five factors for muvico and leading her decision it is abundantly clear that she did that she came down with her decision in a way that was neither illogical nor impossible so i want to talk about the support for the record and i want to focus on the key part of the record that supports the dish of course decision both of the time she made it and supports it now and that has as your honour's have referenced is  the lack of any guidance by either the japanese government or the united states government at the district court level and now even before you know statement of interest and no amec is preferred by the american government to we know whether the state general's office and they grilled us on this issue and i think it's their lack of an advocacy brief points to is we now we now have one so now what do we do what we have an extra from from japan ok so what do we do with that good question of the current issue is did they did that this record abuses question this report in have these issues but whether whether this court needs to request one the united states government has had an opportunity to voice its interest with the district court retaining jurisdiction mohican it's abundantly clear that if the district court the interest of the united states government was not to have this case heard in just record who he is a blueprint for how to have the case removed the we know that the state be really unthinkable that they don't know about the brief but even more importantly whether they know about the brief or don't know about the brief what's in the brief when you look at me the concern is about some type of destabilizing force within the relationships of the governments with specifically looking at this argument after after and when he could after you address the five points that need to be addressed the five factors when you go into the and alice of the united states interest and the colombian government interest the focus of that analysis is not just on the statement of interest and the letters from the climbing government but specifically on the fact that those letters reference concern about potential damaging consequences to the relationship between the countries nothing like that is present in the japanese amicably it's also important to remember the concern was essentially about tapping stepping on the toes of another sovereign nation nations court decisions in this case that's not going to be at issue either because liability is not an issue there's no chance i'm looking at the amica spray from the government of japan and i'm looking at a sentence on page three of that brief it says the claims here could it could result in the application of different legal standards disparate outcomes and this could prove highly corrosive to the integrity of the compensation system established by the government of japan ok so that's pretty that's pretty close saying our courts are dealing with us and we end up with the possibility of inconsistent and consistent judgments i don't think so because this is causation and damages only right there is no question of liability and so if there's no question of liability causation damages are necessarily going to be very distinct to the individuals who are raising them if in united states courts or in japanese courts our clients will have to prove that their injuries were caused by radiation exposure so if it would be a different situation if and let's see how the united states would would feel they were standing in the shoes of a government panel suppose that southern california experienced a major earthquake and that santa know for which i know it is in the process of being shut down but that we have leakage from santa no free and a damaged  panamanian flagged commercial vessel off the off the coast of california the united states has provided through the price anderson act for for limited liability and which the united states assumes some liability it also provides but all those lawsuits must be brought in district court in the united states now if somebody on the panamanian freighter went to panamanian courts and then sued the united states under the law of panama it's hard to believe that the united states wouldn't regard that as an question under the treaty under the under the treaty we signed with for example which pan am saying that all that all knew that the nuclear disaster should be should be litigated in in home and home states ok so with respect to the tree that was signed with japan that japan only signed in two thousand and fifteen at the incident they had not signed it that the why does not represent the views of the united states as of two thousand and six well it does but what it represents is a desire for the united states government to limit the liability of nuclear suppliers that is what if you look at the exports of record it says the c s c is designed to limit the liability now facing the united states which we also did in the price anderson act of one thousand fifty seven so what i'm saying is that with respect to the united states interest the interests are in supporting and living liability for the u s suppliers if you're in your analogy in your in your hypothetical you're talking about a japanese panamanian ship bringing  affront to the united states to think that that that that nuclear a nuclear power an american nuclear power plant would have to defend its construction practices and any negligence that may have engaged him in a panamanian court in light of all of the laws and treaties that we haven't acted to you addressed that precisely that issue i don't i don't it wouldn't be an affront to the united states you know since you say this is ok this is a good idea well obviously the united states government wouldn't want it i mean i think that's pretty clear ok but just because you don't think government doesn't want it doesn't mean it's contrary or it's or that would be dispositive in this case because the united states has had an opportunity isn't that what the nature of the comedy is it that we that we want that we want people to that we want to treat other people the way that we expect to be treated that's that that's exactly what we want but what we're looking for is what has the government articulated as their interest and in this case i think we can take their silence were guarding this case this kept the case we can take their silence  an affirmation of the district court's order because that's the status quo when you guys when you when your honour's affirmed the district court's order it goes back to the district court for further proceedings that's the status quo if the united states government way for because of the injuries that i mean would there be anything within the government that would have been affected because of compensation for you know is the short answer and even with respect to getting v a benefits most of them have there's been no compensation and even with respect other than medical care right there has been the well there has a medical care but whether or not the v a has recognized that the injuries for ongoing medical care were related to their service that is a is a  with that one question whether or not the u s has compensated the sailors i like to just introduce some of the sailors who are here who work on the part of the operations of the dodge along with of for most of the john edwards who are supporting seals but no they have not been treated in a very limited manner because many of the doctors can't figure out many of the complexities that these radiation diseases are presenting so it's really beyond the capacity of the v a and it's a large number of  might i mean since we're speculating as to the u s policy interests maybe the u s interest would be to have tepco and i give just compensation to the united states military almost the size of this lawyer from every department in the united states government and they grilled us in all these issues including whether or not the united states government should follow state of interest the fact that the united states government has declined to father statemented interests in spite of their cause request and our detailed discussion with them is an indication that they do not feel that there's any tension between the united states government and the japanese government about what point was this conference though it was a market that means ginger and he's requesting that they come in and come to this argument so they are aware of all the breeze they have briefs this case they're really their silence speaks volumes i like to address very quickly however the issue of the political question would have to show and they failed in this burden they would have to show a completely independent unforeseeable ad that was highly exceptional and that involved some exceptional circumstances in order for there to be a superseding cause that would cut of their liability here and pass it on to the navy they cannot shoulder that burden and more importantly the district court does not need to look at the judgment of the military here are a second amendment complaint have have claimed soley based in negligence and strict liability these young sailors deserve their day in court this is still just at the pleading stage at the complaint stage that we need to go to discovery stage if at that stage they failed their burden i'd like to direct the courts to one last point and that is whether or not the military acted reasonably in paragraph one forty one of our complaint it contains a publication from the navy stating that the navy moved the seventh fleet temporarily reposition that after detecting high radiation in the area and that seventeen crew members were irradiated and they were we know that they position the ship out some fifty nautic miles where they were still taking on radiation and then they went out one hundred nautical miles where they are captain mueller mueller documented the radiation that's thirty times higher than normal and that's in some catalog rhythmic progression so the point is that the military always act reasonably contrary to what tepco would have you believe that some kind of way they were negligent or some kind of way in the district court needs to evaluate the reasonableness of the military's action didn't district court does not need to do that the harris versus care law case says the district court can ask the question of who what when why not why not why don't you get into the military reasoning of the only issues here are causation and damages and says it wants to bring in this issue of super zation which i mean in a way it seems kind of ironic to me because it was the japanese either party no it's not in favor but when you read through it is just a replication of the defense briefs the same issues but these young sailors they feel abandoned by even their government to not standing up behind them in even their doctors who have difficulty diagnosing some of the illnesses they're looking is that excessive bleeding and the cause of the debt now seven of them in a very short time these were very healthy young eighteen one thousand nine hundred euros who of course had to be able to get into the navy and now they are all sick and we ask you to affirm the studios opinion of this district court and allow these young sailors to move swiftly as they did when they were providing humanitarian aid to justice in th good morning your honors and there was paul garner along with my co counsel have the privilege and honor of representing these first responders to win and to give humanitarian aid to the people of japan and this country in our continuing effort sue have peaceful supportive relations the fact that japan has not filed a formal statement of where the executive branch of our government in any way shape or form we met with homeland security we met with attorney general's office we met with the solicitor general's office they're well aware that these cases have been pending now for almost four years we don't have an answer to any component here what the tepco multi billion dollar corporation is asking you  do let's be clear about this is to say that you should become fact finders you should you serve the power of the district court judge who that if we that the cases go forward here it's going to jeopardize its compensation system well let someone say that from our government let someone come forward and say that judge sommer cino you can't adjudicate these cases because it would be disrespectful and would some matter of fact the compensation scheme that this multibillion dollar for profit corporation which was clearly departed from accepted norms in conducting their activities at the time you can we might be back here to see you but at this juncture we have no fa other than the well played complaint the fact that it could possibly this is all supposition by a well crafted defense at an early stage of the litigation now why should these u s citizens be deprived of their right to due process that any other american citizen would be entitled to receive at this juncture i don't think it's a question to profit i believe it is where did you raise that in your brief that it's a matter of due process well i don't i don't know that your honor with all due respect i don't know that it could be interpreted in any other way because their defense is that you're to somehow jeopardize a scheme that has been set up in japan that doesn't have ex post facto effect are you challenging the district court's finding that japan would be a satisfactory alternative i am saying in reality because you could answer my question i think you could answer i don't answer no no ok you're not shot you're not challenging the japan would be so it's not a matter of due process whether gets tried here gets whether it gets tried in japan oh it's a matter it's a matter of international comedy which is a different question international comedy must have a must consider the real world as it exists today now what has been suggested to you that is that these sailors had a question of due process i believe me that we have to consider the role that it is today i believe didn't is are you saying that they can't get adequate compensation in japan well i think it's clear from everybody's perspective here that their system of compensation is it  that shows respect but it this is just i don't understand your argument my argument is is this your honor forgive me for not making it clear you were in a position now where the wrong has said that you should have a time out here that you should have all this considered under a framework that existed in japan where the existence of man which doesn't really  comport with the law that the district court would apply to these cases and we don't have here a knee jerk reaction by judge sam or to you know this is really the fourth bite at the apple that they've had the only reason we're best to apply the rule of law as it exists in this circuit so why at this stage of the proceedings would we waste valuable time and  not preserve the status quo we we owe it to these people to do our best because justice delayed is justice denied we have we know that it's an ongoing situation with these people that they're not going to get better unless there's intervention i submit your honor that that's the reason that we have laws in this country that's the reason we have due process in this country is to give everyone an opportunity to be heard they're not being heard over japanese i don't see how they can do that your honor edge think that's that's a stretch it's a supposition and see here's the thing if our government wants to put insurance into effect a supplementary compensation scheme the way it's written the way it's written is you have to disclose where your reactors are and you have to pay into the system and you can't do it retrospectively as as much time as you're taking i'm going to feel which was especially created and it in august of two thousand and eleven that would qualify as an agency or instrumentality of the japanese it was created after the other side after whom the now down correct it was created by special legislation so  owns majority of tepco shares and it also provides through special compensation funds it provides the cash that has been used for the compensation that's been provided thus far now it's it is true and it was stated in the record that there had not been any claims made was the declaration that we submitted for physical injuries in japan and we explained in a footnote in our brief why you would not be surprised that there were not a large number of physical injury claims in japan and that's because of the the the way in which the radiation release occurred in this case this has been looked at and we cited the international agency reports that have examined this issue and also because of the success of the evacuation that was put in very quickly most of the damages that have been  paid and allege have arisen from the evacuation itself i would know it's not in the record but i would note that there is one pending lawsuit now for and radiation exposure injury that is in japan and professor right in the statute the act on compensation for nuclear damage broadly defines damage clearly includes physical injury of it's caused by exposure even you say physical injuries that include pain and suffering it would also include pain and suffering that's also set forth in professor taniguchi declaration with respect to the positions of the united states in japan you know the as g s office refers to unbidden amicus briefs which are breached not requested by the court there's a lot of reasons why they decline to file an unbidden brief in a private litigation i have no doubt that if this court were to ask them for their views they would give the court the courtesy and idea or was not a good idea or that even though they had opposition because sometimes you get an essay why the that says we take no position on us as as counsel has indicated both sides met with a large number of people they decided not to file and suit or something says we take no position then the court under the standards in media has to make its own independent judgment of how to assess the input that it's received for the limit but when an s ally of that nature in this case if the court has doubts about the content of u s power policy if the court has doubts about how it should assess the impact on foreign relations of the strong brief that was filed by the japanese government of the court once additional  about what medication was made by the japanese government to the state department as in we indicated in the transcript of excerpts of record one forty that such communication was made to the court can just simply asked the government of japan ha conveyed its objections to the state department a state statement of its interests was communicated to the state department that said excerpts of record one forty we relayed that at the hearing on and do we know the nature of that the this statement is not in the record at all so we don't have the details so we don't know whether the government of japan says we strenuously object or we somewhat object or we don't object or what we know what they said in the biggest rep didn't take effect in two thousand and fifteen the u s ratification was in two thousand and six so at that point it was the official policy of the united states from that point forward to the district court also did not make any finding that anyone  japan had been treated unfairly in the claims system and i don't think that there really is a record for that assertion in this case with respect to the political question issue the proximate cause issue is intrinsic in the case because of the irreducible allegations the fact that they were alleged to have been brought to the area when it was knowingly with radiation exposure when they had detection equipment but and the allegation is that they were placed two miles from the coast in such an intense syria of radiation despite the detection equipment that they suffered injuries hundreds of people suffered injuries within two years of hundred miles away that's what the allegation is correct that's the allegation but they also allege that they were placed two miles off the coast into an area of such intense radiation exposure that it's produced this level of injury for this many people so quickly and it's that combination the fact that they were not in the area were brought into the area by the military and placed in that situation that intrinsically and inescapably and inextricably raises the issue of the reasonable us of the navy's decision making which is why it's not just issue bill and then finally with respect to the issue of the firefighters were on assumption of risk all the cases make clear that they're not talking about assumption of risk in the sense that the individual police officer firefighter military of is personally assuming the risk the idea is that the government has assumed the risk on behalf of these and the government therefore has the can common and responsibility to provide the compensation if it sends people into harm's way you know that purposely and knowing of the levels of risk it should be expected to provide that compensation that's the rationale behind the rule unless a court has any further questions than the incident you have the thank you