was part of petra brosnan's deep water oil and gas facility to develop minerals on the outer continental shelf that failure resulted in hundreds of millions of dollars in damages and there's no dispute that the rock was permanently attached to the seabed and was part of a operation to develop minerals on the outer continental shelf now with those facts it's quite clear that oxygen is stiction is present because this is an ox the scientists we've got a facility that has been permanently affixed to the scene with the purpose of developing oil and gas and the activity out of which the loss of rose was in fact the construction or putting into production of that the silt it's a very clear case frocks the jurisdiction is just as clear that adult it doesn't apply because clear to you when you correct but look we're talking about i guess the issue of waiver or the conduct of the lawyer in that happen at the trial court level of and there are two  around it we tried to think that we also tried to mend our pleadings to say listen there is still this issue of oxalis it's not before the court at this stage but the magistrate has recommended to the judge judge wonder around the acts on issues that shouldn't even be litigated here but i don't agree that these are issues that this is need to be decided well i understand that but you were representing the plaintiffs and if you would come into federal court stiction it's under thirteen thirty two a two and because it's a device permanently attached to the seabed therefore louisiana law applies therefore we have a negligence claim that would have been real simple it would have been real simple all right but we're talking about a case in filing very early we filed before the one year prescriptive period under the wheezy on a walk could have applied and we're trying to develop these things don't just happen offshore and then it becomes apparent to everybody would has happened there in a mile and a half of water there is some discovery that is required in order to file things and get think that says sometimes counsel have to say look we're pleading this in the alternative were filing cigarette that was basically confessed earlier by the can are known early on by the parties but but it's not quite as simple when you're dealing with the facility that's a mile and a half of the ocean to just say here's with get it it's is in here is out this is going to go at it one year it does creep up on you pretty quickly so we planted the alternative and there would have discrete motion on the economic law school this raised we responded to that motion subsequently we started to try to back so i'm assuming it had to be after you filed this appeal because you were doing going through the motions i don't understand why the magistrate didn't withhold ruling on the amended complaint pending appeal but i don't know i don't know why they ultimately the waiver question is at least in my mind is the big question i don't find your jurisdiction argument the rest of the arguments are very persuasive but to the extent that you're arguing that the choice of law question is something that we just can't avoid it you can't agree by contract that what the choice of law will be and in an  climb and that therefore because you can agree it's great that you can't waive so the question before us it seems to me at least on that issue is can you waving and when you  you bring it up for the first time after you appeal and in those cases in which this court has indicated that you can agree to a choice of situation that you can't enforce that any kind of an agreement were any of those cases where we announced that law cases in which that argument was brought for the first time on appeal it's quite clear if you look at the p l t engineering case the argument was made the choice of law is not mandatory it's only the jurisdiction it's mandatory and that choice of law can beat way p l t engineering considering that points that is beyond any doubt jurisdiction by any action we can't waive or agree if you can't agree to to get out of you can't agree to choose to be opt out of a congressional mandated   the court should rule the ox flow provides an exclusive subject matter jurisdiction in this case these facts don't support adult teachers to action they do support oxen jurisdiction when you look at the and there's no other federal law that has the political and consistent with louisiana law on the point so the result has to be on a jurisdictional and mandatory choice of law provision to be construed and read in the light of another contract the purchase order for the defective tether chain between vicinity as the seller and technique as the bar if you read those two  one a half miles above the surface the product is the deceptive chain this kick this case as the district judge ruled is far far far afield from his river which begat this entire economic loss doctrine if you look if you look at the p c i contract here they did contractor technique is not even a manufacturer yet outsourced the manufacturing of each element of the riser system and there weren't there weren't many elements to the system to begin with the district court listed ten and so what i just can't get you sent technique is not parties also had a lot of the parts to get them exactly right and that's what it did and here we have a system that both from seabed to the to the surface whether you have ten elements as a district judge found whether you have twenty one elements which is what the evidence shows is just one product after another linked together success that in sequence successively to come up with what at the end of the day it is a system the freestanding building contract is not analogous to the type of a p c i contract that we have in this case it's particularly not analogous to the p c i contract which as we say is just assembling component parts produced by a dozen or so different manufacturers it's not analogous when you look at the sub contract the purchase order between technique and this in a way because there you see exactly what you would expect to see in a product manufacturers there's a lot that could be said in this case but let me see if i can go to exactly what i think is pretty clearly on the court's mind and that is the real question in front of you is whether choice of law can be wayne that's what's bothering the court and we think it's absolutely clear that it can your best case for that the best case your honors the fact that constitutional rights can be waived think about it just for just a second waiver is what makes our system of justice work a litigant is i of action the difference i think your honor is the fact that oxalis subject matter jurisdiction is here we've never contested that the issue on choice of law however was never presented to the district court as a result of the deliberate decision of the appellant's that are here before you and it can be waived we believe by the deliberate refusal to raise at the point because think of the issues that are right wave of the sovereign immunity is it one way well with greatest respect the implied case that was presented to the judge the judge did make a ruling the ruling that's not what happened here that's not at all what happened was pled because litigants are the masters of their own case they have the right to decide what claims to bring what claims to drop it happens all the time every day and in fact if it were otherwise then this court would be imposing a rule that the district court would have an obligation to ask every single party any time there was a case what other matters are not presented in this motion  a maritime wall irrespective of connection and location connection and location are clearly met they told the court it was maritime two words we agree they told the court it substantive law of the adjacent state is to apply even in the presence of a choice of law provision in the contract to the contrary now as judge benevides that fully put it if you can't do it purposely how can you do it by accident because they stipulated and pled both abol they pled both and there are cases as we all know where that's a real close question i have doubts whether it's a close question i have grave doubts that it's a close question here about what i mean p l t doesn't state the law of the fifth circuit the language is clearly the language around and there's no doubt about that but i must say to really believe we're in a situation where if you if you look at this situation their argument swallows everything they would say that every case where octo sitas is found where it was a fixed platform which is the consistent rule that runs through the circuits jurisprudence excludes adamantly law pleading off the jurisdiction is not the same thing as pleading louisiana towards it's not the same thing as remaining silent negli they played all sorts of torts did they not they spy pled maritime takes no doubt in towards or towards negligence gross negligence you know that sort of jurisdiction in specific is they characterized all of those your honor as maritime tours that's their words well nevertheless i mean thirteen thirty two eight two applies to  civil and criminal laws of each adjacent state applies to fix structures or wrecked it on the outer continental shelf correct fixed structures a wreck did this is a floating structure its only flaw it's about as fixed as it can be and it is not a vessel with the greatest respect your honor i think if you'll allow me what you have is on the seabed which is a mile and a half below looked at that i looked at the charts i know exactly what it looks like if you want me to reconfirm what it looks like i'll tell you but i do not understand why don't you move on to explain how it could possibly be admiralty law if that's your position because it involves the use of vessels on a navigable waterway in connection with the traditional maritime activity what is your best case for saying that this f h s r which to my knowledge i think is a pretty case with these facts and circumstances which is what i was trying to say about the difference if you looked at it just briefly you would say that ok seabed floor installation vessels floating shuttle tankers traditionally moving or oil costs or rather than pipelines traditional maritime activity the court has never made a distinction on which applause under those circumstances and i'm saying that maritime law applies of its own force because the two prong test is met because of location and the connection to traditional maritime activity that's my point zero or about the argument that it is not  never said that your honor well doesn't make sense no no your honor because the question under the test is the ability to affect maritime foamers well like where has the supreme court said that the i mean every time the supreme court has had these cases and i could certainly be corrected but it had to do with different kinds of vessels things and how much motive power did the vessels have and to me this is a fix trucks or on the outer continental shelf because the whole purpose of that buoy was to suspend the riser moralists in place the riser is connected to vessels more like a pile of course but it's more like up and down that's it's touted benefit is part of the f p s of system while the vessels sail away but the key is what and when the supreme court in their cases looked to what was the principle object of the activities in here it's shuffling of oil through vessels to shore that's where the oil goes that's the object of the exercise that's what makes the whole thing work and a buoy is what makes that process possible and  maritime application all right but if you're on the principle point i think is the one that was raised in questions to the appellants earlier on and that is why is this case here we would say that they have waived all of their positions they waived their rule sixteen good cause argument they have banded in between the magistrate in the district court they did not preserve it it's not hand same thing with respect to the way in which they waived their choice of law argument it's not here this should be a procurer him decision dismissing the appeal the fact that a manufacturer or in the symbol or none of that has mattered what has always mattered to this circuit was the legal test that is conducted on what was the object of the contract what was being purchased of that could be addressed through the contractual warranty system here there is no doubt from their own pleadings as well as the contract that the district court got it right the object of the contract was the purchase of the f a s h r system that's what was purchased by petro bras from technique your argument to them i'm sorry i'm pushing you back again that whole underground system which probably spans a mile every product is composed of multiples smaller products in the symbol that's why it's always been a legal test not a factual test not an expert test in this circuit about what was the object of the contract because it deals with whether or not warranties could deal with the allocation of risk of loss that's the whole point behind the economic loss doctrine and here they bargained for and were able to receive contractual warranties  this court and others have made very clear that's where this belongs not in the tort system this is a clear application of the east river line of cases nobody is depriving them of the remedy they just they chose to not facts there is no doubt your honor that that is true but we think we've played the hand as swell as we could play the hand well let me ask you  radio offshore do not stand for the proposition that you can revive dismissed claims based on choice of washington's that were never first presented to the district court the economic law school was properly applied ability to decide as the master of its case what to bring up and what not to bring up you know you you making such a grand argument and i do not understand why you keep fixating on that no waiver point in light obvious that even under thirteen thirty two eight to thirteen thirty money to whichever than admiralty law applies here rather than louisiana law right because i thought we'd already covered that you i thought we were covering irrelevant i would agree with that and that and so that's to that was my point is that the admiralty jurisdiction clearly exists both parties briefed this to the district judge under admiralty law no one said anything differently about it let me ask their there was a subsidy development that riser judge jolly noted it stops at six hundred fifty feet more than that below the navigable waters there's a reason for that because they don't want to even have a potential to be a ha bottle just one just one point iran mr baker said the object of the cut of the contract the p c i contract was a f s h of system it was actually all five systems that was what was  process was buying that is what technique is providing those five riser systems do not constitute a single product for each river purposes you have to look at the elements of each of the systems you have to look at those elements within the confines of the nature of the e p c i contract viewed in the context of the purchase order and if you do that we suggest a court cannot conclude that all five riser systems comprise