yes your honor as you mentioned heather cook may please the court for a western challenge and i will try to reserve three minutes for rebuttal and this case is on appeal from two summary judgment orders and we're asking the court to reverse based on the lower court's failure to observe the summary judgment standard the lower court also refused to consider western challengers negligence claim and were asking that the court find that negligent was sufficient negligence was sufficiently  pled to merit consideration now of course summary judgment is all about the court's view of the nonmoving parties fact so let's let's look at the narrative that arises from western challengers facts we have mr moran mr franklin the members of western challenger l l c who are looking to buy a fish tender they find a vessel in canada and they want to bring it back to the united states and there are number of requirements for that they first consult with  documentation expert mr kim of cameroon documentation he tells them that they should be sure that the vessel has not been rebuilt in the foreign country in canada and that it measure under two hundred gross tons i t c they next consult he has information about the vessel he's consulted with previous potential purchasers and has looked into the i t c issue and he is aware through through based on the e mails that we have that  you see could be a stumbling block for this vessel he does not mention this he never discloses this to mr moran or mr franklin they know nothing about it now they buy the vessel and  eventually they contract with classification society through a mr essex at more some consulting who's the agent of the society and he produces a tonne a certificate for them which includes a  of certificate they don't say oh gosh that's terrible we never made any representations to you i t c is very difficult to change you've got some thinking to do they don't say that they say hold on we'll fix it and their idea for fixing it is that they should say that the house the superstructure of the vessel has been removed which will reduce the i t c tonnage to under two hundred to one hundred ninety one i t c mr  moran goes away thinks about this and comes back and says we can't light of the coast guard mr moran knows that nothing has ever been done to the superstructure of this vessel don't lie to the coast guard he says lo and behold mr essex issues th search for documentation through the coast guard and you know he doesn't have a lot of options he's got a boat that may have some value but he knows now that it's not going to qualify and he's got a fraudulent certificate for it can he sell it very hard to say he does he can't he can't go forward and make his application for documentation so you know he's sort of in limbo at this point now  tonnage of two hundred twenty seven well so at least mr moran knows you know he's got to deal with this coastwise issue there may be other issues between the certificate which we can get to but at this point he knows he needs to apply for legislative relief this is his only option congress has to tell him that he can have the coastwise indorsement and he does so once he has his legislative relief he can make application and mr kim makes application to the coast guard and the coast guard rejects his application now mr kim tells us that it is the coast guard's normal practice to accept the canadian registry entry for a vessel as proof of foreign rebuild or no foreign rebuild in this case and if you look at the at the canadian registry it's a fifty nine to sixty one there is a section that says vessel rebuilt and there's no entry there this is the implication here is that the vessel has not been rebuilt foreign and yet the coast guard will not you know won't give them the endorsement and they tell us why the coast guard sends a letter to transactions considered in initial documentation when we had to confirm that the alterations to the vessel in two thousand and thirteen do not prohibit the vessel from being eligible for a fishery endorsement now fisher endorsement this is foreign rebuild this is the concern and that's what the coast guard is telling us now what is it that has knocked them off of their normal practice well it's the tonnage certificate the tonnage certificate says that the vessel was certainly done nothing to affect the i t c and you know that the the tonnage certificates reflect other changes which would implicate i t c this is simply not the case mr moran gives the coast guard a statement of no foreign rebuild he says i'm the owner i haven't made these kind of changes to the vessel and you know that is that the end of it well i guard policy measurement organizations certify substantial alteration dates based on information mission reported by the owners here's the owner reporting information but the coast guard is still not accepting it now i think we can make a pretty good inference as to why that is the coast guard has in front of them the first well actually the second the second june tenth certificate that was issued the t one hundred ninety one i t c and they have in front of them the august certificate stating two hundred twenty seven i t c and they have a statement from the owner of the vessel saying there have been no mr moran has contracted for a tonnage certificate write a single tonnage or ticket and as soon as the multiple tonnage certificates the second tonnage certificate is is issued that's a breach of contract and you can see why you don't want more than one hundred certificate it's not what he contracted for and there's also the when the when the second tendered certificate was issued they said the house was open right and one of the things that is in the contract is the obligation to do a confirmatory survey now if you're going to go beyond and issue multiple con tonnage certificates then i would think that you would need to also do the surveys that go with it if mr essex believed that the house was missing from the vessel when that second tonnage certificate was issued then he was under an obligation under the contract to confirm in august that that house had been replaced nothing of that occurred mr seymour tells us that june second was the last day that he visited the vessel and so those those are both of those instances are breaches of contract which led directly to the situation that western challenger is in now now i'd like to address the the negligence issue if i may and in the if a footnote to his second order the judge explained that he didn't want to consider negligence because the second amendment complaint didn't articulate sufficient facts and none of the previous motions or pleadings had addressed it sufficiently now i would direct the court to you know when eighty seven  the second amended complaint paragraph eighteen and i quote the defendants failed to exercise reasonable care in advice thing plaintive and assessing the vessel in addition defendants failed to exercise reasonable care in gathering information as the modifications to the vessel and in submitting accurate documentation to the coast guard i would also point out that the majority of the filings that the plaintiff has made have is no claim from negligent misrepresentation but i'm what i am saying is that there's also a claim for negligence in making these representations on the on the tenant certificates in not following the  coast guard requirements for issuing the certificates these are these are negligence claims in addition to the negligent misrepresentation claims and just to finish my thought on the on the the the issue of responsive pleadings responsive pleadings are just that you're finding to the attacks that the opposing counsel has made now there was no there was no  effort to hide the ball here when we got the second the second summary judgment motion and it looked like opposing counsel thought they were disposing of all of all remaining issues we raised this issue said hey you know there's a negligence claim here that hasn't been addressed yet and of course that's the point that the that the judge decided not to hear it but we didn't wait until after summary judgment we weren't there was it's not that there was nothing in the but he has indicated that he's going to rest on jails arguments today i'd like to start by putting this case in context the western challenger is a world war two wouldn't hold minesweeper that was built during the roosevelt administration it left for canada during the truman administration and is now seeking to come back as a fish tendering vessel the crux of the issue today is that no one knows when or where the vessel was converted from a mine sweeper to a tender in  tender is generally speaking and i'm not sure what exactly the western charge or had in mind for this particular vessel but generally what your honor described is what it fish tender does it shuttles the fish from the fishing vessels to a processor processor is  different type of us ok thank you but the law here is clear if a vessel has undergone a foreign rebuild under the regulations it's not eligible for any of the commercial endorsements to which i'm referring to the coastwise and the fishery endorsement the n p c in this case has refused to issue the fishery endorsement because it can't determine whether the conversion from a minesweeper to a fish tendering vessel constituted a prohibited foreign rebuild that's all undisputed it's similarly undisputed that this vessel has undergone alterations both in two thousand and thirteen when western challenger brought that asshole to anacortes and instituted some deep frames in the in the superstructure which are intended to reduce the regulatory tonnage and more importantly when it was converted and this conversion for the record is not some subtle change to the under deck equipment there are visible changes to the superstructure and you can see when you compare the photos on page two of our answering brief what this vessel looked like as built and what it looks like today it's a different boat in two thousand and sixteen three years after g l issued its final undergone altered alterations including an extension of the fo'c'sle in addition of a deck ouse dechen over of a minesweeping reel and converted cargo spaces in the tonnage divisions conclusions are at supplemental excerpts of record one seventeen the photographs and our opening brief and or excuse me in our answer in brief and the tonnage divisions conclusions highlight the absurdity of western challengers assertion that the n b d c would not have noticed that this  l had been altered it would have been a dereliction of the n p t sees regulatory obligations to deny an inquiry into a foreign rebuild on these facts and we would submit the plaintiff's can't survive summary judgment based on implausible speculation about what triggered this inquiry when the n b c has a disputable e a regulatory obligation to make a foreign rebuild inquiry now western challenger does a really nice job of trying to make this case about the tonnage certificates and the tonnage oversight findings but that's not material to decide in this case because the issue here is a documentation issue not a tonnage issue g l certificates didn't change anything western challenger's damages were solidified in april of two thousand and thirteen when it purchased a vessel that had been converted without doing any due diligence into its rebuild history and that was despite mr kim's express warnings otherwise this foreign rebuild issue is like a sleeping dragon that existed before plaintiffs purchased the vessel and only mr kim knew about it because it it's a documentation issue and he tried to warn western challenge he told mr moran make sure this vessel hasn't been rebuilt and mr moran didn't do that and the planes had no other conversations with anybody about a rebuild the dragon awoke when they applied for the fishery endorsement for the first time in october of and fourteen more than a year after g l had issued its certificates and the n b c is indisputable denying that endorsement today because western challenger lacks evidence about this prior conversion mr kim has submitted a declaration or i should say western challenger submitted a declaration signed by mr kim to judge cohen our in the district court below which stated that the n b c had initially refused to issue the coastwise endorsement because of conflicting i t c numbers in the certificates mr ken later admitted in his deposition that that was not true it never happened that's supplemental excerpts of record twenty seven to thirty western challenger never applied to the n b c four coastwise endorsement because it needed to seek a legislative exemption because the vessel was indisputably over two hundred i t c it's worth noting that this is not a case where g l incorrectly noted that a vessel had measured over two hundred i t c where the vessel is actually under two hundred in that case if the n b c had declined issue of why did indorsement would have a problem but here there is no dispute the vessel is over two hundred they were going to need a legislative exemption for the coastwise endorsement regardless of what g l certificate said the real issue here is the foreign rebuild issue and it's purely a documentation issue there are no t thresholds with respect to the rebuild issue from rebuilds are made by the n b d c under forty six c f r sixty seven point one seven seven based on an assessment of the vessels steel and the same problem arises with respect to western challengers argument about the inclusion of the two hundred thirteen date as the date of alteration for this vessel it conflates tonnage with documentation the two thousand and thirteen date first of all is accurate under the tonnage definition of alteration which includes any change of five percent of more to either the i t c or regulatory tonnage and there's no dispute that this vessel made alterations to it regulatory tonnage in two thousand and thirteen that number's accurate but ultimately it doesn't matter whether the deep framing in tonnage opening is qualified as a substantial alteration as on the tonnage certificates because the issue and plaintiff testified in his deposition is that the n b d c is only interested in this prior conversion so the two thousand and thirteen alterations are not what the n v d c is after it's after evidence that western challenger doesn't have to rule out a foreign rebuild the key point here is that there's no dispute this vessel has undergone an alteration it was converted the n p c has an obligation to determine whether that that conversion was prohibited for a rebuild there would be exceptions in the regs to the fore rebuild we know there are no exceptions the only avenue around that is a legislative exemption and the four and around the legislative you can get it legislative exemption so you can get an act passed in congress which is what the western challenger needed to do with the coastwise endorsement and i'm sure they would have included the fisheries indorsement if they had known at that point about this conversion issue but they didn't and so i understand they're pursuing that legislative relief now but that's the only avenue around it  now this case really boils down to how can plaintiffs connect these issues which they allege exist with a ton of certificates with its documentation problem so it comes down to an argument that these tonnage certificates somehow tipped off the n b c to do its job which is to investigate and rule out foreign rebuilds and to get there they rely on a very generalized statement by mr kim that in his experience the n b c would normally rely on the absence of a notation ever rebuild in the canadian registry but that doesn't create a genuine issue of material fact as to causation in this case putting aside the credibility issues with mr kim stock aeration that they're relying on given his admission that he didn't read it closely and that at least two of the statements in it are inaccurate the statement is not material or genuine first it's not evidence of what the n b c did in this case it may be very true that in mr kim's experience a fishing vessel that has left the u s registry gone to canada and is seeking to come back as a fishing vessel in that case the n b c would rely on the canadian registry statement that there have been no alterations but mr kim's declaration says nothing about the unusual circumstances in this case where you have a seventy year old military vessel that left the u s registry and is seeking to come back as a fish  fact at supplemental of excerpts of record three mr kim testifies he's never dealt with a situation like this before and second their argument would require this court to assume that the n b d c otherwise wouldn't have noticed this rebuil issue and would have abdicated in its duties to investigate the summary judgment standard requires the plaintiff comes forward with evidence on which a trier of fact could reasonably conclude in either party's favor that's what makes the dispute genuine and plaintive can survive summary judgment based on rank speculation that the coast guard wouldn't have done its job that's not plausible argument and it's important to keep in mind here that western challenger isn't arguing that the n v d c shouldn't inquiring into the foreign rebuild issue here they're arguing that they may have gotten away with it if alterations weren't noted in our certificates and in this regard in their opening brief council discusses a fourth that they obtained after g l issued its final certificate they went out to a different classification society the american bureau of shipping a b s and a b s issued its own certificate for this vessel and that assigned only  at didn't assign a regular torrie number and as a result included no remarks about the alterations that were done in accordance in two thousand and thirteen and it didn't include an alteration date and mr kim provided this certificate to the tonnage division and said look here this vessel hasn't been altered look a b s is certificate says no alterations and the result of that again which is that supplemental excerpts of record one sixteen is that the tonnage division came back and directed a b s to include a note on it certificate that this vessel has undergone gone alterations affecting tonnage the timeline is key to deciding this case which explains why western challenger prevents presents the facts in such a jumbled manner because when you spend the time to put the facts in the proper order the inevitable conclusion is that western challengers claims against that yellow defendants fail they were the tonnage guys mr kim was the documentation expert western challenger had no contact with g l until nearly two months after it purchased this vessel none of the defendants ever made any promises with respect to the vessel obtaining a fishery endorsement which has no relevant timed tonnage parameters reader second a minute a complaint it's not entirely clear whether they're alleging negligent misrepresentation or negligence or both when we've we've conceded in our to the merits of the negligent misrepresentation cl that's how the parties proceeded in the court below as though they had presented just a negligent misrepresentation claim and it wasn't until after the close of discovery and after the deadline to amend had passed that they raised this negligence claim is wh you can reasonably read the complaint is alleging and that which is cool and even if you need it i don't think it needs an amendment even if you do the claim is futile because because they're looking to it's based on the same facts and and it and it succeeds or fails on the same causation of damages argument they're talking about the city if it hits and they can't show that the certificates in this case are defendants conduct caused the damages that they're seeking and that's the problem they have so whether they played it or not maybe they did maybe that the that would be predicated on well that's a great question obviously that they have pled negligent misrepresentation claim which is one form of negligence the other duties that they have alleged in the complaint and the second a minute complaint arise strictly out of contract and so we've submitted that this would be barred by the independent duty doctrine because in order to  to present a separate neglect gens claim aside from the negligent misrepresentation claim they've got to come out with a duty outside of contract otherwise they're going to fail for the independent duty doctrine so unless the court has any further questions i'm just started out as a minesweeper and it ended up as a fish tender now i would remind the court that as far as foreign rebuild rule it's not an absolute rule there's the rule is if the change was seven point five percent or less of the vessel weight the vessel is not considered rebuilt in the foreign country and in fact the coast guard has discretion to go up to ten percent to find that that vessel has not been rebuilt foreign so just looking at the vessel particularly with these kind of yes your honor but within the coastguards requirements if it's the coast guard's practice to accept the canadian registry then that's then then that is what the what the would be expected of the owner and it's not it's not you know we characterizing it as some sort of you know dereliction of duty to accept this if you consider this particular vessel the vessel was built in finished in one thousand nine hundred to serve throughout the war it shows up in the canadian registry in one nine hundred fifty one and stays there until twenty thirteen with that notation of no alteration so you know we have maybe nine hundred forty eight to nine hundred fifty one the vessels in the united states was it altered in the united states well there's a good chance that it was especially considering the other the other evidence that we have and the evidence that we have states says that the vessel wasn't altered and typically this is what the coast guard accepts whether  geo group thinks that that's the appropriate process or not that is that is the evidence that we have that's what the coast guard does accept and just quickly on the credibility of mr kim credibility issues are just that credibility issues that can be decided by the by the trial court on the issue that we are relying on here without the canadian registry he's certainly never wavered on that issue and i  i also want to make sure that i point out that the the coast guard makes clear that they were looking at two thousand and thirteen alterations and that it was based on these tonnage certificates that they were asking these questions and there were so many problems with this tonnage certificate that the coast guard investigated right there was actually an investigation that the tonnage division at the u s coast guard undertook and the the issues with foreign rebuild this is what caused them to go farther back than twenty thirteen prior to that nobody was looking at it because they didn't need to they already had the evidence that they that they wanted as far as foreign rebuild of course when you start