the claim and denied any measure of justice to miss table who was a passenger on board this year water schooner for a paid sightseeing excursion in and around new york harbor she sat where she was told to be seated by the by a crew member through no fault of her own was violently struck in the head by a metal clip which one of their deck hands was attempting to attach to the fore stay still when he inexplicably lost control of it and dropped it at the time his table was a mother of two she was pursuing a master's degree in secondary education and had just actually gotten engaged the night before on the top of the empire state building that's not really highlighted with i understand your honor but she she is now employed and on social and that the reason for which the district court did not apply the doctrine is because the the court felt that this it was only applicable to instance that could occur only because of someone's negligence and this is not and has never been the standard for application of the race to pull up under doctrine either by this court or new york's court of appeals the standard and the application of the doctrine is warranted in the event that whether the internet is of a kind which ordinarily does not occur in the absence of someone's negligence to court went ahead after that and said well this kind of thing can happen without negligence correct or not applying the doctrine which was not the standard which is not and has never been this i'm not even sure why there was which is under tension because it stretched out towards the end of the foresail and if one lets go of it it's going to swing and it's pulling on you with the force of gravity the seaman's duty is to hold it secure and not let this dangerous thing swing and if the seaman i mean it's like if waiter has the obligation to carry a great big birthday cake to the table and the waiter drops it on the floor that's negligence not as dangerous negligence as if the seaman lets the thing go i just don't see where the problem is and in this case i mean here's a seaman whose job was hold this thing there's no explanation other than negligence nothing was offered no no waves no sudden anything of the fact that these things can happen at sea i just don't see what that has to do with it no one said any of them did and your honor is one hundred percent correct mr big one way or the other i'm not suggesting that's the end of the matter but what are you supposed to do with the finding after the trial that he was careful well his testimony that he was careful i think is certainly belied by the understanding of the record is correct he did not say that he handled the line carefully he said it's my habit to handle it carefully he didn't he didn't allude to this nor did he nor did he say that the line was fouled he said the only reason why you would only clip it from the fork is for sale is for stay so is if the lines fell but he didn't say that the lighting was foul he said nothing in explanation of any of these things that would be conclusion as a matter of fact because there was no evidence the evidence in the case belies his any conclusion that he was handling the line carefully he had no explanation there is no evidence that any type of rogue wave wind wind caused mr begins to lose control of the line attached to the for statement to the clip attached to the how your line was was that there might have been right there might have been it's what water's correct it's it is a supposition by the district court that because he might there might have been a wind or a wave or awake that that's the reason for which he lost control of the line but there's no evidence to that effect it's an is it is an assumption calculation here there was testimony that you know waves wind other things can create hazards there was also testimony that this particular day was as i understand it a nice day so you've got the possibility that certain factors can contribute to an accident other than negligence whose whose burden is inst that those with the conditions of the day if it's possible but you know no one's testifying to it how does that fit into the ordinarily an accident happens does one just one start by considering the conditions of the day i mean if it were a terribly blustery stormy get a you would start with that and then decide how does an accident ordinarily happen in those circumstances here the circumstances were that it was the weather was good that day you were to show what the conditions are and now then let's talk about what award what ordinarily cause an accident in those days i think would be i think if to escape the a finding or conclusion of negligence it would be upon the shoe wondered to come forward and say hold on this wasn't due to because of his absence of care this was due to maritime conditions and then come forward with some evidence to show that any such maritime conditions caused or contributed to the incident that there was some external force that caused mr begins to lose control of the law and make sure the maritime it could be except mr big and no no one on behalf of the shearwater ever testified that any such conditions contributed to him losing to him dropping the line or losing control of the pelican clip the only evidence is that he dropped it because he was careless and negligent and the court can look at photographs of new york or new york harbor on the date of this incident they showed a picture perfect day for sailing with little to no waves or wakes them in the harbor it stands in stark contrast to the types of cases in which courts have not applied wave that comes and knocks the boat you know knocks the boat over that's not what happened in this case there's no way he they had no explanation as to why he lost control of the mine and in the absence of any type of explanation whatsoever the inescapable conclusion is that he dropped it because he was negligent because he was careless because he's like the waiter in the restaurant who who drops the tray of food i would just also add that the reason for which you know that these types of things do not ordinarily happen find support in the shoe war zone deck hand manual in their manual you know they talk about how that that you know if you don't handle if you handle lines recklessly or carelessly that can cause injury to someone but it that if you follow commands all of your all of these cells will be safe and enjoyable not that some of them will be safe and enjoyable all of them will be safe thomas burton who is the owner of the shearwater testified how of the eighty thousand people who have sailed on board this vessel you know members of the public and families no one has ever gotten hit in the head by a crew member who dropped a pelican clip this is not an ordinary event this is an extraordinary event occasioned by the crew members inescapable negligence i would just add that the other reason that the court gave for not applying this and if one releases it from the force they still so that it's just hanging fruit it is a potentially dangerous force it is and it's and it's pulling on you because gravity pulls  underway to prevent this very type of incident from occurring but you know that the supreme court in the johnson case not only talked about how the mere fact of dropping something you know is you can infer negligence from that but also stated that no act need to be explicable soley in terms of negligence for this doctrine to apply which is exactly what the district court did and an occurrence does not have to be explained soley by reason of negligence in order for at the end at the end of the day the district court because you don't know exactly how it happened or know your client did see it correct no one knows exactly why this happened so we know that since you're using re sips at that ordinarily it wouldn't to this is the type of event that does not ordinarily happen in the absence of someone's negligence and certainly when the explanation is so lacking really the the only finding i think that the district court could have made is one of negligence already highlighted that it's whether or not the court erred on applying recip so there's no appeal on findings of fact by the court there's so with the court's decision based on the facts that she found that mr biggins exercised reasonable critic care that finding is not on appeal the only pill that before the court relates to whether or not it was error for the court would be real nice for you is whether or not the court the court should have applied recip saw you know if a let's say a pilot lands a plane instead of landing on the runway he lands the plane on a house short of the runway and the pilot testifies for i always fly planes carefully careful is my middle name who wins well really  somebody comes up and says oh you know things can happen when you fly planes like the pilot can one thing happen pilot can have a stroke and but or or there can suddenly be be fantastic drafts of winds that can suck a plane down so that they land so they hit the ground a lot of things can happen well it all depends on who has the burden of proof or negligence or does well the plaintiff has the burden of proof of proving negligence and the point of proved that the pilot who was supposed to land on the runway instead landed on a house that means that the if the pilot has to the plaintiff has to get the pilot to say oh it was all my fault in order to win that case the pilot could that the airline can win or the the seaman was holding heavy line stretched out to the front so that if he didn't bleed if he let it go it was going to swing and there was expert testimony that that would be real dangerous and it is obviously you don't need expert testimony to prove that this is to be like i'm fierce if you if you don't hold a heavy line unit stretched out forward from that go with it it's going to swing and it's hard to hold it because it's heavy and it wants to go that way the expert also discussed the duty of care that you cannot eliminate all swinging and flying hazards you can only minimize them that was the cause of possible conditions none of which there was any evidence was present on that to kill your dad i mean that's that's my concern about it when you assess whether ordinarily an accident would be attributable to neck which and so you consider circumstances of that day i mean am i right there's no evidence that there were wins or waves or heavy traffic or anything to cause the pilot to  's not as if it's not as if it emerged a month later that a bad thing happened and he couldn't remember i couldn't remember the circumstances one second or two seconds after he lost the control a line that smack passenger on the head and she was bleeding all over the place so if there was something that caused him to lose control of the line it's pretty obvious that it's called to his attention and he should be able to know what it was if suddenly a gale force wind wrenched the thing from his hand he would know that and he would testify to it but he didn't say anything he just said i'm always careful i don't know why the individual witnessed in understand on testimony at the trial the accident occurred roughly five years ago but he knew that the accident occurred a second after he lost control there's a lot of dynamic conditions in this area where the accident took place and that when you make it sound as if boy you can't you can't control the slides you just can't have any assurances that you can control these lines you've never had an accident until this one and so the question is does all that that the district judge misunderstood the concept when she suggested that well because there were other possible explanations not facts specific to this day were these people but just in correctly understand the principle and i believe that the trial judge did correctly understand questions she cited the correct standard ordinarily not does not occur and she cited the incorrect standard when she went to apply it to the  correctly and then she said well accidents can happen on the seas without negligence therefore i'm not a party here which was without question an incorrect statement just there but i think that sea conditions either by way of traffic or wind created when it insists there of that on this day pacifically with respect to this day we just know that this particular area has very turbulent not it should of apply in this before this court should have any bearing it at to the ultimate conclusion of this case the court concluded the record of this case record of this trial shows a record that does not support any cause for the accident other than negligence if the if the record is one on which the plaintiff has sustained the plaintiff's burden of showing negligence and the defendant has come forward with and and direct a verdict in favor on liability in favor of the point on this particular edge or opportunity to prove facts that would place negligence in dispute and you didn't if we conclude that's what the record should i think the record does show and this is ultimately a judge the trial judge did find was that mr biggins did hand on the line at issue in a print rizal manner she's she was the trier she was the based on his experience as a seaman on sailing vessels and his testimony with respect to what he was doing at the time which was one what was his testimony that exactly recall everything but what he did remember was that he used he handled the lines in the way in a prudent reason manner just like he always does and he doesn't know why the line pulled out from his hand but the court as trier of fact can gauge the testimony of the witnesses and make it her own inferences in this particular case that mr big instead did handle on a reasonable prudent manner and if that's what the court found in the gun that's not what's on appeal here you don't even have to deal with the rest simpson issue because that presumption if she chose to apply it which is also permissive would have been rebutted by his testimony that he's an experienced captain that he was and that her finding that he was handling the line in a reasonable and prudent manner also that you cannot minimize all that finding if the person doesn't know how how something came to go out of his hand i mean he doesn't testify i felt a sudden sure i lost my balance the ship you know moved in direction and and you know you say five years after the fact is the ship's log  sax and it doesn't say that it's it doesn't have any recollection of any event like that so how can you find that at the moment of the accident he's handling it carefully when when he there's no testimony to she would say that he this happened due to some circumstance out of his control well the testimony in there is actually the deal evidence that was presented at trial was exactly how the line is handled in this particular circumstance and the court viewed this evidence and understood and heard this testimony and found that the way that that then line was  the the item is not the way it's supposed to be handled right it's not but unfortunately you can't eliminate every time it took you to tell you passengers by the way when they board i mean this is a pleasure  your passengers when they board that the crew will not be able to assure control of the lines and that there can be access the serious accidents at the beginning of every cruisers a safety briefing is provided to all passengers and among them are to be looking out for you are watching where you're going like that so that passengers are fully aware that to have situational awar passenger's failure to look where he was selling or anything cause this accident we didn't argue that trial we're not arguing right now what we're arguing is that unfortunately because of the way sailing vessels operate  impossible to eliminate all flying and told you to sit in the most dangerous spot from this this particular hazard because the when the when the when the thing swing is when it's extended out it will be up it will be raised but just it lowest point is right there next to the mast where you told her to sips of the either side if she'd been sitting distance from the mast to be swung up over here right there you put her in the most dangerous spot from this thing which you say is likely to happen at any time i don't believe that we put her in the most dangerous spot this first this never has never happened before and i think there was testimony that lines do come on do you get pulled out of hands and but there was no testimony that this ever happened before shelley no notice and the crew members were usually utilizing their best way of handling the line and as they can do the coast guard only requires a captain a deck and top rate that vessel what you mention the video yet in the record it was it was a trial exhibit i don't believe it was put in the appellate record you i'll just be brief your honor i think i think we've already vetted all the issues that are present on this appeal at the end of the day there is absolutely no evidence that anything other than the deckhands negligence caused and contributed to this really tragic incident from occurring the district court talks about conditions in new york harbor but as as your honor correctly pointed out there's no evidence that any specific can that any such conditions specifically cause or contributed to it does because race ipsa because it just goes to the this is not the type of event that ordinarily occurs in the absence of someone's negligent i mean this is something that if this was their explanation they would have had evidence of it but the shearwater did not to it's a presumption of negligence and certainly as i think is the scores allude to the inference of an inference of negligence but really an inescapable inference and one which i think is this court has alluded to it's when if there's a demonstration of some non negligent score of which there has not been in this case and certainly i think would be within this court power to search the record and to not only reverse the court the district court finding error in not applying the doctrine but also its ultimate conclusion that there was no negligence on the part of the shearwater let me ask about that eleven finding because strict court says that this the court credits begins testimony that he was handling the how your carefully when he lost control of the line and mr russell emphasized that and suggested that receives or not that finding of fact is one that defeats your appeal so do we know what do we have to say with respect to that by being consistent with what you're saying here there is no evidentiary basis for the district court's finding its testimony handling the line carefully i'm not sure it would matter to me but what i'm i don't think he even said that i think that he is my understanding that what he said was a general statement about his habit it's my habit to handle things carefully  i mean he testified and i quote on page seventy eight of of the appendix you know i was the one handling the line and why are we doing that you know he said he thought maybe to clear a file and then the long got out of his hand i mean this is just a this is just a leap that the district court to me even if you credit it he didn't say this yes and there's no hatred just to disprove that type of testimony i mean it's all self serving it's all i was being careful that day but self serving testimony when you're the finder of fact in you you get to assess the person's demeanor is something we generally defer to correct all right thank you very much to both sides we're going to take the case under advisement and try and get you a decision as quickly as we can