there the limitations that was fascinating fifty you don't see many of them reach the appellate court's decisions granting limitation because very few are granted anymore that statute was facts below the facts are agreed the findings of fact entered by the judge below we do not dispute it is the conclusions that he drew from those facts which are disputed and that is revealed all they know most importantly the court found that the master felt tired before he left that's a finding of fact it's not disputed the court also found that western pioneer had a policy of leaving it up to the master to decide whether to spend the night at home dock or take off expert testimony presented at trial said you could have predicted at eight pm given what this man had to do that they knew that's all he had been up since three three and arrived in long beach california you could causes to the collision was the captain's tiredness this is the four captain left in up to the tire master to decide whether or not he's too tired to go a vessel on or seeking to limit their liability to the value of their vessel and they cause a horrific accident cannot do that and limit their liability they have a much higher standard while they have control and those are everybody now that's why the burden of proof become important in the reason we all agree on the burden of proof it's on the petitioner to prove that that tiredness did not contribute to the accident what was the evidence after the barge owner really not in the record is the only point but they're looking at the captain's conduct what this court needs to look at and what the limitation act looks that is the owner's content i think it would be a terrible mistake for this court to expand the limitation statute to encompass the big boy standard as i call it the captain's a big boy we're going to leave it up to him if he leaves when he's too tired we're only liable for the value of our vessel that is not the last council for a western pioneer understandable did not actual knowledge what could they do to find out this court has said within the meaning of the section of the statute limiting liability knowledge means not only personal cognizance but also the means of knowledge no your honor i would not be my client would not be entitled to do what you say one of two things existed if we were seeking reimbursement for the fines that we paid which we are not doing because those funds were tendered immediately and they tendering the obligations being that are in contest and the third thing that's uncontested if that there was no conflict of interest in this case with only approximately a minute left let me just make the distinction between the cases cited by i  effect because there are circumstances aside from this case where conflicts of interest may not exist that's not what those cases whole case western pioneer cites that the rule applies where there is a potential a potential for bad faith because the they master cakes nap during the sixty eight hours that is one of the two week fact of the matter is it's impossible for a person to go there and make sure he takes now that's  do the job he testified that if someone had asked him if he was able to do the job he would have responded yes i'm fine i have no problem is sickly what he was saying is that he was able to do the job although he was very felt that he could do what was necessary and that was when he left it up because if you didn't feel that way he was entirely responsible to take a nap and leave in the next morning was one occasion actually where and she explained that the captain actually went through the lives and at that point in time realized you know i don't feel comfortable here turned around and came back this way at that hour if you remember this is a friday night case to take a nap so good that he came back if someone had asked him at that point in time he would have said i can  those cases there was a actual something that the owner should have seen or could have seen it would have indicated that the soldiers on scene really in this case we don't have that we have a captain who was completely really when it left for and under the limitation of liability act which has been around for a long time under those circumstances western point the fact of the matter is they initially made the determination including their really defend the case based on their investigation now the appearance of a conflict of interest is that they will use he failed we agree that's not disputed why did he fail he failed because of western pioneers policy to allow tired captains to go to sea that's why he felt it is not the conduct it is the captain's responsibility to be sure the crew is well rested that is not the law it is the owner's responsibility when they have the ability to control and here it would be a huge expansion i