the district court misapplied oregon law in several respects each of which independently requires revers whether sufficient evidence was presented to the jury to allow an award of lost profits damages if we are right if the last judgment needs to be reversed with instructions to enter judgment for the defendant also go independent like to whether the jury was correctly instructive and if we are right about that reversal on a new trial will be required there appears to be no dispute today's again i properly errors requiring reversal is the district court did not confine the damage recovery to last net profits which are the only lost profits damages in oregon law  the oregon cases are consistent that only last net profits can be recovered and what the cases mean by net profit is the whole overhead and certain other fixed law cases and it was binding on the trial court and it's finding on this court and the diversity our green stamets is proof clearly does not the doctor overhead and fixed expenses as required by oregon law mr gingrich was evergreens damages he calculated what revenues evergreen would i know but i think the way to look at the cost of owning an asset is let's assume that asiana had breached and evergreen has no change in its business but against the other customers who were paying evergreen to use that line and who ought to absorb as part of their price the cost that evergreen incurs in owning and operating  of practive is variable cost but if it is revenue and the supreme court of oregon relied on tranqs and it's fair to assume that he had at least some expensive operation including overhead which must be deducted a lower capacity during the time that he's laying claim for damages it's my understanding that if he was claiming that he couldn't get a particular job so he ought to be compensated for those you know if the case was clear because when i went through it i did not get the impression that he had already in those other jobs born the same cost that will being made by the court here is over here core situation a problem seller theory addresses is the manufacturer who has an inventory of goods it's one stale it's lost it's perfectly easy we could we could perhaps flown a completely different schedule than the one we did fly and if we had done we might have been able to service to gays again a contract as well with goods in inventory which can be readily transferred from one ira to another fire services contract are very different obviously very interesting discussion with i'm also interested in your position on on the issue of the you know whether oregon permits loss volume recovery in the first place at all and  are quite conservative about contract damages we think as i have said that they required adoption of overhead we think that they require a deduction of the cost of income producing  but if they do that much if we're right about that and i think we are if you read the cases carefully then the organ service contract cases are inconsistent certainly with the pr of requiring the deduction against profits for overhead and for the costs of income producing has not by the contract to first break the oregon cases do something different they say no you look at this is an accountant what if you have a company has ten contracts and an accountant is asked plus the profit from each contract you count and says all right we've got to apportion overhead we've got to apportion fixed cost over those ten contracts and we calculate profits for each one and the profits we calculate for each one vet or a up for the company's total profit that's now an account with these issues we submit the oregon case look at profit the same way that if you had ten contracts and you calculated dance you calculate a profit on each of those contracts the way evergreen watched it then you'd end up with a company that would have two or three times as many profits as actual total profit speakers to fix cost and overhead would or idea if the court is prepared to get to that conclusion fine we think that would be great but if the court is in doubt as to what oregon court would do this is a classic situation where the court ought to ask the together with all the other business that it got afters i don't laugh and we point out in the briefs that they got so much business after nine eleven that you only have to assume that you know if the constraint  having to keep a plane for the a three and a contract would have reduced their military there's no spine no more than four percent they wouldn't have been injured in those lines and they make the basically impossible argument that in a time when they could have gotten every bit of business that they wanted from the military they still reserve enough capacity to supply the asiana contract and i say to you if they have fasti why on earth didn't they take on additional military dismas and use that past that's the factual issue and that's the background against which the legal issue comes up which historical documents which shows what they did and which shows that their existing flight schedule was incompatible with the asiana contract and you have a general testimony from their executives of the plane and or the organ the reason for that is oregon law doesn't try doesn't think that it's right that millions of dollars in damages should be awarded just because an executive requires any sort of further guidance by the oregon supreme court and in august of two thousand and three she's in august two thousand and one easy out of reach this contract the contract provided for asiana to operate one seven forty seven two hundred cargo airplane for three years when it breached it left evergreen with eighteen months of lost revenue and additional capacity in its fleet on favre work in february two thousand and three the jury in this case were there for a damages and what those damages were were simply the benefit of our bargain that it would have had was a gian the jury restored evergreen to the position it would have been in had there been no breach and so your honour's we believe that this case should be affirmed for least three not operating for example the interest expense on the airplanes didn't change whether or not it was in the program or not the insurance on the airplanes didn't change as a result of asiana being in the program but some things didn't change the car constantly constitute breaches in title be put back in the position he otherwise would have been placed in the cases that he's the other sites on these points where it's priced have actually together of some sort of a bright line rule that overhead is always to be excluded don't stand for that proposition in the majority of those cases i think in six out of the eight cases that they cite the plaintiff sought recovery of gross profits there was no evidence at all submitted that any of the costs little known cost of or avoided and i think i heard instructed the jury that if evergreen could prove that it had the capacity to fulfill the ac on a contract and all this other business that it was entitled to damages for the breach of the contract this is really no different than the flip side of mitigation which is what is going on and also attempted to prove to the jury easy on his expert witness said to the jury as asiana says to this court everybody didn't have the capacity to fly for all of these other customers they could not have taken presented was substantial and one point to clarify there seems to be a difference between the sides here as to what the standard is i think the prevailing oregon law is the law on the subject is reasonable probability and be the preponderance of the evidence i think we went well beyond the evidence that evergreen presented constituted first of the testimony of its flight schedulers people who do this in day out those witnesses testified that the in the manner in which evergreen schedules its fleet they also testified that easy on it is not a last minute customer that comes in and has to be fed into the system but it's scheduled well in advance our perspective in the end is the evidence anything more than the flight schedule or saying well i do this and i could have done it and there would have been the business there it's far more than that your honor it consisted of slow sheets which de you can't find the other jobs you're competing and can't do them profitably well that trouble's right well i don't believe it was our position i don't think the evidence was that evergreen had an unlimited supply of customers and the argument was we had an unlimited capacity to serve customers at the time of the breach which was approximately two weeks before the tragedy of nine eleven evergreens fleet was woefully under occupied there were even airplanes that were stored at their facility in arizona because there wasn't enough business to fly them to the point we're making is that the business that came afterwards which was predominately the expansion work of the united states evergreen got a portion of that expansion work as a member of one of the bidding teams a number of different airlines but that evergreen took all that it was entitled to which i think the evidence shows was approximately fifty five percent of the business it all it was entitled to our point and the evidence below was that had easy on it been in the system at the time we would have still had that fifty five percent of the revenue available from the us military flights but we would have taken a different routing of tho but we also showed some additional evidence i think your honor in terms of capacity evergreen uses a forecast three hundred hours per month per airplane that it would be able to fly for a before the breach there were not many times an evergreen was able to achieve that the testimony of our expert witness was that demonstrates evergreen has capacity but there was evidence to support that there was evidence in the block our reports after reaching on this breach were evergreen flew on an airplane by airplane basis well more than three hundred hours in november of two thousand and two fleet as a whole average more than three hundred hours did happen every month no it didn't happen every much that's why we had evidence of status without dispute throughout the rest of the contract evergreen was left with only one customer that required a two hundred psi cargo door and that customer only used that plane on one trip to finland and back for a week from new york so did we have the capacity with respect to a two hundred i think the record was quite clear on that but the evidence that was presented was that evergreen doesn't use its airplanes on it on its specific model basis unless a customer asked for it all of the military business that evergreen performed had no specification as to airplane type evergreen most commonly would use the one hundred airplanes they had the same interior capacity they could carry all of the goods of the military wanted to have shipped and they could then have their other airplanes out i'd like just briefly unless the court has any further questions to emphasize that i think that oregon law whether we're talking about the question of the measure of damages and loss net profits or whether or not the last volume concept would be approved in oregon the that that is not a matter of real speculation under oregon law the trying stanfield cases both approved the last volume statute that was  approved by the oregon legislature if they had difficulty with those concepts they would have raised them then the court did not and the stanfield decision by the way was denied review by the oregon supreme court not necessarily  shattering of the president but nonetheless the court had the offer to to look at that issue we don't think it's controversial we don't think an extension is even necessary under the benefit of the bargain rule that is established by seer and so if i might just conclude the jury are presented here it is true that in the trying to ok there appears to have been an award of overhead it is true that in those cases they quoted the u c c provisions areas not a word in those cases or still whether last those are cases for all it's perfectly clear that what happened was there was a statute before the court of appeal court of appeal apply that statute it gave no thought to whether the law was otherwise you know their circumstance is not presented so the cases are what they are but they don't begin to deal with the issue presented here second it was asked what the evidence was other than the testimony evergreens executives again are historical documents but was actually flown very useless for purposes of making up the schedule if you had a plane that flew every other day for one day on one day off its block our report which show it was half that plane could not fly from new york to stall which was what the asiana contract called for that's a two day round trip flight so you need a schedule evergreen could have prepared a schedule schedulers they had all the advantages in the world they could have called everything in their favor they didn't put up the schedule the oregon cases require supporting data and the