first question before the court before any court dealing with the safe approach is what is the approach and that is a question of fact which is unique in each case the district courts there of law in this case was two nor the facts get what you're saying that the minute you turn in this case to starboard and the tugs take over that begins the approach that would be my position but i would add that if you want if the court felt it was some other place to start it's i think clear as it can be that when a ship is being pushed sideways by tugs she's on her approach and therefore she's in the approach to the difference between on and in this case and the ship was being pushed sideways when she struck the acar but just coming back to the judge's definition approach i want to point out that this court has actually distinguished between the immediate vicinity of earth and the approach in the knot was faced with court wrote was orphange are also has a duty ship was in a federal project waters does not pursue relieve a berth owner from his common law duty to inspect and warn its business invitees a has its and that a federal project where is a simply means an area where the government dredges and all other respects federal anchorage is the same as any other federal asari the same as any other navigable waterway which is subject to the federal jurisdiction for various specified purposes specified in the code of federal regulations which does not include searching for hazards and this is true of the pathway from the channel to the edge of the a matter of law they had no right to rely because in fact the government has no duty to do as you've suggested and it does not in fact do as you suggested and cargo in fact knew or should have known of that apart from the fact the fact it's it's a fact of the government doesn't necessarily have if the government doesn't have responsibility why does the birth order now have a responsibility because cargo makes use commercial use of the staff they know the staff way is the only way to get to the berth they know they're invited vessels are does this goes out and does a some type of very in depth inspection of the approach to it well we don't know that from the evidence there's no evidence that dredging in the right up to the federal channel in many cases cited in our reply brief and in one case right through federal anchorage the number sixteen so we know they survey and we know that the federal this is not right imply that it's a question of what i said was illegal or it was for the court to ignore the facts and to delimit his definition of an approach from there on it's a question of fact which which i said in the briefs in this particular case though the record is very well yes what happened to i don't understand that i mean it just didn't seem to me as a fifteen sixteen page opinion but usually what you see is something oh well we can't we can't account for what the judges don't what most specifically the language and various decisions the waters that a vessel must custom where does customarily travel from the up river channel to the bir this is this is got to be a flexible standard because it's a question of fact and it's could be different from face to case it's certainly going to be different in the harbor than it is in a in a river i don't harbor they the ship might approach from anywhere and maybe there is no usual that was clearly erroneous all the other answers to the contrary no evidence whatsoever suggest that they would not be accurate every script someone arce i scanned did find the anchor and other objects including one in two thousand and one that although supposedly the anchor had been there  went to corcos earth in three years of which i think it was twenty two had to have gone there during high water because that was the pilot requirement for ships of the draft over thirty seven and a half feet another i think it was thirty one address between thirty seven feet and thirty seven and a half feet probably went across the anchorage and high water because the local i think was a ma want to cross my water and then there were another eighteen ships we don't know when they crossed and we don't know if they touch the anchor so if you could have been touched without causing any damage to ships you're saying that determination really clearly erroneous i record sufficiently developed that that determination can be made on the face of the record and would turn on credibility determinations if a different judicial officer have to review the record credibility you know because there was no contrary evidence testimony document own witness said it would be easy to detect we are right and you're asking that we make that determination yes the draft here was what thirty six or thirty six seven if you're right that's right and tell us about the the memorandum november twenty two what that what that did and how it helps or doesn't help your case well that does a misrepresentation claim and it also demonstrates  otherwise quite a proper procedure as everybody agreed and that you argue that had you known there was any issue you would have been more careful you would have waited the court made a finding of fact that that statement wasn't credible well no court coco's own survey that showed that there were shoals shall places right in front of the birth of thirty six feet three inches to thirty six feet nine inches which is in some instances shallower than the depth of th they would have either waited until high water ice and and or insisted the cargo take off some of the cargo into a barge called lighter and it's done all the time so that the ship stress would be proximate cause i recognize that cross paths and cause us often difficult to answer it's often sort of a metaphysical debate without a correct answer until the court decides what the correct answer is  he has a question to that and then i think i want to ask everybody and that is if we if we were to agree with you on the contract which you haven't had a chance to get t f but if we were agree with you on that is there any reason to reach the torque line damage is different now the damages are the same the only reason i see to reach the the negligence claim is because it's a very important issue to the general public yet that we that's what you're focusing on the contract claim you have a contract between star and cargo you have a contract between star and prescott of the what shows the intent of cargo that there prescott to be accorded third party beneficiary privilege well i think that the intent is derived from the language of the contract in the context of the context in this particular case includes the fact that cargo is the earth owner but the language is plain enough and i think that the supreme court recognized that in the comm committee in the district court in that case the trial judge found for the ship owner on a theory that there was a direct implied contract have been done that he between the ship the stevedoring the ship owner obviously the supreme court did not find a direct contract but they did very deliberately in view of the alternative did very deliberately and there was a third party beneficiary right in the ship owner and stevedoring cases from two years and three years respectively before to this and then you kind of that you go if years later to the bunch case out of louisiana where they say wait a minute that's a no stevedore case but you need intent republic not to submit a defense paragons claim the reasoning the court or y p s phrase was that it would hide from y p if the fact that there was a foreign company involved as well has american company because they only that unknown party that was the that was the person or the entity at fault here was the government's fault that's correct but and and it's true that it wasn't the government's fault but that doesn't mean that other answer to shouldn't  it's not to appeal some ruling by the district court that the united states is liable because as you know there isn't one it's much more to the affect that pretty much you have a whole industry coming in and saying we're not responsible for taking care of that the area that you ask it to dredge i mean i'm assuming if there was some issue about dredging into the middle of the channel in a busy day of something it would be a problem but generally it's not the government that says what you can dredge you submit your permit and you ask or it happens that this is an unusual terminal because it's so close to the anchorage ground and because as the testimony said the vessels have to come through the anchorage to reached a settlement agreement because they agreed not to bring claims against the damage but how would that bar them from serving its offense based on the negligence of the government as against a claim by for scotty doesn't i'm having a hard time following  logic i understand and you are not that would be completely correct if what they had said was we don't have a duty the government has a duty but the way it came up in the district court was as a supposed defense to the contract claims and so the request was that the government forego its contract damages because of its quote unquote exclusive control of the anchorage grounds so and that's really and i wasn't there that's that's you know you control clear that the government does not maintain or have exclusive control of anchorage and in a sense that would prevent kako any other time alone or any other river user from getting a permit to the approach how would you define approach your honor the approach is defined and judged from found by the geographic scope of the birth area the immediate birth area within for example in this case the red triangle that's about the area immediately adjacent that seems awfully small when the ship has to turn in the channel two in this case starboard talks come on and comes approaches the berth should it be from as the amicus brief of the them go international says that an approach should be made the pathway from the point at which ninety six right that's correct year and it has a definition of approach in there in all of these cases and even in the plaintiff's cases they're taking they're trying to expand the definition of approach all of these cases if you take the plaintiff's case of th implied from the opinion that the earth owner is only responsible for the immediate birth area and in all of these cases the approach is that's what was said in the models the immediate entrance to and exit from the physical box other cases well he did cite favorably in in his decision the western ball case and his definition of what of the area that was responsible for it had no doubt he said it had no duty with respect to federal anchorage number nine because those public waters constitute a surrounding areas or areas over which cargo exercise no control so you believe the legal definition of anchorage should be the immediate vicinity of birth of approach in the me that's the language of all of the cases in the immediate vicinity of the not surrounding areas not waters in the vicinity and you'll see in the model s and all the other cases western balk and because the what the there is a legal standard that the judge followed and the facts of parco only up sized maintenance and control and dredging within the triangular area that's that was adjacent to their physical dock structure if it's a fact issue that means that it would be improper for him to for the judge pull him to have this reported all of the  testimony on approach that seems to be at odds with what you said right i mean it appears that throughout the record the definition of probe seems to be more broadly discussed than you've just said i mean you're basically saying it's the area right right outside of the earth but the problem your honour's is the word approach can be used in a vessel approaching a dock it could be it could be sixty miles away approaching a dock it's used very loosely in the decisions you have to focus on the geographic scope of the legal duty which is where cargo control to maintain which is a red triangle shown in the exhibits and the approach has to be within that area all of the cases say that it's the immediate entrance to an accident  earth and that's what we consider the approach is now is that what you're talking about no your honor the if you use that definition and then this is the whole point the for scott is trying to take this approach and expanded into public waters mean all of that the entire passage that the vessel would have to make out to the delaware river from the delaware river how voyage from the birth to the child excuse me i said how far is it from the birth of the child you have to go through the federal anchorage first know how far just i say it's about it's about one hundred feet slightly more than nine hundred feet i would say all right to the definition as it seems to have been framed in what i just read would take us from you know some point at the channel around the cattle edge through the anchorage to the birds and you're saying that's too broad a definition of approach yes your honor it's and then this feeds into again the policy issues where does it where does where does this end if you expand the legal duty of a birth owner terminal operator outside the immediate berth area which is what the case law presently holds then you law would be the definition of what is an approach is that correct the law of the law would be the term the what its all operators duty with respect to reasonable care what is an approach i ask you what is an approach that question of water fact i think it's a question of fact the approach itself based upon testimony definition of an approach that is definition of an approach is a question has to be of law right  and when you look at the novelist's case it says when i'm looking at what you are supposedly gleaning from you talk you talk about duty extends to a ship's right to enter use an exit it were fingers dr phil it is not being exposed to danger that cannot be avoided by reasonably crude navigation seamanship so entering means somehow you've got to get there from where you are in the river and then you look at it as sonic marine which was a district court case  today six the approach extends only to the birth into the approach to the birth and not to adjacent areas whatever that means and then another case from the fifth circuit it does not extend to hazards merely in the  well beyond what reasonably could be deemed to be an approach so i don't see how western vocally helps you well it does seems to me that it comes back to the the amicus brief were council says on page twenty one the most logical place federal anchorage number nine is part of the same federal delaware river project as the channel it's no different it's a public waterway it has to be dredged and can and maintained by the army corps of engineers to vessels use that public anchorage so that public anchorage federal anchorage number nine were vessels that don't even come to park o's birth anchor cannot be considered an approach it's actually part of the navigable delaware river project and it's only the area inside of that anchorage boundary the carcass would be responsible but also what physicians ok your position is that because other ships can also used and hurston it by definition can't be part of the approach for a particular ship that's approaching your earth that's correct your honor the these are this is a public waterway this maintained by the army corps of engineers of federal anchorage part of the delaware river project it's not part of our birth and therefore it cannot be an approach to the cases that you cite it's clear that control would seem to be a sufficient condition for defining the area that of responsibility but it but i don't see anything in the cases that say it's a necessary condition to find that there have responsibility and yet that's what you want us to say no i think the cases do rely on the area that is maintained and for all the actual birth area and for example in western book that the same argument was made you have the birth area that was maintained in the control of that port and then when the vessel left and necessarily the vessel had to go through this federal project in western balk to get down the river to get to the pacific ocean they had to go through this you can't argue that the court rejected the argument that that would be an approach but in western bill they discussed three cases that considered the finding approach but ultimately concluded that since the ship grounded in the shipping channel it was quote in an area well beyond what could reasonably deemed to be an approach to any of the port and its stock in spurts that seems to be at odds with what you're telling us i believe it's the same thing that was several hundred feet from their birth area and it was not considered an approach it's no different than from the it to the adjacent anchorage it was part of a federal project just like the channel and western book the approach can is the approach cannot be considered to be the area is it possible that a master would become more cautious in the anchorage upon learning that the draft of the birth that he was nearing just increased by two feet the ocean thirty eight thirty six and you know the draft of this vote is thirty six six or thirty s honor the easy answer to that question is as a judge for him found as a matter of fact that he rejected this post incident speculation based upon credibility the witnesses that he heard testify in this case the chief of the master in the second officer transit of the delaware river iranians fully believing they were transiting at a high tide when they're actually transiting at that low tide and the fact that those two that the the master and the chief in know your honor that the in the morning when when cargo has judged full mc found as a matter of fact made no decisions with respect to navigation all of those decisions were made by the navigators aboard that vessel and navigational decisions as they say our birth is clear but it's up to the master and the pilot to make all of the decisions on whether a safe transit can be made based upon the the experts in this area based upon the navigational information available to them one of which is title information and they in making their decision and if they can what it was what low tide coming and progressing toward high guy all that we know is that twelve twenty when they point it was still it was just a big it was just the beginning of coming up from from low and how much differences are between high and low tide it's almost six feet in the delaware river and in federal anchorage number nine and so if  the chief officer second officer in the master would not even respond to publicly available title information judge for him found properly that they certainly wouldn't have responded who were if you were a master and you thought that he thought i had draft clearance was thirty eight feet not knowing that it had just been reduced by two feet or days earlier to thirty sixty and you knew that your hole had a ramp to thirty six particular situation you have to look at the particular language set forth and that manual that they're relying on it's it's an indication of and you have to look at the wording it says thirty eight maximum draft at the birth at the time of the revising of this document it may change from time to time and it should be verified before arrival but none of that why wasn't that information given out to those who might like masters because there's been a change and you make the call if you want but here's what it is we've creased the draft because of shoaling thirty eight thirty six well in fact there was no change because an exception was made where there was an army memorandum of the twenty second of ever was there not yes there was a runner and it was and as if that the maximum draft at the birth was being reduced from thirty eight feet to thirty in this particular case this didn't deal with approach this policy has to do in this with on the ship is actually secured to the bar and that exception by mr ranken was done it with full notice to ten days before a vessel called the new river had come into cargo with a draft of thirty six eleven went through an entire or higher titles that cycle while being loaded and left at thirty seven three these are other boats have gone through perhaps at other variations of the tide of gravity the resulting injury well that was significant injury it was a significant well spill and damage to the hall and the burden of that it would precautions and that's really what i'm focusing on here because if you knew that there was a problem four days before and basically this this vote on the twenty six as i understand it from the record is the last one of the season to go through one might make an argument that you just sort of say ok let's just let's just get through this and we'll worry about it next season and you can do that there was a difference of two feet and yet nobody else was told of your honor first of all it's not death it's maximum draft you cannot tell anything about navigational safety from maximum draft the maximum graph goes from the water line to the bottom of the queue it's up to the vessel navigators to know the depth of water so this has not a judge for them found did not affect the depth that was available in the anchorage which was safe was the master looking at charts that showed a draft of thirty eight feet the draft of the master was looking at navigation chart that had depths as low as thirty four feet thirty five feet in this general region and so the mayor should have known of the of the recent discovery of the shoulder you know the master should have prepared a port to port passage point where it takes into account depth from from birth to birth and that's the requirement of the federal regulations and he has to know that now of safety information for navigation and depth is crucial and this particular document did not mention anything about death it was draft and in any event the exception was and the memo on the twenty second talks about because of shoaling the draft is integrate the draft as being with us and thirty eight thirty six yes but that's the draft of a vessel from the water line to the there's under kill clearance beneath that so it's not a representation as to depth within the anchorage i mean within the birth and in any event what do you think the master would have done had he known the information the twenty six that you knew navigation and secondly he disregarded the most important information about tides so who would believe that he would even consider the raft information that really can't give him any help  carrying a safe birth birth passage point and more importantly on this note on this issue the incident occurred in similar to the comments in the novel is case outside the birth area and there's not a list found that things that happened within the birth area can have cannot be a cause or a proximate cause in fact of something that happened outside the birth area and in this particular  the state stated the court stated that those are factual findings in this case judge full made a specific factual finding that this incident happened outside the birth area and that there was no cause and facts or proximate cause and that should be to the word if you do you concede that the concept of porch is broader than the concept of earth combined with approach in terms of the warranties yes well there is a safe port save birth warrant the ports a port warrant you would apply to the port of polls that would include the area in and around paul's the birth again would be when in the cases shows when the ship is actually you agree that in this case the port would encompass the anchorage yes ok so so then the question becomes if it doesn't compass that area that this whole geographic analysis then the question really becomes if that's the case if we ever get there and is it a negligence standard or is it something stricter right if the what if if you assume that there's a third party seventy three vessels in four years one hundred forty one in the year before the accident and in any event even if you get past that and that's a finding of fact and conclusions of law on the part of judge for even if you get past that there's the name port exception this master knew he was coming to paul's bro you've been here before truckers have been here for fourteen times before that this terminal and they're in the best position under the name port doc determine whether or not he was measuring that by some definition of porch that was more narrow than what you just agreed to is it is it clear that when he was defining the word to be safe he was defining the port broadly as you just have well he could because his findings on this on the safety of the poor were based upon the safe echoing the bustles six hundred seventy three during the four years before the incident and that those are the factual that considered to be safe as a matter of fact and a matter of law based on prior usage doesn't what you're saying is that strict liability doesn't mean strict liability against any possible accident it means strict liability to the extent that  safe under some objective measure that's correct and also there's not strict liability even under the second circuit rule because negligent navigation would be a complete defense to a safe port safe birth warrant the end of the second rule and that's the reason why the or do no case has a better standard because it recognizes the policy problem with having a strict warranty the the better approach has it because that district warranty would discourage or have navigators in the law on the warranty and they're the ones on the scene and they're the ones best suited to assess the port and berth and to make quick decisions on scene solutions if i understand contract law i mean but you can my house and i give you a warranty that you will be safe that's that's something beyond just your negligence for me not taking care of something i'm saying to you i'm telling you you come you'll be safe if you take this particular approach well this isn't a serial on the church or partier of the law it's not an absolute even the strictest standard which would be the second circuit approach that negligent navigation is a complete defense if it's causative so that warranty and then there isn't any warranty  all under or doona it's due diligence standard and in any event in the name doctrine extinguishes the warranty that is the effect of that doctrine but we don't have to get to any of this by the contractual level if we did if we did thurman different from you what an approach is and that you had a responsibility for example to let people know of the nov twenty three memorandum if that's that w well your honor i think in both in those instance taking the first part there was no misrepresentation and none of us didn't i'm saying we don't have to get if we determine that there was no intent to have a warranty given by cargo through prescott it because cargo is given at the start tankers and start tankers could make a claim but not necessarily but scotty if you don't believe that their party beneficiary intent here then you don't get  any of these issues we're just talking about that's that's correct  this first i would like to respond to judge greenways two questions the first was whether the approach changes for each vessel the answer basically is no on every vessel that comes into on the flood side is required to take exactly the same path and that was carcass testimony as well as the testimony of all of the not nautical witnesses including the pilots that's ninety percent of the ships that go to cargo and it's my understanding the other ten percent of ships are also pushed in sideways by tugs the only difference is they don't have to turn around therefore i don't know whether they might start their approach a little bit more the river a little more prep more southerly then the ships that turn around do but if that's so first of all it would only add a little bit of with to the church to the area that has to be inspected and secondly whether we know where they are normally not a gate or not i think of earth or has a duty to the ninety percent of its ships that come in are precisely the same there is no other path and your second question judge greenway is how far was the channel from the earth and the answer is  was less than two thousand feet now to put that in perspective carcass birth is a pheasant feet long the birth is the water next to the jetty here it's not here itself it was a thousand feet long because it was designed to accommodate two miles up this is a two point two mile long anchorage it was a few miles away has nothing to do with our case the second finding is that the port was safe for a vessel that had a draft a thirty six foot seven inch is going to cargo and what he didn't say is but it must be implied is at the beginning of the flip side all the witnesses first of all agree experts agree that a drift thirty six feet seven inches is proper and they all agreed it's proper to approach at the beginning site including captain ranken as the port and cargo but the judge never made a finding about the the fs is a draft if they have those draft was in fact thirty six feet seven inches and if it was salute because it doesn't apply first of all to the captain's negligence if there supervening or contributing negligence then the damages can be either divided or disallowed altogether it also is not a guarantee earthquake in a place where there aren't earthquakes or riptide in a place where there aren't rip tides and unexpected war this is an english case an unexpected hostilities between iran and iraq that prevent the ship from leaving the port between the bottom of the ship and the river bed at its birth one foot so that means the depth of his berth had to have been at least thirty nine feet in terms of what was represented to the ship i'm responding  to things that they said on facts facts which have to go back and remember i can't help but say these things first of all there was this there was no there were no areas where the depth was thirty four to thirty five feet i don't know where that comes from shallowest depth and the general area on the the master was very careful  ship got these instructions two days before what nobody's going to check on that and secondly it's deficient as a matter of law because there as we've discussed it like a birth owner has an affirmative obligation to warn about risks  he said it was within two thousand feet of the terminal comma immediate vicinity of the tunnel that was what i was clueless montane its explanation we were trying to promote a definition of approach and that you'll find it to evenly between prescott and cargo but not have the government participate in that thank you very much