we believe that finding was not supported by substantial you said but but the way you began i thought you were saying that there were basically no contrary finds to your position this is a country fine that's correct but the point i'm trying to make your honor is regard correct your honor that's the argument the government's tried to make but that really turns the contract on its head and to understand this takes a little bit of understanding of how aircraft are maintained aircraft are made need to be maintained on a day to day basis to be inspected on a day to day to day basis systems have to be checked on a day to day basis in under the contract the coast guard assumed all those responsibilities responsibility that k k t as soon as under five point seven point three is a contract that's maintenance with that with that means is once or twice a year their craft has to get flown to a facility an f a a certified disability for detailed inspection and in fact every two years or so it is was called a structural inspection where they actually care the aircraft apart to make sure there's no problem with the government is trying to argue is by taking that depot maintenance responsibility t k ca member you were somehow responsible for the day to day maintenance the aircraft that's talking about one person versus a crew of ten to twelve coast guard people that were in charge of the aircraft on a day to day basis also was earning training the obligations of all absolutely under the contract and that's another thing that it's individual have you had schedule all the training it's in the record i believe there were at one time and at that thirty two different coast guard people were trained on different aspects different systems for the aircraft about a corrosion detection it would that would be part of the maintenance training and therefore and which are those those are records show that there was language training for for corrosion detection or prevention your honor if you look at section four five point seven of the contract which is the first sentence of the maintenance provision the contract talks about aspect of the overall maintenance that now it's part of if you look at this section five point seven point one point two of the contract it goes into great detail of what our unit you know level maintenance responsibilities corrosion control just one of responsibility regarding maintenance of the aircraft a factual conclusion that was based on those on that dispute in the testimony or is it a legal conclusion or is that it was there a factual come conclusion that was used to support the interpretation the contest what is it your honor there is no trap whole basis to find the tickets he had dated a maintenance responsibility the aircraft in fact a contract says the opposite to the extent that the board made that finding  aircraft off of the aircraft flew in various missions so it was only in the home base on occasion it would often go to throughout the world so to say that he could see hey to casey did any kind of day to day responsibilities the the aircraft just not the way it worked ultimate question it as to live billet least for the expense of of the repairs comes down to doesn't it whether the there was a failure by the coast guard in its attributed i suppose as one of the k c employees said to the fact that in two thousand and eight they didn't find the corrosion or at least all of the corrosion and therefore that exacerbated the problem in two thousand and that's a statement as i recall from the record the initial conclusion when the corrosion was first found in one statement that was later explained in testimony at trial and in further communications with bombarded when it turned out that where the corrosion was found when they lifted up the carpets they're we intervening event but not put moisture into the aircraft and ultimately that it wasn't attributable to the cause so you say that's just that actually insupportable that's actually insupportable and that's that's the crux  the i take it that's the crux of your argument with respect to liability for the corruption that there was simply a failure of substantial evidence to support the the board's conclusion as to liability correct that's correct runner what i'm also saying is even with no finding about the cause of the corrosion the contract placed sole responsibility for the actual day to day croatian prevention on the coast guard this is a an aircraft that was in the coast guard possession for four years well the descendants of that are going to sense that i'm having trouble with it how to spend it and which board says there's no showing that any lack of maintenance on the part of us c g contributed to the corrosion problem that seems to me to be a fact that if true answers your argument that it was a problem that the coast guard which responsible for and didn't take care of that conclusion was not that that caused the corrosion damage to the aircraft that doesn't change the fact that the coast guard had dated if there was protein and it was caused it was in a rose the coast guard was one was transferred to in that regardless of what may have caused it initially had the day to day maintenance for corrosion control then conducted properly it never would have spread and gotten to the point that the repairs were as extensive as they were exactly right now  since you're going to time but you still have a few minutes left so let me ask you a couple other question see if it's true that i did not have any responsibility for this corrosion problem and why is it that you repair the corrosion in two thousand and eight without complaining and asking the coast guard to pay for that or homeland security and why is it that initially this time around you all assumed that out occasions it wasn't until you got charged could meet the structural inspections the past there were then that so could fly again the corrosion repair part was a diminished amount like two thousand dollars was not worth pursuing that's why it was not charged in two thousand and eight in two thousand and nine two thousand and ten what happened w correct her honor this was a good customer for t k ca he wanted to keep them happy there was consideration within the company whether or not to submit this bill to the coastguard for repairing the crocheted because they didn't want to upset their customer when the customer essentially declared war on them by three months after the after the aircraft returned to service and said you have we're deducting five hundred thousand dollars of money that you aren't under this contract because the aircraft couldn't fly at that point they arguments the ninety five percent figure correct is the five percent supposed to take into account normal people maintenance yes ok so so if that's the case then and help me understand how they would have to give you notice them down time when you already know that it's in the put people maintenance that that is by definition downtime is it no that's correct actually that was not a schedule people maintenance repair but what happened was the coast guard was servicing the aircraft the overkill the bathroom the lavatory it still leaked all over the back of the aircraft so that in order to repair the damage caused by that that coastguard mistake they had to fly the aircraft to hartford to have the aircraft repaired when they lifted up the carpet to repair that that's when the crozier was found near the baltic so under the contract the downtime assessment repair facilities and went beyond the time it was supposed to be keeping never received notice and was never charged on time because he k c a l assumed that under the provision the coast guard was assuming liability for that damage so that's why i notice this recall you're saying that the reason they were there in the first place wasn't your schedule you're basically scheduled maintenance this was something that the coast guard concedes was caused by them that's correct the initial repair that's correct but suppose that you had a case in which this there was just standard ordinary people maintenance which took like say five percent full five percent in a given year now so you've used up your five percent of the depot maintenance is not counted it doesn't count correct ok so what what  and it's off line for the five percent right and then at the end of the five percent bombardier says we're going to be able to find a little longer  do you get notification at that point from the coast guard or how do you work out when you start actually paying a requiring to be meaningful right to request your honor because i don't have two aircraft now no notification has been given where does the clock tick on the five percent for that period that it's in the repair shop as say the contract by mutual agreement with the parties if the downtime assessment and that you don't get those clauses that say by mutual agreement parties that's what this one set and it's because it in there is there is a reason for that because the coast guard had the aircraft in their own possession for the entire like the aircraft six years except one hundred seventy days so if there was a problem with the aircraft more likely than not it's the coast guard's problem if the coast guard thinks it's a t k c a problem they have to provide no evidence before the board was conflicting there was evidence for example that the corrosion was a long term problem with this aircraft and resulting from as of two cases project manager described fractional ownership means that they bought a plane that was owned by somebody else  selected by the coast guard and then the second option would be created by t t he would ever maintenance however they wanted to make it a hundred percent zero percent or someplace in between for maintenance and then that was the option the alternative maintenance plan that was selected by  and when we look at the contract the contract spells out very specifically what those responsibilities were now the do you agree with your opponent that that the responsibilities for the coast guard including corrosion control i think there was a responsibility on the day to day solicitation prior to the contract with a menu of items that to casey could include in there are alternative plan the coast guard when it wrote the solicitation didn't know what plan a to casey would propose as it's alternate so in simply said this is these are turners our worker bees to the site to do the work you'll supply your own and so the way it was structured under the contract was that the supervision in the direction would come from t k c and it t j and that the coast guard workman would come in and do the maintenance themselves now but you keep using the word supervision but if you look at at five point seven point one point two that take a steep a proposal it says to monitor and then maintenance  five point seven point one point two uses the word monitor it also says that the the the t t c will corney parts delivery part delivery schedule maintenance planning in coordination and then also in their proposal at two forty in the well provide a project manager individually responsible for the overall performance of the contract requirements and that's their onsite person who's going to be responsible for the overall performance of the contract requirements which because this is put in a maintenance program would include maintenance and then what will keep going through on a two forty one i want to what the court through the contract on page two forty one of the record it says that there will be a project manager responsible for coordinating for all required maintenance special equipment and personnel requirements for m r c c a operating locations and then on passed now just real quickly i started this entire responsibilities of the the project manager was misty but a lot of it turned out to direct the maintenance of the aircraft and were nation with the appropriate service center scheduling managers at two forty two and then on page four hundred sixty four in the record we talk about the depot maintenance which also includes corrosion responsibilities and of course people maintenance was entirely the responsibility of key casein the sub contractor  and on page four of that piece were sixty four the people maintenance include general and detailed visual inspections for corrosion and what the board also found persuasive was the price and that the difference in the pricing between the soup to nuts plan and the the altar being explained wasn't that much it was roughly eleven thousand dollars a year and really the only thing that was being substituted out was the workman but the supervision having that project manager onsite complaints and so everything at least from the coast guard's understanding was that we were doing everything that we were told to do under the contract and and that the testimony bore that out and then ultimately there was trojan that was found and that so that would be to casey's ultimate responsibility and the type of where it was found also was outside of the scope of the day to day maintenance in any event when mr bob a lot of explained at the time it was in december before the dispute arose was that the type of corrosion they were finding was the only the kind of corrosion that you would have found if you pulled up to see tracks done more than just look at the carpet but dug into the structure to look for that corrosion that's what the what they ultimately found and that's what this case is really about is a deeper level maintenance and the  was found in that context i mean ask you about the notification issue do you agree that at schedule normally scheduled people maintenance is not counted against the five percent i don't know on page two twenty of the the on page two hundred twenty nine point one seven my point the next to last and it's not the five point seventeen yes the next lessons all mean actions that's where i'm reading shall be included in the performance metrics calc told that means i take it at least as you read the contract and we appear to have a dispute on that point here but yes that means that on the first day that the plane goes in for routine maintenance at the hartford facility let's say that the five percent limit on unavailable it starts to text right that's right plus the five percent club that's right all right so what what strikes me as odd here is that if you are required to give notification before the clock starts to tick then you would have to give notification on the first day that it goes in for routine maintenance in order to minimize the  excess beyond the five percent is that right well the notice requirement is not read in a vacuum account for the prejudice requirement i mean if if for instance the t t c already knows that it has the plane down for maintenance whether it's scheduled maintenance or it's in this case would have no notice i mean when the plane arrives or you have notice that it's in from illness a notification i mean sure they have notice but the contract says notification so your argument is that well notification is not required in that case right well notification comes with the delivery of your pin i would argue that there's no distinction between notice and notification for purposes of schedule means once the wind arrives plain to me what's the point of the notification to mutually agreed upon notification farm land other than the fact when other than circumstances in which the plane was actually in their control would there be this downtime right while the plane is all over the world and so if there is a problem it takes the plane down while the plane is in timbuktu then to casey we may not know that and so the coast guard would have to say ok we have a problem with the plane it's down start fixing it you know whatever the solution is to that problem but where the plane is actually in casey's possession and here there was actual notice there was a discussion at the time in december when the plane was down that there was going to need be a need for corrosion maintenance and how long it would take but even if that had occurred what more could you do to tell you concede that the reason there with maintenance going on with because there was a fail something that the coast guard had caused and that's what initiated the maintenance in the first half of it my understanding and what i've seen in the  records that it was a scheduled maintenance and that's the way the project manager described it in december was that it was already in for a scheduled maintenance and then this would extend that scheduled maintenance period because of the newly discovered corrosion you say that's in the record yes and that mr were if for whatever reason it wasn't being charged to casey and i don't agree with that case but if if that was the circumstance that was in when the corrosion was discovered it wouldn't change the analysis is in terms of whether notice was necessary or notification additional work that needs to get done you're saying they just have to figure out when that transition period starts to being charged down will they knew when that was but yes that that's because the coast guard couldn't tell them that because the coast guard what jack didn't know about the corrosion until they learned from to casey it went in for whatever maintenance was needed in december of two thousand and nine and then how were they found the phone rings or whatever in the coast guard gets information from t that we were looking at your plane we pulled up the floorboards and we found the corrosion and so tiet seen you before the coast guard knew and that's what the word was getting at was how could how could it possibly make sense for and of course they're the experts on planes and notice is different from whether or not the contractor hires them to get known well that's right and under the baton works case what this court has said in the in that case was that where there is a notice requirement it's it only matters it's going to be enforced where there's prejudice you don't have to tell the parties that entitle to knows exactly what they already knew that doesn't make any sense to do that and so if you're going to enforce the notice requirement and you have to show prejudice is a real result of a lack of notice but in order  even to read this contract it on its plain terms of it's simply you can't give notice to somebody that is giving you the notice i guess that's that's where i think the word landed in that's where you have to keep coming back to is that the only thing the and they told you that isn't that there's a corrosion a problem when you're responsible for it and this notification is let you know that that we're we're we're assigning some sort of responsibility and in the event there's a dispute down the line this is a lot where the clock starts with this right there's two components to that yes part of it is to let the other side know this is where the prejudice comes in that yes we're going to charge you with the downtime where the cost or whatever so that you have the ability now to react and and how that would affect the down time but the fact the matter is at that time the casey believed it was their responsibility and they were they were saying that internally and they were saying bomb an armored year was we need to caulk those kinds of phrases so there was a and on if they had they had no choice because they believed it was their responsibility and they were doing everything they could to bring that plane back into service as quickly as they could and that came from their project managers were you you sort of conversation in december two thousand and ten you mean december to prejudice goes the board itself found the prejudice that t k ca suffered on page eight of the decision it says the assessment talking about the downtime assessment the assessment took place over three months after the aircraft arrived in hartford in over two and half months after the aircraft had been repaired return to service at that point it was difficult if not impossible to conduct an accurate analysis of the cause the corrosion so it's in december two thousand and nine the coast guard had provided the notice required service the lab that was taken off the that's because that was the coast guard caused open issues another point that my colleague nate he said that the difference in the price and the reason why the board found for the government was eleven thousand dollars a year and a different maintenance plant that's wrong join appendix one seventy five it's fourteen thousand dollars a month was a difference in the price that's over twelve months at two hundred eighty thousand dollars to fifty of the small business that's a huge amount of money and parked so there's water coming in the damage corrosion which not to run from the galley backwards it would run from the window towards the lavatory there's knows finding any such damage one one last point i want to make your honor i believe we made a clearly in the p but there's no way the government can get around the risk of loss caused in this contract the risk a lost cause clearly says that when the aircraft is in the coast guard possession they're responsible for off and it's the aircraft there's no finding here that this was normal wear four the appendix is the testimony showing that there is no way that this could have been normal wear and tear thank you ron thank you