misread provisions which were just definitional to bar annies positive claims it failed to apply the proper damages methodology which can't even be defended by trance ocean on appeal it fail to address the two thousand and eleven notices and feel they can explain what it thought additional correction meant under the contract they relied on trans ocean say so that it was ready willing and able to perform it relied on evidence that was not even in the record and it never made it any findings regarding good oil field packed is not to find the tom it ignored all the experts who said different things such as the bent slane for the blowout preventer was a  fuel practice we don't even know what the district court thought about it because it didn't make any findings as to what people thought practices bent or whether it was rejecting that of their testimony in any grounds those errors those provision they put in their contract with section five zero nine which required the trans ocean and i quote to maintain well control equipment in good condition good conditions at all times and expressly that included the blowout preventer and the key components of the blowout preventer and of course that's true because they put that in there because that is a key safety equipment that we learned with the deepwater horizon it was the failure of the blowup prevent er there which caused the massive loss of life and the environmental disaster that it's helpful to get a picture of the law or matter it's a five story tall poor hundred fifty ton unit that sits on top of the well head  and sits around a drilling drilling pipe and it's critical because there's be kicks up from from the from the drilling hole of dangerous flammable gases and it is the blowout protector which protects those from going up to the drilling unit but on the deepwater pathfinder that critical equipment failed repeatedly forty eight times during the three year period all due to transocean and its agents failures and during that three year period there was a unplanned pull eighteen times of the entire unit that means you have this unit the five stories two hundred fifty ton unit thousands of feet under the water and unexpectedly because of failures you have to pull the whole thing thousands of feet up  onto the rig once again the experts testified even have one here is exceptional but they have eighteen times in three years is completely unacceptable given this the failures again and section two zero three and section thirteen zero five permit determination we start with section two zero three it requires notice there was ample notice here starting and in march twenty ninth of two thousand and eleven there w specific formal notice sent with the magic words of the non can material not conformity with the contract specifically identifying the blowout preventer specifically identifying the pods which are the brains of the blow preventer if those with down's pods are not operating that whole four and fifty ton unit is useless what fires the mechanisms that keep those fumes of dangerous fumes down are the pots so what is what were they required to to three months notification has been they are required to initiate a actual correction which will first requires them to identify the root cause of the problem in the district or it fin  the guy coming to fix your your dishwasher takes apart you know the units and then just goes and has a sandwich and never comes back he initiated a correction is that with the district court thought we don't know what the district court that is the initiation here as the experts showed  it's like if you go to a flat tire and you go to the gas station and they pump air in it say well you have a flat tire in work going away and then two hours later you have a flat tire again that's what it's analogous to now it gets to the let's go over from the three twenty nine they give  notice that the blowout preventer in the pods are defective we have another failure just a few days later on april fourth and then another notice we sent them money april fifth say look the ponds are are not working on the boat permit or they're crucial there's another the contracts definition of initiating a correction that's actually fixing the problem the blowup preventer remains unreliable it's not ready for the high pressure a type drilling that we have conned we're paying you a lot of money six hundred fifty thousand dollars a day for high pressure drilling and this is not will it is not able to perform those tasks of course we have no findings at all about the two thousand and eleven notices as to whether they were adequate or not from the district completely ignored or as to whether those band aid approach is the district or the trans ocean took were satisfactory on appeal they argue well it's too late to say you're too terminating now in two thousand and fourteen and you gave those notices earlier but there's no finding of waiver or the notice earlier notice we're too late by the district court a complete absence of that and certainly they're not in good faith and he kept working with trans ocean trying to find solutions to these problems at all till they came up with the improvement plan that that trans ocean promised that it would implement it failed to do so after then and he still not wanting to terminate sued them saying we're suing you so you'll conform with the contracts you'll comply with it and still they did not and then ultimately there was the last straw in two thousand and fourteen with the draw works collapsed and the dramatic collapse which could have been fatal to to the employees trans ocean said they fixed the problem then two days  getting to the root of the problem set of putting these band aid approaches on it so the drug works the certified by them in october third as working and then october fifth it fails again and in five days later the blowup preventer again fail given all the safety or failures they needed to terminate on october thirteenth they sent that terminations letter and it trying to negotiate another four years and gone or i mean despite all these problems with you it just shows the good that just shows the good ocean here that all throughout this they were talking to were fine she didn't your client trying to negotiate another four years to use the pathfinder only if there was going to go under a substantial renovation and it would not be used in the same in the gulf where it's much more difficult to drills of it ultimately that never came to fruition and so they were were always trying to work with trans ocean throughout this this contract in trying to get them to perform this is shows the good faith that we had in trying to work something out in trying to avoid having bet that's not in the record your honor but let's you know if you're comparing the the water in the gulf to be much deeper than the risk you would have to taking out they were hired to keep to a certain contract in certain a drilling wells here in the gulf they were not going to be able to perform that the parties recognize that this drilling rig needed to go a complete renovation needed to go into a dry dock can be fixed for months and months and months and it was not to be able to perform on this contract indeed the drilling will never performed again it was in such bad shape that after this they could never get anyone to buy it or use it and has never been used since since twenty fourteen it is now just a piece of junk sitting in the ocean right so the fact that we continue to negotiate to see if there was some notice a notice of material not conformity with the contract that's basically morning that we're going to we could terminate any time if you don't do your job right but didn't you owe them a follow up letter a follow up is a terminations if you don't do your job we have the right then to terminate gave repeated notices regarding the blowout preventer pods and their failures being nonconformity under the contract so we've given them that notice they have the opportunity to fix those problems again and again they showed the inability to actually fix and get to the root cause of the three and then that terminations matter under two of three it cites the failures over the last three years including the blowout preventer the curious failure of the air cure efforts over the time and that the performance improvement plan simply didn't work and  now an unreliable a drilling rig an unsafe the district court here failed to even engage on that the two thousand and eleven notice is or explain why that they were insufficient for the pass the next time trying to get to the nub of what the dispute is between the parties to see if it's a factual or legal one is your point to basically anything they did was essentially bad faith it was either incompetent or contract requires initiation after initiating the correction the district court just engaged on it well i find that the agency said they didn't issue a an actual citation there so there must have not been a regulatory violation and therefore you can't invoke thirteen zero five but of course it's a requirement here is one that transocean can't even defend them the damages methodology employed by by the district court here in the case of a wrongful termination you look at the non preach world what they would have made what expenses they saved due to determination we have to crunch those numbers here there's no finding there's no assessment there's no or performing of that necessary methodology instead the district court simply awards the standby rate of six hundred thirty seven thousand dollars a day that it is an absurd ruling that stand by rate was only paid five percent of the time during the contract even trans ocean zone witness bill assam and their director of trans ocean director admitted when he testified that the standby rate would have not likely been applied during the remainder of the year of the contract get to page ninety five sixty five it in fact if you look at the down time and the nine page days over the prior three years the every each payment over that like that of contract w five hundred eighty four thousand dollars a day not six hundred thirty seven thousand dollars a day you know ultimately the district would need to be remitted for for this district court or another district court on remand to crunch those numbers and decide what actually they would have been paid given their past performance and given the current condition of the rig were never performed again if you look at what they did they were never able to get even to anyone to use the rake as it was in such a bad condition also as we argue that they were not that morning your honour's just ellsworth on behalf of trans ocean what you just heard was a great closing argument but it's not an argument that would enable this court to find any reason to reverse the district court's decision  and i litigated its affirmative claims through a multi week trial on a single theory which was at the pathfinders level of performance amounted to a breach of contract it litigated its defense to transition you heard a lot about the earlier twenty eleven letters involving the issues that the blowout preventer experienced right after it came out of the shipyard and of course it's not uncommon to experience problems when you're moving from a shipyard environment to the ocean the main point i want to make about this is that the district court made a finding of fact its finding of fact eighty eight that the only material nonconformity alleged in the purported terminations related to the draw works not the earlier v o p letters and it made that finding a fact for a reason which is that an eis vice president of operations testified that the rights unite exercised in it letter under the contract that related to section two zero three were based on the drugs you can see that at seventy eight ninety he also was asked to confirm that the earlier b o p problems these twenty eleven letters were not the basis of the terminations and you can see at page seventy eight eighty nine that he agreed they were not the basis of the termination so in i it's coming here in its two zero three argument and in many of its other arguments seeking a do over changing its theory changing its requests changing its arguments but that's not what an appeal is supposed to do you start with the district court's finding as fact you start with the district court's conclusions of law and you review them under the applicable standard of review which is very deferential in this context the repudiation claim that trans ocean brought was successful because the provisions of the contract section two zero three and section thirteen zero five did not allow for immediate term a nation and you can see just by reading their terminations letter that they sent on october thirteenth they identified their drawbacks failure which by the way had already been  certified as repaired and used to lift the blowout preventer they identified that and they identified the yellow marks cable issue as justifying immediate term a nation the district court was exactly right to say for that reason alone it could rule in trans oceans favor on the repudiation claim on good oil field practices and i have stood up and told you that the district court erred by not giving a definition to good oilfield practice by not discussing extensive testimony about that oil field practice if you look at the proposed findings of fact and conclusions of law that you and i submitted to the district court first it never asked for a definition second it never referred to good oilfield practices with the exception of a single post finding a fact which you can see at our way fifty one sixty seven and all that propose finding a fact does is recent contractual language doesn't say anything else if you look at the evidence you outline that transmit it and i submitted to the district court pointing the district court to where it could find evidence in support of united's position you'll also find no evidence for citing definitions of good oilfield practice and if you look at what the district court did when it got to this claim it understood that in eyes entire theory was that somehow the performance level was insufficient either under the contract or under some sort of industry standard and the district court dealt with that and it explained and it credited testimony you can see in the footnotes significant amounts of testimony that the district court is citing to where the district court found that this was not a contract that included a ceiling on the amount of nonproductive time it was not a contract that required a certain amount of time between equipment issues and the reason it didn't among other things is it that these sophisticated multinational operating so that it could get paid if the rig was an operating the rate started going down and if you didn't operate for an extended period of time the rates went to zero so everyone was it was in this sort of working towards the same goal the amount of nonproductive time really experienced depending on who's expert you listen to was somewhere between sixteen and eighteen nineteen percent in eyes entire fleet of joint venture rigs during this time period had fourteen percent nonproductive time so it's not out of the realm of what you and i was experiencing honest whole fleet for all of these reasons the district court did exactly what it was required if i could address briefly the cases that your honour's asked about yesterday those cases i think draw a line that is useful to think about in this case when are there insufficient findings when is there an ambiguity in what the district  has done that requires that precludes this court from being able to assess your error and one is there not when is there a sufficient basis for this court to review the finding of you know his claim to congress claim i think they're saying are plenty plenty of findings with respect to complying with the contract the question is whether findings as to good awfully good oilfield practice you understand it correctly you're on it it's a little bit difficult i think you're right you really have to ask mr loeb for his you have that but i think you're you're right were there findings as to good on good will feel practice and so yes i think there are and you can see them in two different places if you start with what the district court said so in i talk specifically about the frame and about the state of transactions equipment and repairs if you look at findings of fact twelve and thirteen they just report found that the frame was repaired by the o e m during the ship yard period and it was certified as repaired by the company hired by ian i two weeks inspected that was my introspect and indeed that arguments about the state of transactions equipment and repairs you can see in finding a fact ten that the district court found that before the pathfinder began operations and before every well whites register again the company hired by you and i inspected and verified well control equipment and said that it met all obligations and in that regard i think it's worth noting what these well compatibility verifications are these are hundreds of pages long documents that document every way in everything that was done to disassemble inspect install replace reassemble pressure test function test and the test results if you want to see an example of one you can look for defendants exhibit two seventy one that is the one from july of tw which was before the last well that it runs three hundred pages and in that sort of occasion what lloyd's is required to do is to certify that the stack has not been compromised or damaged from previous service will operate in the conditions in which it will be used so you have all of this information that the disclosure has looked at and has assessed about the efforts trans ocean went to that end i went to to make sure that rig was ready to drill before it started any drilling operations so you're not disputing that there has to be finding you're not going on this implicit finding but i think that to the extent that your honour's think that there is any question that the findings are sufficiently specific then there are implicit findings that support all of this and the way this court has looked at implicit findings is essentially to to fill in the gaps fill in any gaps where it's clear what the district court was ultimately intending to do or what to drill when there was a problem trans ocean responded to the problem it's solved the problem it got the rig ready to drill again and in fact this rig did drill it was engaged in thirteen operations on to on twelve different well tens of thousands of hours were spent on the operating rate actually engaged in in drilling work so the mere fact that there was a higher overall percentage by some small percentage than then  wanted wasn't enough to find that there was a problem with little oil field practice and again i note that you know i wasn't asking for a ruling on what good oilfield practices meant the way this case was tried to the court  both parties presented experts and witnesses who talked about what had happened and then they were asked whether that in fact didn't comply with good will still practiced some of the testimony that the district court cited in its findings of fact you can see th if you look at the findings of fact fifty eight to sixty and finding of fact eighty eight in particular their district court site some testimony from transitions expert pair and roller mr roller was asked these are these are questions that are in the efforts to conform with good oilfield practice answer yes in my opinion and having worked in this area for a number of years i believe they were commercially reasonable and used good oilfield practice he goes on question this is also cited in footnote forty eight is a good oilfield practice to do testing and repairs as trans ocean did answer yes absolutely it is a question is it good enough for practice to involve the oh yeah just as trans ocean did answer yes that is definitely good oil field practice to get them involved on complex pieces of equipment and i could go on the district court understood that there are good oil field practice and their contract claims overall relied on this theory that somehow the level of nonproductive time was too high in the district court said no the district court said in its findings of fact excision in its conclusions of law that at excess of nonproductive time not maintaining equipment in good condition and short time frame supreme equipment failures couldn't support you nice breach of contract claim because the contract contained no performance promises of specific amounts of operating days drilling time or drilling completion and that is used as a whole is now conclusions of law sixteen seventeen and twenty one viewed as a whole the contract showed the parties clearly invision that there would be equipment failures clearly envisioned time needed for replacement and repairs and trans ocean receive the required certifications and verifications so  minimum the district court implicitly concluded that there was no issue related to good oil spill practice we think it's explicit in the decision itself but the extent your honour's have any questions it is it is very clear that the district court this court in reviewing a damages ward looks at whether the amount that's awarded is a reasonable approximation is it plausible in light of the record as a whole and it doesn't reverse even if it might have come  i suggest in his reply brief the transaction is making a new argument about damages and i want to be very clear about that because we're not this is the same argument that trans ocean has made since its third amended complaint in its  three and fifty four where trans ocean said that it was damaged in the amount of its contractual day rate from the date of repudiation through the end of the contract it also said that in its summary judgment roshan and those are the two things that  showing this is a new argument and transaction summary judgment motion and again set it at are always thirteen eighty eight trans ocean would have received the day work rate through the end of the contract period april twenty one twenty fifteen and in the absence of instructions the applicable day rate was to standby rate what the district court did is what this court has instructed courts to do and has said is consistent with determining expectation damages the first place you look at the contract does the contract give you an indication of what the parties expected for performance and the answer here is yes the contract sets out a day rate that applies if you and i for any reason decides not to issue instructions and maybe it's having financial issues that maybe it wants to it's lost its lease hold it may be that it wants to dedicate priorities elsewhere for whatever reason if he and i chooses not to issue instructions the standby rate applies that's what the district letter and his calculation he titled the cost to suspend operations now he used the operating rate instead of the standby rate but the number he came out with that was one hundred twenty four million the district court's number was one hundred nine million involved less days and the district court used the standby rate which was two percent last then the operating rate and in fact being conservative the district court used the standby rate it was as it was originally set out in the contract that was roughly six hundred thirty seven thousand dollars a day mr chen tori's e mail shows that even you and i recognized that the amount that was awarded here is a reasonable approximation of what you and i would have paid trans ocean and what trans have received had the contract been continued you know has also suggested that there was an issue with whether whether trans ocean was ready willing and able to perform and it has impugned the district court for citing only one thing which is trans ocean it's letter back to you and i in response to this purported terminations letter saying hey guys we're here we're ready to keep drilling you can't just walk away you look at that letter and you look at the entire context of the just the course decision in which it has rejected and i's contentions that somehow the level of nonproductive time was too high and the only reasonable conclusion is the district court was exactly right trans ocean was just as ready willing and able to perform on october thirteenth as it had been on october twelfth as it had been october eleventh there was nothing that changed its position it had rented the red to someone else it hadn't taken its personnel and gone home it was there it was ready to follow  law forty three the second and third are related that in two thousand and eight when this contract was signed the market was at its peak it was really a essentially a buyer's market for companies like trans ocean because there were no rigs in twenty fourteen the market was dramatically different there were many idle rigs out there and there was not an opportunity but not for lack of trying that that trans ocean was not able to  someone else to use this rig it wasn't due to the condition of the room there's nothing in the record that suggests it was due to the condition of the rig and the district court i think made a number of findings that are useful here one is that the mitigation efforts were engaged in and could face the second relate to the guy on a contract that i believe your honor asked about earlier you know it self was looking forward to using this raid for four more years if only the government had signed off on it there was nothing that would have precluded this raid from  months i was curious as to whether you're still have that practice i may not know exactly what the practices that your honor is is describing but i have in educating myself about this industry as a newcomer to it i spent a lot of time trying to learn about preventers now as mr lopes said they are five story tall extremely complex pieces of machinery operating in very harsh environments and it is not you know it is not the equivalent of a flat tire or getting your watch pattern where they are contract it does not require the termination letter say anything other than we hear by terminate were things need to be identified is in the notice of material not conformity and clearly that was done also if you look at the letter that was provided on october fourteenth it doesn't just talk about the drug works it talks about the three years that preceded that including all the failures of the blowout preventer and the and the failure under the performance improvement plan zero so the district court was  the district court discusses did also practices this is what it says the parties do not define good oil flow practices and that set you don't know what the judge has done the judge's job to actually interpret it and then to apply it we have none of that in its opinion for maintenance repairs diagnostic testing operations it's not just commercially reasonable yours is the highest is the gold standard for operation of in the oil field world and we don't know what the district court thought about any of the particulars we have two experts paul diaz at eight one two two and greg macgregor at seven three three zero testified that the use of a bent bow opera vendor frame was not good well for practices sure you could bend it back and get it certified but they said this is the using it at to splice and response that key critical equipment and they have a baby under a low pressure so it would even work that is not good of practices unbending clamps and reusing m d s testified in seventy nine to two not to go out for practices was some corrective action taken here or the things were certified that doesn't change the fact that we have an absence of finding what the discord even thought it meant to have a adequate correction under the contract and here we have failure again and again and again of the same key equipment and you have a trans ocean's own documents of showing that they recognize they were never getting to the root of the problem we don't we don't even know what the district court thought it was saying when it's initiated correction