judges create meant of a statute and the limitation of liability defense which we raised in the court below our appeal calls for your honour's to conduct a dyno review of the federal statute and the motion for summary judgment entered below in which the district court found that pulling a seven and a half foot metal tube which doesn't float constituted towing such that my captain was required to possess a towing license why it's just a question of statutory interpretation subject isn't this a question of the jury instructions given to the jury be the court during at that point and then again in the liberations in response to a jury's note that this this was an act of towing and the captain was required to have a towing license just  procedurally you brought the motion pretrial correct i did denies your motion and sue a spot found the reverse of what we were asking but then it doesn't come up again until you're on direct with only excuse me is that that's where the jury hears anything that could be affecting its assessment of limited liability well we put on a substantial evidence that this this active sonar surveying was not towage in any traditional want and then my point is to to assess what the alleged error is here it would seem to me it's an error of instruction to the jury and it is i would i would agree ok so if it's that would you also agree that when judge afric said you can't go into that direction you just asked the towing license if he says no where do you object at that point is your question procedural did we have a pending objection yes we did when we brought our motion for summary judgment if you're relying on just to assert that you objected to the instruction he gave your stating that his ruling against your pretrial motion preserve that at the evidentiary moment i did and i think we were clear on the record i would have to find it in the transcript but this came up i specifically said when we were during the trial when we were arguing this issue and the judge had given a special instruction to the jury based on his pretrial ruling i said your honor we have never waived our objection to how you are but what you're not if that's what you're stating that was in answer to a jury question on february twenty fifth that was during the trial and then again in response to the question all right i don't remember that and i look pretty closely at the record i didn't i remember him saying well whatever the truth or right or wrong of this legal issue he did this is during the testimony the judge said you're free to argue whether this had any effect on the accident and then you went ahead you said fine and you go ahead and you inquire further and you  t from paris and you elicit from this gentleman and then from the guard don't it seems almost a consensus that the jury heard that even had there been a towing license it wouldn't have given any instruction is to subsurface  i guess i'm wondering two questions well i think when the judge if it if he didn't make himself clear before he instructed the jury in response to the question and i agree and i don't take the time that to me is the only place it's preserved that's just my view at but that's really a vital moment so i intend to ask opposing counsel about that to do you remember with the nature of your objection then lies that the nature of well the jury ask whether this was told you know whether the captain was required to have a license and whether the my client management the vessel owner knew about what license he had three asked the question then is the answer then he says objection by international you respond we reserve our objection to the courts with all due respect underlying ruling and we don't mean to acquiesce in that ruling but with respect to the court's answer to that question we view it as appropriate view but what how was judge africa on notice that the answer wasn't correct if you said with respect to the answer up several times we repeatedly were on record that we did not believe this was towage and and if you thought that that pretrial ruling were sufficiently emphatic to be an objection that doesn't require you to object when the witnesses testifying or to to clarify further why is it that you asked the witness him self does he need in telling license if judge africa had made such an emphatic ruling you didn't even need to preserve an objection why would you asked your witness does he need a telling license on a trip change the judge's mind because that's what i believe i did change his mind then you're out of the narrow line of authority that doesn't move fifty one that doesn't require you to be really clear with still say that's an absurd construction yes that's the reason we would find that he committed legal error on the because it's absurd in other hypotheticals now because the statute in question that captain must have a towing license and we think that that's an absurd interpretation of that statute in light of ninety years of barge and when our court talked about dictionary definitions it did mention the oxford english dictionary that it's just polling i don't see that that controls never say i understand it would be nice if we had a president thought the issues just is jury instruction correct if not did it implicate or prejudice your limited liability argument and that is our appeal it did because this jury was instructed that  the owner had knowledge of the apps and the lack of a towing license and we think that it couldn't be clearer that the jury's thought process is reflected in that note to the to the court where the district court did you say that issue whether he should have had a license was a jury question that gets back to my point i thought the primary argument thing here is it's want to statutory interpretation it's a question of law but you're at the same time saying that's a question to submit that to the jury well we what we were saying is when we brought a motion for summary judgment finding that this wasn't towage and the judge saw fit to deny that at that point he should have let it go to the jury there was no pending motion the other way there was no pending motion to find that this the act of polling  constituted toing but that's kind of water under the bridge what we're saying now is that the court should not have instructed the jury  he and he couldn't get that license through a career of sonar surveying the active sonar surveying then qualify him for a license and getting a license by doing the things having the expertise in the training that is necessary to get it handling vessels stability of the tow safeguarding the vessel you're pulling that would not give him any knowledge with regard to sonar service record doesn't confirm whether coast guard body for some action against the captain doesn't know so so although people are speculating and give hypotheticals both sides we don't know what the coast guard's view of twenty one no one is doing in this record  for us to announce we interpret twenty one one two wire total licenses would be very consequential and very little record but to say the opposite i think would be just as consequential that twenty five thousand foot cable being towed subsurface you'd think you'd need at least as much licensing is telling a large for towing something thousands of feet behind and under the boat so i guess i keep trying to wonder why are we being asked to make a legal opinion when really we should just assess did his jury instruction alter the jury's assessment of the limited liability question before them and to get you to question as i thought judge effort said as to that issue what international management knew or should have known you decide mr clements keep asking about that so you got every single witness to say this license wouldn't made any difference even if you needed there wasn't a witness who didn't say that so i just don't see where they were m was not in their hands to weigh that evidence and instructed the jury that the captain had to have a license and to give that instruction he had to conclude that this was an act of towage and we believe that's a mis construction or an absurd interpretation of twenty one zero one forty which doesn't make any reference to what it is that must must be getting old to constitute ton the i'm sorry you said something about how the interpretation is absurd because the statute doesn't refer to what's being towed yeah it doesn't say what's being towed and common sense isn't that why the district or do what it  did what does not explain that is towards ruling it's not limited to tell me about well you don't think the judge ought to ignore ninety years of germs  vom the us supreme court this court in the context of different factual scenarios always said that the act of towage involved expediting into any of that he says if you're pulling then you need to towing license if a commercial speedboat is pulling a water skier does the captain needed towing license to pull a water ski or if it's a charter boat there's a captain who's my down well you have time for but you can you can borrow from that if you want i didn't mean to cut well but my pony is going to get into a whole new issues well i doubt it because i've got some questions in that direction too but why don't we see what they have to say  i want to address is the limitation of liability question but i want to address it from a different perspective and international council and the what the point that i would like to make is that the court is correct that the legal issue of whether or not there was this was a towing vessel that required a towing license that a captain with a towing endorsement is beside the point here because the evidence is overwhelming that international had both knowledge and privilege to the negligence that was committed by captain lee q and to the u us he didn't have it which suggests that the action that the jury thinks is the cause of the accident that the management would have to be aware of is precisely him being unqualified because he lacked the license that maybe he doesn't have to even so it's how can we say that we know that that wasn't a factor in their decision the question tells us that the jury was asking the question it was trying to figure out what role this lack licensing or absence of a license played in the limitation widebody question and that was the right question for them to ask it was important that they understand it but they had more than two additional hours pages long health tesla or shell focus and on the lack of a license as a basis for the captain's being unqualified i believe they did your honor i don't remember i have no absolutely the argument was made because the jury because the judge had made that ruling but even setting that question aside even if the court the question before the court is when did the juror does it have to reverse overrule the jury's finding on discipline and defense and it actually not only does it not have to do it it would be unreasonable for this court in light of the evidence the just abundance of evidence about knowledge and part and privity that international knew that it had hired someone who was unqualified who was incompetent who had no knowledge no background no information no training no licensing that would allow him to do to perform know what to do in performing this particular church he didn't know what he was doing and he was doing well he was doing what his port captain told him to do which at which was to do whatever test of size but of course he was the captain of the vessel and he was operating vessel bands were he that's right but he he was he was the captain it's a vessel judge and he was obligated to obtain the information he needed to be able to safely do his job he was supposed to be operating that vessel which includes a very long tail with a very big piece of equipment capable of of of committing nine million dollars in damages and about it but he had the obligation to figure it out the problem is that the coal rigs coal reg number seven if i can take a second behind it because i have it close by the lack of knowledge is no excuse he has an obligation to stop and go get the information he needs if he doesn't know what his risks are if he doesn't have the information he needs he get it and then let the lack of information is no excuse and he's not under coreg number seven and coreg number eight which we cited in attached to our brief but i can't forward figures on that right concluded that a fishing vessel come in gauged in towing did not have to and the reasoning there was that the language in forty six u s c twenty one zero one forty which is where no choice but to apply the law to the facts that were presented the evidence that was presented in the context of a motion for summary judgment international asked that this summary judgment that this issue this legal issue be  evaluated and determined and the judge made that decision and as a result and he had if he was given facts and he was told the district court was told that the parties agreed if this was a t vessel then there had to be a license he did not actually reach that issue he had he was told by the parties that that was the legal ramification of the decision this was a towing  jury question and answer i did not judge because i think that this is a cautionary instruction i think the facts here were pretty extreme the judge had issued a ruling and counsel for show knew on the day with this mr finn fancy only he knew what the questioning that was coming and counsel for shell stood up objective let the court know that he thought that the questioning was about to countermand being his ruling his prior ruling and he instructed counsel for international not to ask the question he warned him not to cross the line he advised him it happens sever over several pages and finally when the court understands that the question is going to be asked any way he stops and he asks the only question that that the expert can answer and the question is did he have a towing license a towing endorsement that was the only question they get that could be asked and answered in light of the ruling about the law the pilots who are licensed as he wants fisherman the implication being that people out there are hiring folks without towing i think it's entirely possible that that's true i also think that the truth of the twelve along with the information that the vessel of the nautilus would only be operating in this area until august of two thousand and twelve and this survey was being done in november  right right it was pretty obvious but the information about its anchoring system was in the store in the computer on shore and it was not the that information was not loaded into the computers that went out because the people on shore believed that the nautilus had moved on had completed  at we have not asked that the court shift one hundred percent of the liability to international because we know that the evidence that was presented to the jury was such that the jury would not only here on limited liability we're actually here on the second issue which is which is where i'm going into the allocation of liability there if we accept the way the parties afraid that this is a question of staff jointer predation and this circuit has to pronounce here after commercial fisherman forever have to license not if that's before us their argument is in spite of the plain language the absurd consequences mean we have to insert the word of two questions am i right from reading somewhere in the briefs that in fact there's a pending amendment to put the word of if you  because that had not actually happened yet the court could not consider that as of the last so that's where as far as i know that's the only place i've seen it that's the whole idea what the coast guard thinks it's just not in this record there was no have no no reason at all for him to resist the court's effort to get that information it could be layered i'm fascinated by it but if if they submitted a view on how to what the statute means  here's a hypothetical if every pilot or captain of a boat had to have a certificate from alcohol anonymous they passed if the judge said that's the law but he was wrong and then the judge said he alcohol anonymous to pick i think i think the answer would be it depends entirely on the context where that whether it would be reasonable to infer depends upon the contacts in this particular context the amount of evidence that's really he hadn't gotten the license what he would have learned is that a the captain of a vessel that is towing anything is required to make sure that his toe doesn't run plea at the testimony of captain accuse the captain of the vessel on pages sixty six fifty four three sixty six fifty seven it's three four pages shell is asking him what does he know about his obligation what is his responsibility with regard to this toe and he just point blank refuses to acknowledge that any role to play in that it is beyond clear that test was responsible for the survey that was going on they could tell had had hired the boat that was doing this work and test it was responsible for when it went in the water when it came out where it was in the water but the captain to the vessel was the master of this vessel and he had an obligation not with regard to what  so much but with regard to what was happening on his vessel and how that was impacting the world around him the coal regs which are the international regulations for the prevention of collisions at sea the  analysis used by the mount court was really right on point and the reason what the court said there is that if you look at the language of a forty one a one or twenty one to one forty is that if vessels were not providing the service of pushing or pulling the pushing or pulling and hauling aside was an incident incidental to the service they actually were engaged in and  right right and in that particular case they would they would use the fishing the fishing vessel the haul the fishing net and fishing in cages they would they raise fish inside of cages and they would have to move the cages around every once in a while but the hauling and the pulling was incidental to the stitching the cotton the commercial the commerce involved there was fishing in this particular case there's a contract and the classifications at the same time people could precisely and so it can be that that classification is what is an option multiple classifications i guess is is possible  before i close this is a cross appeal and some of the things that my international council are about to respond to might very well be some things that are i've never limitation of liability defense we ask that the court change the allocation of liability to fifty fifty we've we've explained why that is the current allocation one forty which i think that leads to one absurd result and if i could talk for a minute i could i think this is this is pertinent to several issues raised on appeal what this operation put their their control shack the doghouse control shack their technicians on board the stern cargo deck to to run the sonar operation i submitted a demonstrative number one this morning because it's simply a clearer picture view i was trial exhibit twenty eight has been copied so many times what appears before you when the record is dark but the point of this is simply this is a screen shot from an easing that have that is the piece of equipment the test report in the wheel house of the international fund they set the head and numerically on this demonstrative it's seventy one point seven and there is a little yellow arrow which tells the captain how close he is to following that course and under the charter agreement the captain is obligated to take these instructions and follow them and he is given by task and easy now have a computer to do just that that there's nothing the captain could not if he got a towing license know anything about a quinsy unit or a code system which tells the which would tell the observer just everything well you know the judge looks at the jury and says you heard all that evidence but i'm instructing you that the captain needed a towing license the very next sentence he says but that doesn't mean anything about what international knew or should know you've heard the evidence and that's what you have to decide i don't know how a rational juror could could separate out could could could see around the instruction that the judge gave more than once that the captain needed a towing license ok let me my opponent did this and let me say what we are asking for in this case is not a new trial on liability not to upset the jury verdict as to