exposed to land based machinery should be allowed to recover and those exposed to asbestos from the same machinery on sea should not be able to recover in the interest of uniformity since with the n d o court in the denial of summary judgment in these cases the reason that you don't see those cases in the circuit are because appeals from the denial of summary judgment are not final words so they don't get to the circuit that's why there's really only for the lower court to consider negligence we did through a brief case in the in our previous brief we certainly did not intend to weigh that but we also didn't want to repeat the same arguments that we made and just copy and paste our previous brief we wanted to address those arguments the court we thought wanted addressed in terms of negligen to to address the question that you addressed to me a year ago you asked me is this a strict liability or negligence and my answer was yes and we your this really is a crossroads case because the negligence principles that we know of a jury and foreseeability really apply to the for to a claim as well because what we claim is that this is machinery based on the case law probably negligence and doubt certainly is but first in the in the record we have lots of documents saying that they knew they knew they didn't want and don't have as i understand your answer any case under maritime law that is recognize this type of exception to the mere dead bare metal defense on a strict liability theory i'm unaware from i've researched them i'm not aware of them but perhaps you should be the  product safety and they have a continuing duty to warn and trying to improve their products to make them safe and i think that the policy when you think about it in terms of the large machinery that goes in power plants and on ships but that policy comes into play here but part of the problem though is what is there what is their product you know part of the problem is if it leaves their plant without the as best this in it but it's expected it's going to contain as best this should be held liable for what's what's to be expected and you can see that perhaps better than that from a negative standpoint and again from  products liability standpoint yes i would concede that that's no on the other hand that that's not such a good question and again the answer is what is the product in this case and the answer is it is the products that we're really talking about is those manufactured products you're talking about the assembled product yes the symbol product that requires those asbestos where parts in order to function to special specifications what would you these i should say there's no report of any trial in the case but the injury is that the government specifications defense is an affirmative defense it's they have to prove it we've got me by the evidence to doubt it should go in front of the here's the problem happen on uniformity aspect and i think that is a policy consideration that comes into play in maritime on particular and that is that you have all of these as best this case is maritime cases coming out  defense is wrong what is the test then for liability i'm glad you asked me that because that answer is when a manufacturer of machinery places a product into the stream of commerce with asbestos where par different then with their mental defense on templates what is the policy reason to do that well the first as under under maritime law protection of the sailor is more important than uniform that number one policy this protects sailors best number two it makes manufacturers more responsible for the safety of their products the manufacturer the larger product should not be able to walk away from it once it's sold when the life of that quad acct is twenty years or more and that these asbestos ware products are going to have to be replaced fairly often and the case of the insulation on the turban term is going to be inspected once a year so you've got to somehow move that insulation so that somebody can look at the turb the third thing is that by imposing liability you allow the fount finder to were closely a portion liability between the manufacturer of those asbestos where products and  components into its original product and to the defendant specified he said as best this containing replacement components were such components were essential to the proper functioning of the defendant's product to meet that interact and last ed like to address the various tests that were discussed at the end of this from ayers argument first of all with respect to uniformity uniformity is important here at multiple levels you already between the third circuit  form of the among district oh it's as you know one district court decision doesn't even bind another district judge within that same district at the circuit level which is run by and all courts within the circuit within the sixth circuit and obviously what you wrote bind all courts within the third  heavily because we are not undermining the interests of the say or the interest of the say or does not mean maximize for the tree and in this case interests of sailors can be protected their respects to trust fund that can pay out hundreds of thousands of dollars for the injuries it is true that many of the expenses manufacturers have gone through bankruptcy some have emerged from bankruptcy so we're not leaving say words without a remedy but the harm to the uniformity interests of maritime law and the predictability and consistency interests of maritime law cases of surface to surface but i don't think that that is necessarily true given the long wait and see period for these it's best it's related diseases that these deaths cases are still coming and many are filed every single day so there is very much a future circuit which is where it's applied it is consistently applied to extend to negligence claims and what you're being asked to do here is to create a circuit split which is the opposite result for courts within the third circuit the other the uniformity point that i want to emphasize though the tests that any other related to the fact that this particular case with respect to the rule saying that a manufacturer steps to hide the use of especially this is simply another way of saying that the manufacturer had some reason to think this test this would be used but that it this function as intended by the intended consumer only function if that is the only way we function are you saying that no you weren't there but you have no duty to warn and one of the reasons is the the intended consumer will have as the navy  preferences and options that change over time the navy might have specified when these defendants acquired their equipment that at that time it was it wanted to use a specified as your government contractor defense i'm talking about i mean facture decision making no but i'm trying to answer that the manufacture decision making level because first of all the manufacturers here didn't decide to specify a specified the navy specified and second of all the manufacturers didn't know ten fifteen fifty years down the road a straight the problems with these sorts of specified orbit choir tests which really are contrary to fundamental tort law outside of these festus contests imagine that you had it bought back my daughter's battery operated but children's toy it will not turn on without batteries installed it and it is supplied by the manufacturer with batteries and salt that's as we all know batteries can have a tendency to leak over time and in changing out batteries you can get hurt weakened battery nobody would think certainly no state court which i'm aware has held that if i later replace the original battery with an identical battery to the one manufacturer supplies and that battery in weeks the point and you factor is rideable for that injury and the reason for that is that the toy manufacturer didn't control my later choice to put it in a different battery the same battery to retire the toy then riddle me to find you can control my choice to do that nor did the original manufacturer control the battery manufacturers decision to continue making a battery that might leak and so as a matter of basic tour precedent as a matter of the fairness inherent in basic tort law holds as a matter of state law that the twin in factor is liable in that situation and not my analogy here whether or not the defendants knew to some degree this best this would later be used the undisputed facts are the defendants here are not the ones who supplied the specificity actually injured the point if they're not the ones who made the choice to use that they're not the ones who had the incentive to create a safer product which over time  you look at as a duty inquiry traditional portlaw says there is no duty to warn about somebody else's product if you think of it as a proximate cause inquiry which i think is another fair way to look at it the proximate cause of the p injury in a case like this is the decision of a waiter user and a waiter manufacturer to use assessed either way it leads you to the same result there is no theory under which could recover if a manufacturer made a piece of equipment it would only work with this dangerous i am under those circumstances there is no obligation to warn the end user hey this is dangerous i am is a danger sign your point of view there should never be a duty given warning there should be a duty to warn with respect to your own product so what is the use of that component part was was inevitably had to  on the way the product was so that case me back to the toy example i don't think that in that situation the toy manufacturer is required to warn it would be held liable for not warrant saying about a waiter battery replacement original drain it had x from the original degrees case that buffalo pumps in the early one nine hundred eighty s was moving away from the use of the stuff this and wanted to no longer supply as best as to the navy the navy at that point made the decision that it wanted at that point to continue to its so there is no such thing certainly not in the context of a long lasting product on a ship like this as the inevitable use of this festus in the future the manufacturer simply does not the other elements of a negligence test are satisfied and so for example in the case of a turbine if it were some part that turbine has a propeller in the propeller has a sharp edge or something you might have a duty to warn about that setting aside government contractor defenses rating like that you have a duty to warn about the things that you put into the stream of commerce because those are the things that you can control that you can make safer and that you directly profit from i didn't how do you reconcile that with some of the key so let's talk that in economic and out of an economic reason to keep them both equally responsible a couple points in response to that first of all that would apply equally to the toy example the twenty factor has an interest in making sure that their batteries are bailable but nobody  laws make sure that people aren't injured in the first place then why isn't there do you want in this circumstance where the product goes out into the stream of commerce with a dangerous item why would there a big buy way in this product there is a stuff because the duty to up first of all do you want attaches to the manufacturer that actually has the ability to control the contacts of than any factor the cause of the injury which may be a separate factor if your question is why wasn't there a duty to warn in this case with specified that was originally supplied that's not an issue that that's presented here we have of course defenses to that including the extent of the manufacturer's knowledge about the dangers of the status at that time of calling the private sphere having a legend that was a misrepresentation nor did they satisfy the elements of it because for a negligence claim where we're talking about duty running to a particular individual or particular any the relevant entity would be the navy and i don't think there's any argument that the navy was relying on the defendant's representations about as fast as i did i realize my time is expired if i could briefly touch on negligence versus strict liability because i think it's an either or i think it's an important point negligence in strict liability theories rise and fall together here because the common thread for both negligence and strict liability is the defendant can only be liable with respect to its own product and so for strict liability purposes if the defendant puts a defective product into the stream of commerce it's per se liable and that's true good god was a rather the point if was ever in privity with the fund for negligence purposes you have to have pretty in order to have a duty and you have a mental state requirement in terms of the duty of care but again the duty of care only attaches to one's own pockets and that's the fundamental thread that i think ran through these cases from connor through the opinion on remand from this quarter earlier that negligence and strict liability rise and fall together because a duty attaches and strict liability attaches only to the product that the manufactur put into the stream of commerce has the ability to control later and has the ability to make safe just one follow up question and that is based upon judge rubina's understanding that under come to a different conclusion he did come to a different conclusion under pennsylvania state law but again this is of course maritime law case where the uniformity interests the predictability and consistency interests all matter greatly thank you thank you think i think that it is much broader than my opponent has has advocated but i think the judge now sees question about what is the product in this case it is a really important one because the answer is that there are multiple products and you have to think about the one ward product as well as its competence and as we are components and i come back to the touchstone of foreseeability product the product is the large product and that which is going to inevitably be replaced in his example of the batteries batteries are generally not regarded as dangerous and even if they we they're not regarded as dangerous well i've gotten some of the leakage on my hands sometimes i'm still alive and kicking and probably nothing's going to happen to me that's not true with asbestos