majestic blue and we sort of we did the garden in this case by dismissing the lamentation appeal and basically we're down to two issues and the first issue is the award of prejudgment interest on the damages both  waived the right to prejudgment interest by not seventy the issue to the jury and asking for a separation from the jury of the past losses from the future losses and the second sub issue is whether the law and that even though the jury tried all the issues a judge could award prejudgment interest without any breakdown of past losses and future losses in other words some issues or try to the jury in some issues or try to the judge but who makes that be tried to the jury there was no reservation of any issue to the judge and the case was tried on the basis of pretrial order nothing during the trial and mention about prejudgment interest and up to the jury's verdict the jury was interest and i think implicit in the whole thing was that the judge felt that he had the right under the definite high seas act to make an award prejudgment interest on the wrongful death damages but that's not the case either he should go to the jury and at a minimum at a minimum we should find out what the past losses were and what the future losses were because when the economist gave his testimony and the jury followed the economist recommendations to the one point six million on the loss to support one point four million a loss of services to the penny and so but the economist only gave a lump sum award for both past and future losses and he discounted the future losses to the time of trial so there's no doubt about it that future losses were awarded and pre judge an interest was awarded on future losses which is contrary to this court's decision in the columbia brickworks  allows the personal representative to bring a lawsuit on behalf of the spouse the children mom and dad and the dependent relative the jones act by contrast has classes of benefit fisheries to the of other classes so that if there's a spouse and child no one else recovers and that's what we have here and in my mind and i'm going against ninth circuit that tries to claim under the death of the high seas act because she would really want this under the jones act for her or herself and her children but under the nice circuit precedent i think the cases piece p e a c it we and the reason is way we relied on a waiver because if if we had notice if we had notice that the case was going to be that prejudgment interest was going to be requestion we would have asked the court and the jury to for prejudgment interest based on opposing counsel's representations during the pretrial conference stage i didn't try the case but that is my understanding that there was no the impression was that no prejudgment interest was being question and that impression was based on it was a jones act case and on under the jones act case it was that but specifically when we go back to the record to to follow up on that claim that counsel led you to  ok so what is the rationale for the other rather let me tell you the question i'd like you to address because there's a supreme court case that talks about the role money well our defending in this case and so in many causes money to do it but meanwhile we're able to go out and use the money we don't have to pay and there's so there's an opportunity i'm not saying that's happened here i'm just saying there's an opportunity for the court to decide in the whether and the amount of pre judgment interest to award what the conduct of the defendant has been whether they've dragged the proceedings out they've fought every step of the way and so on how was the jury supposed to consider that all the well what should have happened here honors economist should have testified as to what the losses were in the past which prejudge an interest should be awarded as of the date of trial in other words what money did was  widow out from the date of death until the date of trial but as to future losses that have not been incurred pre judgment interest you not be awarded that would be unfair that would that would be money that still is not due to the widow it's been discounted to the date of trial but it hasn't been lost yet and of course you would know that not have had that money yet though you're saying the damage award in this case was past and future not differentiated but that's the that's the range of the damage award that was made and when the district court applied the pre portion or you to portsmouth to the jury even odong wanted settlement case and was not there at the time of trial you had an answer share you could claim on but we didn't have an empty chair that we could claim one because the judge had already ruled that don instructions they first when they first went in they offer destructions would then they realize that if majestic blues was going to be responsible for don juans negligence all plaintiff had to do was tell the jury that and say you  don't need to apportion here ladies and gentlemen a jury one hundred percent majestic who is liable for its own negligence and for don juans negligence so there can be no so there's no effective right and you cannot wave a right you don't have and that's what e where it says majestic blue this is page e r thirteen made the strategic decision not to pursue the strategy of asking the submitting this question to the jury that you ha sufficient time following the settlement with long to adjust the case but chose not to do so so now it can't be heard to complain about it how do you respond to that well yes every decision trial history teacher teacher decision  and this strategy was if we went in and argued proportionate force of the jury it just rebounds to us and makes us look even worse how i mean how can we of course we can from point we can complain because the judge is offering to catch twenty two going to argue a portion of it but guess what you're responsible for don juans negligence that's that's what it's it's about the only one i can use for is absurd but the question maybe we all have was there any discussion of the dilemma before the court so that the court could work of a way to get the jury to decide that don juan majestically who was responsible for don why would they be told who would tell them the judge already did that the judge read his findings of fact in conclusions of law at the beginning of trial and sa much you know i'll give you a good morning your honour's may please the court i'm scott wagner representing amy hill pelleas in this matter and i hope to discuss this morning one why the court was allowed to determine in title meant and rate with respect to prejudgment interest to why the court did not abuse its discretion in applying the rate of six percent for prejudgment interest and three why majestic blue a ship owner was not entitled but it's a pleasure to appear before the court i don't know if the court knows but today is actually the anniversary of the sinking of the vessel to the date seven years we appear here today your honors and mentioning the three points previously in our response brief which which we think merit your attention but we believe the utterly decisive point that we would like to highlight today in an oral argument that really permeates through the three issues that are before the court on appeal is the inclusion of the dosa statutory cause of action in this case which we think is the clinching point for all three of the issues first why the court was allowed and intitled to hear the pre judgment interest in quite frankly i think there was some issue before about whether they knew that the pre judgment interest was going to be put before the court i would direct court to the trial brief submitted by the plaintiff in this case it appears a documentary for twenty page twenty nine of thirty five of section five of your honor's and it specifically talks about the district court not the jury the district court having discretion to ward pre judgment interest talks about the issue i would like to note to the court that majestically fisheries in its trial brief did not mention pre judgment interest at all after the trial brief was submitted we then had a joint pretrial order and ultimately ordered joint pretrial stipulation proposed order that ultimately was memorialized by the court in its pretrial order under which the party stipulated that the case would be proceeding in admiralty that allowed the judge to have discretion to go back and determine both entitlement and rate post trial that was a stipulation done by the parties i think that's makes  e issue markedly different from a situation where you have a jones act case and a plaintiff is compelled to unusually exclusive decision of a proceeding at law or in admiralty the presence of the dose a claim here permeates this issue and allows the court to reserve its discretion on both entitlement and rate as it relates to prejudgment interest it's very clear that this is she was before the  court in terms of the trial brief it's very clear that the court reserved its right in admiralty to make that determination through of joint pretrial stipulation order it's also very clear that the plaintiff specifically did not submit this to the jury this is not a situation give us the pretrial order i have here as i believe it's s e r eighty two i think it's a point i'm not sure exactly what point but i can i can i can tell the court  yes i am your honor and further down the road in the facts section i believe at the very end of the facts section it talks about prejudgment interest and in the trial brief section five of the plaintiffs we talked about the district court having the discretion yes so i think what was happening there was not a discussion at the time in fact majestically never raised the issue in a trial brief and never put the issue before the court there was no discussion about it but glyn i think is markedly different based on that admiralty whereas in this case because the dosage claim is involved the claim proceeds both through injury and also reserves its admiralty jurisdiction to the bench it's very similar what happened in snyder versus what occurred the fifth circuit case that we cited to the court and it's an exact almost similar situation to crewmembers who perished on a vessel that sank and almost the exact same issue comes up i think that the question before the court that was not there in the land but was there and what it there versus snyder is whether the court is seized with admiralty jurisdiction i think in case where the court is perceived that law the judge simply does not have that fact finding power after the case to award pre judgment interest but in this case because it's there and because the parties stipulate that it's proceeding in admiralty the court still has the power sees with the admiralty jurisdiction it doesn't make when bad law it just makes going different from the case that proceeded before the court in guam for my settling defendant you are required to put that defendant on the verdict form put a line in front of the jury and have a jury apportion fault and i think it's very very clear in this case and i think it's i understand counsels are even a little bit better than i did when i went through the brief is that yes they made a strategic decision but it in a sense but that was really driven by the fact that it wouldn't have been one of them any good in fact w just make them look worse had they submitted what i think they originally contemplated which is a special verdict form that had some i contemplated abortion a fall because the district what have you told the jury anyway that  just responsible for anything done on it that's a little bit broader than what actually happened at the district court the district court did not say i'm going to impute all the negligence of majestic blue  said on the issue of knowledge of pretty and knowledge did don juan have some knowledge and with that knowledge be attributable to majestic blue is different than saying i'm attributing all of don juans negligence to majestic but that wasn't before the court the jury was not instructed on the fact that if don juan was found to be negligent then majestic blue would answer of that that was not before the court what was before the court was whether some of the knowledge that don juan had was attributed to majestically that's a far narrow issue then to say they're completely  negligence is just sort of a pastor thing because that wasn't before the court and i'd like to mention to the court because i do think it's important what majestically said at the time and what's being said now because what they had said to the court earlier was the reason and i quote this from docket entry five fifty pages three and four that had don juan not settled the jury would have heard a case against don juan and would have been able to determine proportional fault and they reasoning that they said was well don juan settled on what they call the eve of trial it was a few weeks beforehand and they just weren't able to prepare a case for proportional fall that's the reason it didn't go forward what they say now is something different which is to say to this court oh they couldn't apportion for fortunate fault when they really told disha court we could we just were so late in the game that we c prepare a case and we didn't submit it we planned to but we weren't able to it's not that proportional fault could not have been apportioned in fact it could have been apportioned and now it never can be apportion because they'd simply didn't put the line on the verdict form that would have allowed a jury and then a court like the district court or viewing court like the ninth circuit to take a look at those percentages of fa and then determine whether a settlement credit is appropriate under mcdermott but by failing to do that by not putting it there by saying listen we were going to do it but we couldn't do it that it's lost forever and they waived it and i think the court chronicles very specifically in its order went over pretty trial preacher instructions we went through them we went through the verdict form they had proposed it they removed it they never objected on the morning before the jury was charged they filed a motion for credit before the jury had even been sent back they had an opportunity again that morning to come to the court and object they didn't object again and what  ultimately found is that majestically was one hundred percent liable and now what they want to do is say to the court well we don't want to pay for our liability mcdermott is very clear that the first way to go about this is to put people's percentages on the paper and have a fact finder do that and ultimately you pay for what you caused otherwise a defendant like this waves its right doesn't go forward doesn't put it on and then tries to get a windfall for its own liability which is effectively what majestical is trying to do here they're trying to say we are one hundred percent liable but we're like a credit for our liability based on somebody else's  somebody else's payments and i think it's it's it's improper and that's what the supreme court has said is improper we heard earlier i someone make a refining point outside of this settlement thing with with regard to prejudgment interest because there has been an argument recently made and made before the court today about differentiating in distinguishing past damages from future damages and their idea that the appellant believes these things have been improperly commingled and therefore there can't be a determination of pre judgement enters recently there was a  request of the court to supplement this record with excerpts of the court granted that order but also made a limiting note that we're not going to listen to issues or new issues that were not raised in your opening brief i'd like the court to note that this past and future damage issue was never raised in the opening brief by the talent it was not briefed by the appellee in response that issue is waived it does not appear in documentary nine here which is the opening brief or documentary sixteen what is happen is after the opening and response briefs were presented to the court the appellant came over the top in a reply raising a brand new issue this court and mackay certainly was not open by the appellee we did not have an opportunity to brief this issue to the court if the court goes back and looks through the opening brief you will not find one argument or issue with respect to this past and future thing and something that has come up recently we believe it to be waived the court does not consider or allow this type of argument with respect to waiver future damages and stick a says along with eleven sixty eight and one is styles which is that sixty eight fed second for zero six and six and there's also the first korean air case which is a ninety third fed third five forty second which is also a ninth circuit one nine hundred ninety six case and so those are the issues your honor honors before before this court the judge was seized with the ability i think we haven't discussed rate yet the district court has the discretion to take a look not only at the statutory federal rate but also at the local rate of interest and in its discretion and if equities demand as the court noted in the columbia brickworks case seven sixty eight fed second ten sixty six with his ninth circuit case nine hundred eighty five the court hasn't discretion to look at the equities of the case and to determine for instance in this case that a point two five percent federal statutory rape is too low and a six percent is in fact more in line with a proper rate the court can look to the local law and i think the court made  was six percent so i think there is a default position with respect to the low side and high side and exercising the court's discretion i think if the court went outside of that those two brackets did something else then perhaps that presumption goes away and you've got to present some sort of evidence but i think if the court looked at some of the returns on investment of the of the dow since the downfall in two thousand and ten through the date of the judgment six percent actually is is probably not an extremely high rate considering those circumstances but those issues were before the court and and and respectfully the appellate would ask the court not to encroach on the just records discretion in this regard one minute the court had three legs of jurisdiction on which to stand one was under seventy thirteen thirty three homes under jones act thirteen thirty one and also diversity jurisdiction under talon tire and bringing the is it possible that that majestic wave this whole issue to let it go to the judge no because it happened after the trial you know there was a motion for pre judgment interest was after the trial it was not there was no mention of prejudging if i were to look back and look at the pretrial discussions i would not find one single iota of reference to prejudgment in that what you're telling me i believe so judge i believe so the record is quite large and i'm not going to make a representation to get me into trouble but i don't factual findings made by the court that was then read to the jury so it's not a case type soley to the jury was that those were those facts were found and were read to the jury and  jury was banned by the limitation facts i'm not sure that's under the law of the case or i don't know that the jury would let that fact make any difference to the argument that bound by those factual findings so by and by collateral estoppel by the midget majestic blue was down to two those facts by collateral stoppel he wasn't trying those facts in that case he tried those facts in majestic bluefish reason is submitted at this time