argument today primarily to answer any questions that people might have about the briefs along the way if there's time i'd like to make for important points which i think i understand better now than when i wrote the briefs the st is this one the merger clause has no application in this case the merger clause is a very narrow doctrine which holds that when there is an interlocutory appeal from an order granting or denying an injunction it merges into a final appeal from an order granting or a permit it works because the issues in both cases both appeals are exactly the same that's not the situation here the lower court did not consider the merits of the case when it issued a pulmonary injunction preventing us from issue were grant or deny an injunction when it exonerated the jet ski owner in this case on the merits it simply denied or dismissed our complaint without leave to a minute a real twelve th very little left and how would that affect our analysis here well because the court so we're dealing with  injunction it would affect in a couple ways the st would effect is this congress passed a limitation act as a shield for merchant ship owners not as a sword and the jet ski owner in this case has been using the act as a sword from the gave the district court exclusive jurisdiction to consider a limitation but not exclusive jurisdiction to grant an exoneration the court does not have jurisdiction or indeed what do you mean by heads on a ration  title of the limitation act is a limitation and exoneration the limitation act allows the judge to limit liability to the value of the vessel alternatively where the ship owners limitation rights are the term stipulation is actually a term of art in these cases they're not agreements in order to guarantee or vouchsafe the limitation claimants or the vessel owners rights clamp the the shipper rarely except those offers but because they want to keep the of the opposing counsel and sion in the state action there were other parties who  had they appeared in the limitation action we would have had to reach deep relationship with those other claimants but they did not you recall that the district court said jr june nd two thousand and seventeen is the deadline for their appearance they didn't appear their can't see contribution as the fact that there is a federal judge and if you prevail on the judges reversed and and as you wish that the stay is lifted in the state court proceedings then what precludes them from raising wh what prevents them from raising a contribution claim at that point i understand that we are already suing them in state court there was never an injunction against suing the other claimants if this case is reversed and it goes back and the district court abates the action as we asked it has a right they can then if a cross claim is raised in the state court action they would have to before they could raise us but across the mystic what action they would have to go back to sacramento in the district court and ask for relief from default what we are simply asking for at this stage is to keep that option open what happened in the district court was that even though this was a single claim case in the district court even though we were the only claimant before the district court the district court refused either to lift the stay at consuming williams or to abate proceedings in adults and it is very clear under newton under ross and under a variety of decisions that where there is only a single claim the district court has no jurisdiction and no discretion to do anything but lift the stay and update that the district court basically ignored single claim exception and remember there were no arguments about the cross claimants and their possible claims before the district court this is something that's just come up before at this stage but the district judge declined denied our motion ignored the fact it was a single client case gave lip service to the fact that he was perhaps denying us a jury and then refused to  and then after that after we filed in a lack of three appeal basically proceeded ahead altered the status quo while this court was still considering our in law kotori appeal and rule as a matter of law that  ignored the plaintiff's rights or my client's rights under the settings of souter's clause and the thing you have to remember is that the tension between the seventy two suiters clause is the thing which animates this whole problem the on the one hand the ship owner has a limitation right which everybody agrees is an anachronism which everybody agrees provides shipler with with a species of protection it isn't available to any other member of our society on the other hand we're talking about  victim's jury rights constitutional jury rights of the th amendment so it's well settled in other cases that it's actually a sliding scale that applies here the more secure the shipowners limitation rights become the less need there is for exclusive jurisdiction we have secured the ship owners limitation rights in every way we can there we are the only claim the other claims are in default we have offered stipulations which protect the ship that that duty didn't apply unless we could show that the other person who was injured was somehow either known to or in a contract with the the relic company that's not the requirement if i give up my thirteen year old son a carny injure somebody else i don't it doesn't have to be proven and i've know him or that he was a contract with me and the question here is twofold one did our claim perhaps state account for that they wouldn't trust me and then alternatively if they didn't is cart my name is otis felder not here on behalf of the apple e williamsport reynolds nobody wants to be here in this kind of case this is a tragedy or sorrowful that this happened to mr williams but one of the sport reynold did not engage did not was not the one that chose to engage in this particular sporting activity mr williams did knowing that he wasn't able to swim on the back of the jet ski which is commonly known as the courts of appeal of the california have stated it's something that has inherent risk this court itself is recognize that a jet skier getting on a jet ski hitting a wake or a wave you're going to fall off and that's just the inherent nature of the recreational sport this is a question the district court addressed with respect to recognize whether there is a duty or not by williamsport trental it was a it's been conceded there wasn't a contractual relationship with mr williams ability does not equate to do that you can't measure a duty just because something is forseeable and in these duty no duty kinds of cases such as this the courts asking as a policy matter whether we're going to hold somebody liable because of the relationship the nature of the sport the nature of the activity that's done regularly by courts it's a legal question it's a question of law pure and simple for the court to address and has trombley in ashcroft  decisions by the supreme court the district court or the court has to use its common sense and experience and see whether something is plausible as a cause of action negligent entrustment the example that council just gave him but he gave the district court is interesting a mortar best seller of the vehicle to a fifteen year old that's a pair that is apparent to somebody who does that that the person is not qualified in state of california or most likely would have a license there's no requirement for renting or using a jet ski that a person be of a certain age and here we're talking about grown adult men who decided rent a jet ski there was nothing apparent about them jet skis before it's not a case where they said they're totally if in experience and counsel makes us reference occasionally in the briefs that these were novice rights jet ski users that's just not the case and there's no reason that we're in sports rental would issue as to whether that is your quarter and in the nine the motion to lift the the stay of the state court proceeding the opposing counsel said they did everything right that would ensure because st you have to state a claim as we've said repeatedly you can't get to the next stage of asking for something to be lifted if you haven't stated a claim under either through the lens of federal seeking a lift to the injunction the court has discretion as to whether or not to do that there is no case yet this is the st one this is a novice case if we get to that issue is common law so in order to lift the state to have this tension between state court th amendment right in federal court errol to case you have to have had a common law remedy for wrongful death it just doesn't exist this is a new remedy that was created in recognizing how states were reacting to wrongful death and it's historical i can explain to your honor likes me too but you can't ask for a lift of the state if you don't have a common law remedy in state court now counselors refer to a simmons case that's a state court case in california that says while wrongful death is already recognized simmons did not go through that analysis of whether or not there was a common law remedy and we've done this this court has done it the u s supreme court has does it has done it repeatedly when there's been a big question as your honor knows with respect to whether or not punitive damages exist under un seaworthiness and the examination for that in the the supreme court has been to look at whether or not common law provided punitive remedy for punitive law punitive damages and the court judge thomas found that it did and so therefore punitive damages could be a remedy that could be sought now and i only go into that as an analysis because it's important here when courts don't do that ignore that analysis they just say oh well there's a common law remedy because the savings to souter's clause of the savings that serious clause only gives that right or remedy if it existed a common law the other two examples that has been good have been given is that you know well into the jones act and the death on the high seas act both of those would be examples and you look at the cases such as shipman newton it's a jones act case  shipman wanted to pursue her common law remedy in federal court in that case but it was a jones act case well the jones act and the death on the high seas act both have step written in their statutes the jones act is  incorporates field which has a specific statute that gives state courts concurrent jurisdiction it doesn't simply rely on one thousand three hundred and thirty three it has its own specific statutory grant congress was death on the high seas act cases to be specifically heard both by federal and state courts particularly because states had already for a long time created a statutory right for wrongful death and if it happens in case that's a state court case and cited in our brief that distinction so with al having a common law remedy you can't there's no tension between to create a lifting on the state and that's what the argument that the appellant's rely on this that we should have had a lift of the state to go pursue this purely admiralty case that's purely and they say well the distinction is because they're pursuing it in persona that's not the distinction station is historical based on whether or not they had a common law remedy so without that the nd problem that that's raised is that the judge as you read in the opinion and his reasoning and is that he never and in the arguments made a council he never denied the appellant the ability to ask for a jury he said that issue had not fully been resolved he'd design it without prejudice he said he would consider whether or not they could bring a jury claim separate from their claim in this case now remember in these proceedings the vessel owner is the plaintiff so they file an answer which they did and then they also filed a counter claim and on their conner claim rather than us answering the counter claim we filed a twelve b slash f eight motion saying we don't believe this is a valid cla so the court could have seen the claimants could also have filed a state wrongful death claim under one thousand three hundred and sixty seven dollars the court could exercise supplemental jurisdiction they could have filed a state court claim that would give them arguably a separate cause of action in which they would have a right to a trial a jury trial but the court never reached that point it said will consider that later  separate at this point because he was still deciding whether or not the claimants had actually stated planes for both wrongful death and the survival action and then the rd the rd point is  lawsuit in washington superior court the owners of the vessel filed that limitation action in federal court that state the state court a action and the case went all the way up to the supreme court on this issue whether or not the federal judge actually in that case the federal judge tried the case and found no liability so they brought it to this court then went to the u s supreme court the u s supreme court said not so fast he should've the judge should have stayed that case and let the semen because he's a jones axeman has a a federal emirates or has a common law right to have a jury trial should have let him proceed in state court so it goes all the way back down just like  he's allowed to proceed in state court except everybody forgets what happens next which is the expert ex parte green case it's the same kates so in the green case the seaman tries to bring in his state court action a claim for and see where they miss and challenge the limitation in the state court action and that i don't know maybe the court was not as busy in one thousand nine hundred and two but that goes all the way back up to the supreme court in the supreme court that time said no you can't do that you can only bring common law claims in the state court you can't challenge the actions that happen or that would adversely effect the limitation proceeding and that's exactly what the claimants plan to do here if they're allowed to proceed in state court they're going to challenge the issue about whether or not in our case one sports rental it's a necessary part of their claim knew or should have known about whether or not williams was going was going to get on the jet ski and be a pat of the rider and fall off they have to bring at issue the the owner's knowledge that it's necessarily combined in a limitation action because it's the nd part so after show as counsel is a after the claimant shows that there's liability the next question for the district court is can the owner prove that it was outside the privity or knowledge of the bessel owner that this incident occurred so when he brings what he when the claimants have an action in state court necessarily bringing at issue this idea about the owner's knowledge is certainly going to affect the limitation proceeding for which expert take greene says you cannot do there's no you know the stipulation that was offered in this was something the court has asked if there actually is not a stipulation in the record as you see when the vessel owner stipulated to the value of the vessel and it is a term of art maritime they actually proffer a written stipulation so there is a record of what it is actually so we as the owner stipulated it doesn't require the other party to agree to it stipulated to the value of the vessel and we submit that stipulation in the court either approves it or doesn't approve it there is no written stipulation in this case there is not anything proffered by the claimants other than this proposal that they will stipulate and try to find the non other parties the nine claimant the non parties who are in the state court action there's no way as your honor has asked that they can bind those parties now they could have offered a stipulation and got those other parties consent they could have they know who they are they know who their lawyers are and they could say look we want to bring this whole case into state court will you stipulate with us offer to the federal court that you will not bring claims for indemnity contribution or any way hold williamsport rental liable in excess of the limitation fund they didn't do that they could have but they didn't so there's no can you help me out procedurally sure you file this action that's and we're talking about today's resolution of the counter claim right the judgment in this case simply says on the basis of the counter claim this case is dismissed what did you do with your client where was an intern that asked and nobody claimed except that's not technically true the the claim that had actually filed their claim and then they filed an amended claim after the deadline now they argue that it related bat ok that makes sense und aired declining to lift the stay what consequences that have on this  if you lift the stick if if the court should a granted the stay or little has lifted the stay then the plaintiff the a stay would be able to file or proceed against williamsport rental in state court even though the court has already found as a matter of law they didn't have a duty right well if you don't in the reverse order i get your argument but if no because he reached the merits of whether or not they had a claim or not he q can't lift so if he had lifted the stay and he said this in the his in the proceedings if you read the proceedings he said even if i lift the stay there's nothing that's the  issue that there's nothing that prevents me from have holding a hearing on this case you require in order for that to happen you also have to have a what he called a fancy word abatement you have to also stop the federal action from proceeding those are two so you have to have two errors of discretion st lifting the stay and then not abating the federal court action my questions taking your time i yeah if this court sends the case back and concludes that the district judge erred when it refused to lift the stay it would also instructed district court to stay  my colleague is asking this court to uphold is this the the savings to souter's clause and able to us to do two things the st was it enabled us to pick the forum in which the merits of our case was to be decided counsel argues that i cannot exercise that that power that right unless i have a valid claim the question is who determines whether that claim is valid the district court should not have done so the cases are absolutely clear that when there is a single claim the district court must lift the stay abate proceedings unhealthy and let the state court determine whether there is a valid point the suggestion that the marang cause of action and never know how to pronounce it it is not subject to savings as soon as clause is simply and flatly and demonstrably false if the court will take a look at the marine decision footnote fourteen you'll see that the court specifically dealt with  issue the moran case was filed in state court it was removed at lot to the to the law side of federal court wrong actions have always been subject to the seven sisters clause the last argument that counsel made and i want to respond to very briefly is that we is that the court should uphold the twelve be sexually well the twelve the scituate depends on the notion that there is no duty to anybody who is not party to the contract or known to the defendant that's simply wrong the and says that a party who entrust a chattel to another cannot assume that that that party will conduct himself natalie and that where it has it knows or has reason to know that the party to me is interesting that channel that lacks the skills or lacks the training to conduct to operate that shuttle safely that's not what's interesting so i can i ask one question if you're correct and  the district court is reversed and you are allowed to proceed and the state court yes or there's a limitation of liability still apply the limitation liability is reserved to the district court that we have given are you going to argue that the limitation doesn't apply to you if you go back and say that that under under the ruling that i hope this court issues in under stipulation that we've offered and they are definite the record of the place right i pointed out the district court retains exclusive jurisdiction over the limitation action what happens if you get a one million dollars then i have to go back to the to the district court person to my stipulations i cannot claim race judicata i cannot claim collateral stoppel and we have to try the limitation action and the only issue before the court then is whether the negligence of the jet ski winner was fell within the privy or knowledge of the company the court used to hang out in silver or when i heard these things because they're they're a lost art but this this is that these these remedies are seldom invoked and people have forgotten how they're there to be conducted properly but if as if we go back to district court no matter what happens in state court the district court retains exclusive jurisdiction over the limitation action and if i'm granted a verdict of one million dollars verdict in state court the district court still has exclusive jurisdiction to decide whether that virtue be limited to five