we know what the case about ok well this this appeal presents two main issues number one is that it's a matter of first impression on what does the twenty seven zero nine contribution article under open mean and number two the thought allocation by the district court opa that section twenty seven zero nine of zero provides that quote a person may bring a civil action for a contribution against any other person who is a labile or potentially liable under this act or another law citizen incorrectly argues that it may bring its contribution actually gets market under this act meaning under the opa marquette correctly argues that sentence contribution claim must be brought under another law meaning a law under the and the reason it has to be brought under another law is because market cannot be a responsible party under the act under under the act market can only be a responsible party if it is deemed under twenty seven  a to b the soulful third party so the question before the court today on the matter first impression is how how can a section twenty seven zero nine contribution claim be made quote under this act against must be made under another law here market was not found to be a responsible party because it was not the sole party so it cannot be liable under the open and because it cannot be mob one of the open the only claim that for contribution that the statute but instead the word contribution earlier in the same sentence indeed said to loosely paraphrase a section twenty seven zero nine throughout its brief i counted fourteen times as a contribution under this act but that's not how the statute is written such reading is incorrect as a matter of grammar which rules state an adjective propositional phrase modifies the noun immediately before it in other words to tune in the district court rewrote section twenty seven anon to read a person may bring a give meaning to all the words in the statute in winter those words useless surplusage as they refer to in their brief here's the two must concede that the open only applies to claims against responsible parties that's what thirty three u opa is explicit in session twenty seven zero two a and merely providing that only responsible party for vessel quote from which all is discharged is liable for the covered removal cost and damages including economic losses set forth in section twenty seven o two b and sub graph twenty seven zero two d one capital a which this court never addressed in its intention whatsoever allows for only one instance when a third party such as market may also be treated as a responsible party for purposes of liability under the opa and that is sole fault of the third party but market was not solely a phone the result is that market cannot be responsible party and because market cannot be responsible party not preclude the other also from also being responsible party judged lamell disagreed become subject to graft twenty seven o t d one capital a of the opa only allowed a third party to be treated as a responsible party when the third party was solely at further factual development but despite this reversal on other grounds this court held that quote liability under the opa close quote only quote shifts to the third party close quote in the event of the third party so also want to point out that sitting contends that oprah must be interpreted in equitable manner and then it would be an echo not to allow contribution under these circumstances but to be clear sitting will recover all of its damages under the  intend to have a a a comprehensive regime for all pollution liability but that comprehensive regime applied to responsible parties under twenty sections twenty seven fifty one is specifically reserved other laws including the general merits almost to be clear if if you were at trial you would know that the whole thing course of the trial there was a big debate over was was that agreement breached or was it not that was what the whole case was about and they knew it and we knew it and when that when this decision was written the court found in our favor that he had released us and there's no discussion whatsoever that with all due respect to the district court there's no discussion there just of course opinion about the quality of faults there's only discussion on the number of faults and so what the di to apply she explained her shellfish who were in the decision was explained as to why it was done this way and we will have to wrestle with that but she may be a small part of the briefing and maybe a small part of your argument the judge clearly i mean you know we know that only issue of law there's no review and this is a matter first impression and so we may took more time in our brief because that basis obviously a was written because if you read the opinion that this attends captains negligent was discussed first and there were three out three numbers of faults there's no discussion of the quality of faults as compared to are kept in  two faults and then you go to the fact that she she agreed with our expert and with the testimony that they had released us and that's what the whole case was about but i do recognise that i have an uphill burden there so with that i'd be happening then skip to contribution my opponent just said something i think is very accurate he said if you were at trial you would understand that that's the truth you want a trial so this is why i would ask you to give deference to the trial judge obviously if you look at the trial record here in this case it was a three or four day hard fought collision trial involving two vessels colliding on the river experts testified captains testified it was high tech judges it was high tech with this automatic identification system now that shows you it's dr lines and they're all drawn up on a computer screen as to who is moving where and what not it's all in the record this judge this trial judge evaluated the credibility of the witnesses looked at all this high tech information looked at the  vessels looked at the radars and made her credibility calls she wasn't clearly wrong quite frankly if she had decided fifty fifty i could not she died cited sixty forty the other way and against me it was tough for me to argue that she was wrong what would you focuses on in the we reached this agreement to he's going to hold his position in courtroom seven things that he was hold your position of course if you agree to let my son to invest the past and so what happened is we reached this agreement and muscle to the vessel starts cruising bob and what he patience captain that's somehow that those who are in somehow release the market vessel from this passing agreement the second says customs like the point then cost of the point that custom been around for a hundred years a custom of appreciate your patience is exist under obama and the other one he says it doesn't it's a little confusing but it's now so not bind macleod reads section twenty seven zero nine as he reads it i understand but what he doesn't read to you is the single most important thing i think that drives that whole act the legislative history on page twenty of our brief the legislative in act of this law gives an example that is exactly this case and demonstrates that contribution is available the example is as follows i'm not a big reader of things i know we shouldn't do that but i'd like to just read the example for a second page twenty of our brief this section section twenty seven zero nine the contributions might come into play in an instance where more than one harding is involved in a spill for example a spill may occur when oil is being transferred between a vessel and an on shore facility if the discharge comes from the vessel it is the vessel that bill be the responsible party just like t tomb here nevertheless if an action or a mission on the part of the on sure facility contributed to the destruction the operation of this contribution section or the section on s could result in the purcell that being held accountable financially in part or in home those last words are crucial to show the intent of congress that contribution was one hundred percent ballpark the point of a judge is why would we have a subrogation section that applies to the hundred percent sole full party and a contribution section that only applies to one hundred percent sole party the open that used to not be recoverable under robin's dried up then the responsible party at that point it's to fight it out with the people who he believes or she believes is responsible but the purpose of the act is to take care of the innocent people get rid of litigation calm everybody down and then the real people who could potentially be at fault with then fight it out and it makes sense for this reason if we interpret it the way mocked mr macleod wants  if i didn't have a contribution claim in this happened again and it would frustrate the act the purpose of the act because what i would tell so tune at that point is to to your designate the responsible party but one hundred percent market it's their fault but you don't have a contribution claim against mar we've got to do anything possible to get around this responsible party situation i would appeal it go up the administrative remedies file object action i would do whatever i could do within the bounds of the law getting creative to avoid having to pay the innocent third parties can force those innocent third parties to come to court and sue sue to an end market well because it still doesn't have a contribution claim against market so i want those third parties to get a judgment against market for fifty percent or  opi a what is the role of twenty seven o two d one in general which storage with third parties having the having to be solely responsible what role does that play in the statute that allows the contribution section later not to require so as sponsibility i mean how does twenty seven o two d which talks about the liability of third parties and elements nick aspect of elements of liability the only time the only description in general of third parties is responsible porters when they are sola solely responsible for the for the accident all twenty seven of two is a different section subrogation section which permits subrogation against one hundred percent third party party but if you look at twenty seven not contributions different it says for a contribution against any other person who is liable responsible and they should be treated as responsible party of parties for purposes of german liability on this subchapter now i don't know what the subchapter is but i think it's all of twenty seven all the numbers that we're talking about i think i understand the question judge it is not an article which says that's the only remedy in the entire act it is not an article that says that is an article that says there is subjugation against hundred percent responsible party hundred percent at fault part twenty seven zero nine says you have contribution against any other person than any other person judges that could be a responsible party any of the parson who is liable or potentially liable marquette in this case clearly was potentially liable in this case even if you if you want to read it as modifying the words before as mr macleod wants you to do so i think we might be missing each other a little bit and i'm thinking i understand we have be these vessels that misty each other but we're missing it's not quite as damaging rather like to also read but let me ask you about twenty seven zero nine in the language that you emphasizing does it matter in st interpretation you think interpretation of the statute there don't just say in twenty seven or nine for other responsible parties but we potentially responsible it seems to me that that throws open potentially and in support of your position of that that contribution can come from not just only responsible party you can be doing a variety of people three or four into t v were responsible parties responsible it's not a search just for th solely responsible party so they can contribute that you're going to have a collection of people in the district court sorts out who's got some liability so it does seem to me soley responsible as well as responsible is a least saying that that contribution action can be broader than just seeking the solely responsible party and that's absolutely one of our arguments is that even if those words who is liable or potentially liable modifies the phrase right before market was absolutely potentially liable in this case and therefore a contribution claim exists another point is you have to look through the statute we say this in the breeze there are several sections in there that give different different statue  brief two additional very knowledgeable saying on these very no you believe may not always be right he was a maritime plaintiff's lawyer for many many years and you know i butted heads but he's brilliant on this one for sure  judge here here is to it two additional things happen in open was intended to allow a broader class of claimants to recover economic loss than maritime law which requires physical injury there's two maritime principles and sometimes that vessel owners also negligent he might be strictly liable and negligent of twenty percent but maritime law gives him the right of contribution against an at fault third party who might have created that scene but he has a contribution claim against the third party at fault who made him pay the insecurity is strictly liable for that there are points percentage of fault fin i was trying to think of an example that might work and it's like this if the contribution isn't from a fisherman in southeast louisiana and i'm on a small boat and i'm doing what we all  could be dangerous could be dangerous but you know what i'm thinking of myself back if a bus that piling down and spill all over the place that platform owner is going to be the responsible party he's got no contribution claim against me so the heck with it i'm going to throw it up there anyway because i can't really get sued for any oil spill i realize that fishermen aren't thinking about contribution claims when that happens i get that ok and i get that it is not going necessarily do anything other than maybe utilises a very good reason that the statute on to provide for the kind of contribution you talk about our issue is does it provide you going to some policy reasons and we are to read the act i'm sure in a way generally to boarding a good policy but we've got to find the words in the statute to make that happen and i understand and judge i think i could see a couple of things i tried to articulate in this oral argument things that weren't argued in our brief  tried to do that number one but number two if the statute is a little ambiguous or vague if it is arguably you certainly have to look at the legislative history which we have cited in detail in p just abundantly clear that contribution is available in addition to the argument i ask you to consider the argument that why do you need section twenty seven of two for subrogation why do you need that and the contribution section if the contribution section only applies to those who are hundred percent at fault that only applies to that then as marty what you decide to believe why then do you need both thank you  setting aside the another law claim in an open contribution claim would apply in two circumstances it's not just the sole fault under twenty seven to one egg it can also be for multiple responsible parties just as in the deepwater horizon case which i know y to gets anadarko force or its other joint owners and that so so it's not just a sole fault party there can be multiple responsible parties there could be two vessels that both have all in their tankers and they collide and there's a joint fault so they can see contribution from each other but again the purpose of opa from our perspective is to establish a copper that's really as to responsible parties otherwise he wanted to leave the law as it stands and in this case you asked the question about could market be potentially loblaw well he pursue opa contribution claim against us but we've been found not to be liable and so the act would not apply to us we're not potentially liable we are not a sole fall party so that's a position that's that's the answer that question from our perspective in addition about the legislative intent i think we all need to be careful about reviewing legislative intent the statute states what it states we think it's clear we think it's an ambiguous but the district court also erred because she cherry picked and what she cited was as far as it will but it didn't go far enough because if you looked a little from the prior section from the house on that it talk generally about that you could have a contribution claim under opa but you could also have it under another law so when you follow the section the district court cites when they talked vessel and a facility owner potentially having a contribution claim that that passage was referencing not only a claim under oath but but also potentially a claim under another law does that make sense i'll have to decide but i understood what you contrie the only contribution that is relevant is if you find someone else who is solely larm or or another responsible party are our interpretation of the statute is the opa contribution claim setting aside the another law claimant or whatever that law may be in three twenty seven and three requires that that a responsible party cannot recover against unless they even if they're one percent fall so the concept that it's inequitable for them to be one percent at fault versus ninety nine percent it's all that's that statute says that even if that one percent fault even if there's an act of god but they didn't do enough they're still ninety nine percent they still have to pay for all the damages so ople was not enacted to be you know an equitable statute like the clean water act that has penalties it's strict liability you know and it should go without should not go without being noticed that that you know said to me they're the ones who chose to to haul hazardous cargo you know in markets and sell that that they could never be open responsible party on the other hand sit soon you know new negotiated rates for the cargo that they were doing they paid insurance premiums and so we disagree that in that i from our perspective it's equitable way we interpret the statute which we think the plain language supports versus their interpretation that under this act is somehow modifies contribution versus person we think that the talismanic is under the under th analysis that except for responsible parties the courts want to the congress want to allow people to pursue under what other contracts they may have excess or so subrogation for served indemnities preserved and contributions preserve