eleven for attorney stroup please introduce yourself for the record and proceed with your argument yes good morning jim stroup on behalf of daniel joseph daniel spencer and spencer yes if you make please the court this is a censored and daniel spencer was on board at the time of the ground in control and there was also a permanent captain for the vessel ashong alonzo who's the rd party defendant who is alleged to be vicariously liable for the grounding incident the yacht at the time of the grounding was under the operational control of mr sacco mr sacca employed m paid for the operation of the yacht paid for dock each fuel mr zappa procured a marine insurance policy for five million dollars in his own name insuring th and we believe we have pled enough facts that were stated clearly for the disk recorder to analyze the counts for vicarious negligence and for negligence ye help us a lot if you could imagine two scenarios one this case goes forward the way you want it to in the nd scenario as it goes forward the way the district court has said it will go forward everything else exactly the same could you explain how those cases could possibly come out differently in the end as far as how it affects your clients absolutely your honor if we can prove that mr sacca was the bareboat were demise charter of this boat in operational control he would have a full wheedle why ability for the ground and that would give spencer yachts a complete release in terms of the judgment for spencer yachts from any liability for this ground in it so that it would also give my client daniel spencer that is a markedly different relief than contribution or indemnity yes the for as to the st you mention two differences as to the st one i think you need to explain it a bit more that also follow under the stipulation that if he is an agent for the plaintiff in this fully responsible that would be a complete dark to recovery against you by the plaintiffs if we do not have mr would get off the hook entirely wouldn't it also follow that under the judge's scenario you would also get off the hook if he was fully responsible as an agent of the plaintiff well we won't be able to hold what directly wible to the point to fund a charters and bring with him his five million dollars worth of marine insurance the marine surance will not be triggered by well i guess what i tried to say earlier your honor is with six the ability to pursue mr saft as a rd party defendant we will be hampered in our ability to prove his status as a bareboat charter significance what does it have some particular significance that we may not appreciate why do you keep using that characterization of what was the important it does your honor a barr charter or were otherwise sometimes called a demised charter or acts as a owner pro hockey chait has full operational control command of the bessel makes all decisions concerning the navigation of the basle and can be held liable to the legal owner of the vessel for negligence that happens during the charter that causes damage to the vessel and that has meaning in maritime law and that is what we have a what edge in our rd party complaint we are fully label counts for vicarious liability and negligence as contribution or indemnity against both ability to conduct discovery that certain discovery can be triggered hence the party more easily than they can be against a nonparty which is a fair point hit did you raise that below or  has to pursue a stipulation that this gentleman would respond to discovery as if he were a party your honor we attempted to get the attorneys representing mr sacket and mr alonzo to waive service a process to agree to their service we couldn't get out accomplished we had you know to research the issue trinidad tobago not be party to the hague convention we had to go through the state department getting letters right atory issued sending them through diplomatic channels we informed the lower court that this would take a year or more to be candid we still haven't received the return for our attempts to serve trinidad and tobago insurance so there is a real problem we will have if the district court does not want us reinstate the counter claim the rd party complaint i'm to his marrying insurer that issued a policy of insurance that contains an omnibus insured were additional insured claw aust that would cover daniel spencer's to fess up from the lawsuit thank you mr stroup if you could mute your audio and video at this time and mr low i think we can still see you can you please  attorney not i believe that we're going to hear from you next if you could please on your audio and video and introduce yourself for the record good morning again my name is clay not not represent  rule it says that as a defendant if they think someone else is liable to them should they be liable they can bring a rd party complaint so they've done that there's no rule that says a court can refuse to let them do that if they don't have a practical benefit from metro or otherwise the court has done that so we've explored whether there's any practical ramifications at all and you've heard mr stroup say well one big one is the mind right it's the procedures for seeking discovery from non party are different than they are from a party which is certainly correct it's easier to conduct discovery against the party so what do you say to that argument put your honor under federal rule of so procedure fourteen city apart a party a rd party plaintiff may quote bring in a rd party defendant who you are to be the other funding that the court made on that issue was that there were no allegations that plausibly made out a claim for the for the individual named gems of the of the two  what language there is that went into that would establish the agency relationship with the claim is that there was the i think what the court found was that the various allegations also that it all times mr saga relevant boat he has no connection to this saying this is the very boat he's tied to that very boat were alleging that it's a bare bones charter relationship end of story what's wrong with that under their normal cleaning that would seem to be the same thing they say that it will capacity and that that the claim is that he has not got an agency relationship to the company that's tied to the pope because he's got a direct relationship with respect to the bo that why does there need to be more in terms of allegations and that the one way to disagree as i understood it was the point of this quote stipulation but course that's not a stipulation between the parties to the suit under fourteen seats so i don't really they were not agents these gentlemen the i believe were not agents that they were acting as individuals and as intelligent do or did not accept those conclusions and then look to the actual factual allegations and after analyzing those allegations appear only practical benefit if they can if they're really seeing scary gets not as an agent because if it's as an agent they've already got the stipulation there's no there's no dispute about this well as late as that the idea i don't i don't   the discovery can be obtained for mr socko related to us i'm sorry i guess what i'm just saying if the claim is that he had a bare bone charger their bo charter and they are claiming that he had a relationship independent of a fun day these are be the boat so he was the master of the whole thing and the chair company had the funding had nothing to do that's the argument with respect to they would like to do discovery on the spot at that except that prove that and they make the case that they can't do that if he's not a party all of which is fairly cogent d which just takes you back to the same what you've been making which is the complete can't fairly be read to allege his relationship to the boat in that direct manner everything ran through a fun day that's your position and i think that's what the court held and let me know but i guess going back to i just don't see where in the complaint the  alleging that everything ran through a fun day rather than that there was a direct relationship between mr so and the boat and then the only thing that i see the district court pointing to are statements directly describing from the complaint that relationship  you know you're in a little bit of a tough you're a little bit of a tough spot here because you're trying to convince us that both parties to spend all this money on this appeal and how we rule makes no difference at all to either party well sell unfortunately i think that the the whether the if you know whether the feel succeeds or fails we're in the same situation regarding liability issues which is really liability claim rather than a contribution but it would your argument be different to us because then it seems fairly clear that it's a materially different practical outcome because if they can show a carious liability y agree with you going forward when we were drafting the rd party complaint we used the terms indemnity and contribution only to track the language of rule fourteen c and we try to assert as many facts as possible as we understood them at the time we filed a complaint and when we filed the rd party complaint and keep in mind we haven't done any depositions we've exchanged some paper discovery going forward on and we also offer to the court the opportunity to amend to provide additional detail go forward so i appreciate judge bearing what you're particularly saying that we could have done a better job in drafting the rd party complaint tonight re with  position that barely read that complaint is not leading agent serialist well if you go to the rd party complaint for example for mr dan spencer's we take the position for example that trying to tender them to the plaintiffs and stand in as the real operator the vessel as opposed to censor yachts and or dance perez's there's some word in the complaint that says that that concludes the arguments for today the session of the honorable united states court of appeals is now recess until the next session of the court god save the united states of america and this honorable court counsel you may disconnect from the meeting