tom d s and i represent shell chemical lp and motive enterprises l l c in litigation arising from january thirty one two thousand and sixteen allision in which a seven hundred fifty foot great freighter hit two that was presented to the district court concerning the insurance for one of the vessels that is alleged to be at fault in causing the illusion arest t as well as we as claimants and the underlying litigation contend that there were two downbound tugs that affected the course of the freighter that in turn caused the damages of issue here and that one of the company's a scenic marine service that they have toes they did both of them had chemical toes as a matter of fact and we have included the insurers of scene act under the louisiana direct action statute file by third party complaint in the same act limitation proceedings when the insurance policies were produced in that proceeding th contained a curious omission and that was an omission of any reference that the insurance coverage to be provided to its assured seen act by the primary carrier and then following form by the first and second access carriers would likewise be limited in the event that scene x is able to limit its liability under the limitation of liability act and we scrutinized those policies at length before filing summary judgment because it was a very curious omission genesis marine had such policies which specifically reference coverage being limited in the event there is sure it is entitle to limit under the limitation of liability act the lower court and its ruling denied  summary judgment but did more than that and not only deny the summary judgment but ruled that indemnity language alone in the scene act insurance policies was sufficient to confer that personal right of limitation it's on that it's not the case because it's maritime and the judge jackson did you know reach the grab them on and so forth it's not the ordinary in a law kotori boom boom boom and i don't mean oversimplify but you know one head  interlocutory decrees and admiralty proceedings under twelve ninety two a story and i believe and i believe the plain language of the statute makes clear that there is a dichotomy created and in the statute and created by congress and that is those are for substantive rights as this court has ruled it says just rights in the statute itself but substantive rights and the other part of the other half of the dichotomy is liability and here we have a substantive right that the court has determined that the insures are entitled to raise here personal rights of a solitary albacore that the court below is held as a matter of law can be conferred based on indemnity language as connotation to it and here are the right in the first instance to raise a glass here case not what your argument is cosigned you're very explicit about your argument i say what your best case polling is would be appeal to iran or most of the pleadings here who would have addressed those that were cited by my opponent and with that i went and researched more and there were not any truly on point in the situation here nor have any cases been cited to the court in that regard but i did find judge jones a couple of cases in which the fifth circuit has accepted an interlocutory appeal of limitation decisions and which the amount of the limitation find has been increased prior to liability ever being determined and prior to any other rights being determined so on a on the basis of the ad interim stipulation of a party's right and how much needs to be deposited in the registry of the court in order to take the place of the that those have been decided on in their walk toward bases those are not cited in our brief your honor because i only came across these within the last couple of days they are arguably analogous here but they are certainly far earlier than any determination of liability or damages and judge i'm happy to provide this by letter to the court but the case that i came across this weekend is cross contracting company verses law for fifty first case of cross contracting company but there is far before liability or damages toned down there is no white collared a pink tail case that you're able to cite no one was contesting that the stevedore in that case in the first instance had the right to raise limitation if for example the into trance case or buker meyer were a situation where it was a warehouseman raising a case we are saying that the right has never attached and i'll allow that mr le tourneau to go into some of the more substantive issues with respect to crown seller back and whether judge brown distinction between indemnity language that was that issue a noble toing which he found to be insufficient to confer a personal right and clause eight oz i of the piano i club rules which very clearly discuss limitation of liability and only under those circumstances does to the insurer have a personal right to raise that issue and those personal rights whether they can be raised by a solitary all of the not or all born as a louisiana civil code  and if indemnity language alone were sufficient that every personal right i'm going to sure would become that of an insurer even spousal immunity that's allowed by louisiana law would automatically be confer insurer when in fact that is a personal obligation that a solid another solid el salvador cannot raise unless that there is contract provisions in the insurance policy allowing that right and indemnity language alone would be enough then i believe that the last provision of article eighteen zero one which says a solid burial gore cannot raise a personal obligation of another would be completely  they please the court judge jones you asked what was our best case with respect to your lucky turi jurisdiction and i would draw the court's attention to carry dellis the refinery up panama to say overturned but nevertheless characterless is still valid and in caravelle as the court said we have recognised twenty eight us c twelve ninety two eighty three as having application primarily where a determination of the rights and liabilities of the parties has been engaged in separately from a receiving of evidence on and the resolution of the question of damages and that puts us precisely within the ambit that we are talking about here today judge saini in his decision specifically found it made a liability finding he said that the excess insures they are not liable beyond the indemnity obligation imposed by the primary policy he also granted them a right under that policy and so our position is that interlocutory jurisdiction is appropriate because he there's both a right and a liability that was found by the by the court and here if you look at car this case where judge janie relied upon what effectively was that very analogous clause he carved out some language but if you look at the the case of the dog of the deployment that was  that decision in the dog go that the court said the statute simply voice any policy clause which conditions the right of the injured person to enforce against the insurer is contractual obligation to pay the insurance debt upon as prerequisite the obtaining by the injured person of a judgment against the insured and that language still remains in the clause that judge saini approved his decision in essence he still had to have a judgment he simply struck the language about having to have paid in advance so in our view that is a no action clause judge things decisions shouldn't stand for have the trial happening on the merits some posts are remaining issues of liability admittedly this is a finding of contingent liability but a liability finding nonetheless so we were we were we actually have a trial scheduled before judge sai were referring to two different levels of responsibility and the first level of responsibility is that of the of the tow that is true your honor on the sam point of are they you know are they entitled to limit liability or not and then the insurance covers whatever it covers but that the statute twenty eight u s c twelve ninety three a three you're not conceding but you're not arguing  absolutely correct your honor ok i just want to make sure i understand what you're asking for just aren't thank you all right knew it was to make change yes your honor i actually represent we are the insurers some or all of these insurers are on the twenty nine over one million dollar first access policy and some of the other insurers are on the seventy over thirty and i reckon all of them i do not represent one with them you don't represent  reference as the first and second access insurers they provide all the insurance ninety nine million over one there are some factual points i'd like to make in respect of the twelve ninety two eighty three inquiry that the court is stone first of all there has been no determination of any percentage of thought we have three different vessel interests here and all of them very vigorously contest their own culpability at the trial the judge is going to have to decide how to allocate fault and will have to decide which if any of the three vessels will be entitled to limit my ability all three of them assert that any of their negligence was without the privy or knowledge of their corporate owners and that they get to limit so there are a lot of moving parts  some of the outcomes could mean that our insurance policies are never implicated at all above the limitation fund so the limitation fund for sinak is slightly over fourteen million dollars we could have an overall damage award and an allocation of fault were snack pays less than their own limitations on which would render completely moot what we're here talking about today we can have a finding that sinak is not entitled to limit which would render entirely mo what we're talking about here today that's why this case is ill suited for twelve ninety two a three in a lot tory appeal my best cases are the fifth circuit cases your honor and celtic marine we have said in our circuit we construe twelve ninety two eighty three narrowly because interlocutory appeals are disfavored in the law the butcher dire case is very similar to our case because it was the qods a five hundred dollars limitation ruling in the underlying court that got appealed on a twelve ninety two a three in our court here in the fist circuit said well we don't even know whether you have a liability yet or not that's why the points i'm making to you are so critical on the twelve ninety two a three question we can go all the way through it what's said to be a two or three trial and the ultimate outcome is sin x exposure because of a faulty allocation or because they get to win that liability is below the limitation fun and therefore whether we have to pay anything above the limitations on it it's in coate right  side do you believe that there's anything in his ruling that gives you a legal benefit that you would tend to rely on in the upcoming trial before the district court and the upcoming trial before the district court the ruling that we get the benefit of limitation has been decided by the court already and we would go in and support our insurance arguments that they're entitled to one liability if they're if they are entitled to limit liability they're kept at fourteen million and some change if they're not entitled to limit liability then they pay for damages which are covered by me the argument that i have to pay even if they get to live that is a benefit that obvious cheve because a court made that ruling does that answer your question rubric is set down by judge brown in the crown zellerbach on bank opinion where he says what could be more fair than for an insurer to say i'll pay one hundred percent of what my insured has to pay but no more that is the essence raised in their principle brief the point that in other aspects in the direct action world the indemnity nature of a p and i policy has been held to have to give way to the public policy the direct action statute rise to the creation of the direct action statute the first instance but that doesn't change the fact that the indemnity wording in the policy spells out the maximum why the it is the insurers more importantly what i'd like to emphasize to the court is judge how we were a little bit disappointed that judge zanny didn't go further and explore we were happy to win but we raised arguments based on four different areas of our insurance policy all four of the areas are cited in the br with record references but we are not relying only on the preamble indemnity wording in our policy briefly we have a section that says that we agree to make good on what the insured has become liable to pay and shall pay that's the  wording that's being assailed so rigorously by the other side we also have an endorsement that says a third party cannot recover more than the insured could recover by way of indemnity by way of seeking a burst from their insurer we have a third section  says liability here under shall not exceed that imposed against the insurer by law and we have a fourth section that says if the insurance liability is lessened in this company shall receive the benefit of such lessened liability that was really important because it's found in a section called the broker book brokers liability section and it wasn't even addressed by either of the appellant's so there it is it's clearly clear in expressing its terms and no one as far as i can tell is even assaile that went so it's not accurate to say that we are are bottoming are arguments based purely on the indemnity nature of our contract we also your honour's on the twenty nine over one boat the twenty nine over one and the seventy over thirty are following form provision so they pick up the clauses of the primary policy but the first excess twenty nine over one also has its own wording that goes on to say that we agree to indemnify sinak for all liability lost major expense insured against that wording is nearly identical to a louisiana state law case called rogers versus texaco that we cited and discussed in our brief one of the significant things about this rogers cases we're dealing with that kind of wilburn vote versus state law interplay in the marine insurance world and a fifth circuit case magnolia marine the fist circuit said that the special detail added to crown zellerbach owing to the fact that these cases have been litigated in the louisiana court system and in the rogers versus texaco case the wording that was found to be good enough to allow the insurers to avail themselves of the benefit of limitation of liability said quote we will pay also you legally must pay as damages close quote the party trying to break the insurers right to limit said that wording is not good enough you got to have our insurance contract judge stewart once again we're asking you to interpret a contract like the last hearing for different sections which we say clearly allow us to limit our exposure to the exposure of the insured in the event for instance they get to limit liability so we have really four cases that we've relied upon crown zellerbach and three cases that provide gloss and detail to how this is going to work over time rodgers from the fourth circuit and two manic language required there's no admiralty specific limitation of liability language required it's enough to say we don't have to pay more than the insured has to pay and that is the essence of what an indemnity insurance policy is those four cases if you go look at the principal briefs and the reply briefs filed by the oil companies they're not listed in that list of cases because they're not discussed we've gone through them in detail we say that this is the controlling rubric that supports our insurers and tata meant to benefit from our insurance ability touchwood to limit what you think the eight i argument is just a red herring and i think the ai argument you know both of the oil companies insurance written on forms that go back to the mostly of fifty's that's between three four but were mostly lloyd's of london and domestic insurance companies would have club rules in that case there was a club rule that left no doubt how how the case should go but that doesn't mean that our arguments are unavailing they just weren't addressed in that case and then of course we have other contractual clauses in addition to the indemnity nature of our policy  we also would note that this is an effort to assail the interpretation of the contract contracts two to the first and second access policy that's contrary to the declarations that were uncontroverted that were put in by the insurers in connection with the motion practice as well as by the insurance and very all attesting to the fact that they what they were after was to pay insurance that would obligate the insurer to pay to the extent that the insured so that's in there that's not what judge zanies record turn on but it is significant in the sense that it might be suggest as being suggested by the oil companies that are our words lack clarity in our insurance policies shell i have i do want to touch on this i've raised a uniformity issue in the briefing your honour's and i did it with some hesitation because i think this court's probably bound by precedent to reject the arguments that i've made in the first case that dealt with this issue direct action and its impact on limitation of liability it was a tricky supreme court case in the  action application of the possible exposure above the limitation of now is a disturbing intrusion into marine insurance and judge brown in his dissent in neville towing said uniformity in the maritime law if we apply this rule is at an end so we think as a practitioner we can tell i know i've see it in this case we go on the record in this case if this vessel incident had happened in arkansas on the mississippi river we wouldn't be here because the only reason we're here is the direct action statute and it's substantive law overtaking of the limitation why they'll be framework in every other state in this country we would not be here we would we would get the benefit of whatever defenses are insured could assert in the underlying action i think this is a terrible disruption of the general maritime law i don't our supreme court has said some conflicting things about uniformity because sometimes we say look we need state law to define the parameters of marine insurance issues this is not just a marina chance issue it's also a limitation of liability yes i did want to touch on it but i want to emphasize to you i'm not ignoring the fact that there is some precedent here that maybe that may control your honour's feel obliged to do there's one more issue in valera as reply brethen just like to mention briefly because it's a little bit confusing i think it requires a correction there's a primary million dollar insurance policy in this case it's underwritten by judge stewart that's the continental interest and john m it is their lawyer he filed a short brief saying i'm not going to take any position on this because i have a million dollar policy and the limitation fund is fourteen so if they get to limit my money's gone anyway so i have a dog in the hunt i'm not going to say a thing about it well alero latched on to that and argued in their brief that we are bound by what the primary lawyer does and a clause with side  from the primary insurance contract that says by signing this policy it is understood and agreed that all underwriters subscribing here to acknowledge that they will follow what continental does i'm paraphrasing that's that is a clause that deals with subscription market insurance so the primary policy is continental fifty percent and it's also ali ons i think in the briefs they call it a g c s or something like that so what that means is that the following market on that policy agrees to let continental run the claims and make the decisions that doesn't oblige the it's being argued by the arrow that we on the twenty nine over one  over thirty somehow because the primary lawyer didn't bring heft to the legal arguments here that we're bound by that and just want to make clear that the clause that's being relied upon by the lawyer to support that argument it deals with obligations between and among so subscribing insurers on the primary policy it does not speak to the obligations of the insurers that are represented by our interests that's all i have to i will say one more thing i've got three minutes i had it going back to twelve ninety two a three issue in the reply brief from the lehrer oh a number of cases were cited saying it's not correct to say you can't race a perrier about a decade ago where i lost a summary judgment to judge fallon i was trying to argue judicial stoppel because a litigant didn't list his contention assets as lawsuits in a schedule and i said you got dismisses case under judicial stop the stoppel judge found and i did what he thought it was an important question and he certified it and we came up so i'm not suggesting that doesn't happen judge jones was on the panel in that case it was called in is back to where we started you know what is the one review ability aspect of what's happened that if we don't have jurisdiction dismiss it even assuming are you window where we're wrong it's tolly and unnerve you know proposal i mean ultimately in the collateral order it's to the supreme court has told us to narrowly construed pointed cetera et cetera and know that  ultimately it's still subject to appeal one of my mr i think there is if you look at the history of twelve ninety two eighty three i'm not sure about this collateral  dismiss in the case for no jurisdiction only twelve ninety three and so i'm sort of trying to cut to the core of what is it about this case with all these insurers and all it's going on that when you get to the core of it whatever  s right or wrong would be immune from later appeal here as opposed as i asked him ok do you want what you're asking this power to do is to give you a legal ruling th aspect of it worries me i mean of bob in answer but that part worries me is i'm trying to follow the logic of it we render something here it comes up a different band and they're stuck with what we said under under our rules yes and i think i and you're asking me is there any legal significance to deciding this now vs later there is no reason that i can see why this issue cannot be addressed by ordinary appeal there is no benefit to anyone as such to resolve this now rather than later except somebody who's had a bad ruling always wants to get it reversed sooner rather than only this case is ready to proceed the issues that are the subject of this point can be brought guess you're saying now whatever benefit might have been newer to you you're willing to what i meant about that was this issues already been decided so it's not part of the trial so the trial is does mike ensure get to limit their liability if they'd if they get to limit their liability the issue of whether i have to pay above that has been decided by motion practice so i suppose it would be true the oil companies would rather see that all right if you are not trying to foreclose whatever else she was gone come up or both but just want to before you sit down to sort of address my little piece of your honor candidly i don't know that it that there is an unreviewable issue here that can't be resolved at the end of the case but having said that it does make a big difference to us that this issue be rectified one is have an issue where great lawyers want to get us to reverse something they deem adverse in the heat of a big money case the why is it qualitatively different then you get your shot later suppose in the heart of this is honor it does have a bearing in terms of of how the parties deal with each other between now and trial and and if this ruling stands then our discussions with syntax insurers and time in trying to resolve the case are completely different and if it doesn't stand and so that's where it really has important to us judging the heart you asked the question  was there any benefit and the benefit to the insurers at this stage of the game is their reserve their reserve now is to set at the limitation liability essentially and they have all that other money that they can take off their books so they haven't been in fact  derived a benefit as a result from the constitutionality perspective if you look at the cushing decision the cushing court said but the crucial fact which requires of the conflict between state and federal law  face now is that the present actions are brought completely independently of the limitation proceeding that is not the case here what we have is we have a can curse of claims we have all the parties before the court all claims are present we don't have a decision that even implicates the constitutionality of the direct action statute viz a viz the federal limitation of liability act in terms of the clauses  that the appellate is rely upon in addition to the fact that judge saini has a no actually clause that clause also has a fundamental flaw in that the c t l indorsement struck the only clause that would have no coverage provisions underneath we argued in our briefing that the issue of coverage has been waived because f l these have not issued any type of reservation rights or denial of coverage the other clauses  brokers liability it doesn't pertain to this particular case i think that's about all i have time for your honour's all right thank you council big case lawyers unit two is in debris and it all argument