let's just let everyone get completely settle the court my name is grady harley and along with my co counsel susan daigo we represent the appellant test of offshore the fifth circuit remanded a review of insurance policy coverage to the district court which we have argued that the district court failed to do we are asking this court to give meaning in effect to policies of insurance naming test lot as an a d or additional insured within the intent of exhibit a in clause eleven of a master service agreement which was a vassal charter which contained distinct obligations from the cla decision as stated by judge politi in the blown versus global drilling if the parties wanted to condition additional assured status on the indemnity obligation they could have easily have stated that presently they did the opposite the insurance in clause eleven exhibit a was not to the extent of the indemnity and was connected with the services which was are arguing before this court is that we are not asking integrity and we're not suing integrity for failing to name us as an addition we're sure we have sued the insurance companies under the contract that they issued and it was our argument that under the contractual insurance language that test law should be and assured or an additional assured the district court focused on the decision of becker versus tidewater which we believe for two reasons is not the controlling decision in this case first the becker decision contained reciprocal indemnities and there was no separate clause eleven as is in the present case the clause eleven in this situation is significant as read with exhibit a first it does not any of the insurance directly to the indemnity obligations the clause eleven obligations and exhibit a are in addition to any contractual indemnities and backer or connected with the services services was clearly defined in the contract as the furnishing of a vessel and that is where this incident rose from this court is well familiar with the facts of this case and it's what as judge brown may have said in his day this was another one of those donnybrook offshore cases where there was an offshore sonar taking place and t unable to locate its toe which was submerged and located up to a mile the two miles behind the tow in order for test what to complete its toe its operation it had to know where its toll was located why in order to be the eyes of the toad to spot the toe and to provide warnings are disputed that there was an insurance contract castle is operating the tow or as you call  were the where were the tesla personnel which vessel with the test of a person both it was important in order for the totipotent plate at there be communication this was a single enterprise or a tandem between two vessels there was a survey party we believe that the real issue in this case which judge africa did not look at was whether the policies of insurance provided coverage to testify we believe that the case law  in the fifth circuit clearly states that you look at the policy of insurance to see what the language says does the policy of insurance say that the coverage is limited by in the te language or does it have other language in this case both policies one of the policy of insurance referred to an insurance contract and once you have the insurance contract the question then becomes under the issued by new york magic that that is a unique policy in and of itself we argue to this court that it's both a bumper shoe policy which is an umbrella policy that covers all risk as well as an excess policy why don't we say that when you look at the terms and conditions of the new york magic policy on the first page it's interesting is that it refers to the application of insurance that it had on file which describes the operation of the lady joy and i as a chase vessel to locate tesla's tow fish under  or the first part of it is the insuring agreement and under the sharing agreement there is coverage clause a refers to and it's the bumper shoe one which pierre non and is including but not limited to the underlying p a night coverage that is significant significant because it can provide dollar one coverage it is under the bumper she it is not limited by the for it refers to it as an excess of policy including each occurrence not covered by the underlying policy and then clause five is then the dip down clause which we have  the brief we believe that the term as defined by an assured in the in the new york magic policy in respect to the operations have covers the liabilities of testifying in addition we have also argued that the additional assured clause was meant to cover the risk that looking at and done the team learning which and determining whether or not there was an dumpty language arising out of the court was not looking at the number of cases that this fifth circuit has have to remember that in the clause eleven the language was different than the indemnities but insurance policies are liberally construed as opposed to indemnity language insurance policies are construed in order to provide coverage unless there have to be proved by the insurer of that there was an exclusion so the firing to the previous fifth tie in the insurance coverage to the indemnities they could have done that in this case we respectfully argue that the insurance was not tied to the uniden the tease and more of service here under my reading the right language judge this point that we've already held that the performance of the operation of joanna wasn't was an approximate cause of religion i would first argue that that was in the us and should not have been focusing on eleven b but should be asking whether the policies of insurance which is a contract between the insured in the i'm sure provide limiting language and and what i would suggest your honor is that the connected with learning which in the insurance context has been broadly interpreted context is broader than the indemnity context but what what we're asking this court to to do is to walk or to recognize the fact that this is not a cla against integrity for failing to obtain additional assured coverage but to look at the agreement that we have with the mc yelled and with the bar push you to see if there is coverage under the language of the agreement and and your honor when we look at the at the cases that we have cited to you this is not the first time that we have had this complex situation you know these issues arose a number of these issues arose in the context of the deepwater horizon incident there were a number of cases cases the liberty surplus loans cases and in those cases the insurance and indemnity clause were separate they looked at defined the term your work under the insurance policies there was not an obligation that the lady join or that the integrity be negligent that is that is not a scenic wanandi as judge smith as you wrote in a mask over the arising out of and connected with the language in the insurance context is not based upon proximate cause but also of flowing growing out of there's need not be caused by the negligent and ruled that then have to reach the coverage issues because you can't have one without the other i just like to briefly mention a couple of the coverage issues just said i want to get lost in the shuffle in that we're still sorting them the first coverage issue we have is that there's  express condition precedent to coverage in this policy that states that the evening insured which would be integrity or siegel must maintain protection demi insurance on s p twenty three former better or equivalent and that policy has to have contractual habit of coverage if this condition precedent coverage is breached then all coverage on the new policy is boy for any and all insured and it doesn't matter whether or not any insured our second put the coverage defense is that there is a quote other insurance clause in this policy which operates as an escape cost so if the insured has another insurance policy which would respond to the claim in this policy one begins policy will not likewise respond it's undisputed of him that tesla had insurance to cover his claim and in fact the test was minute in order for be tested to be insured on this policy he has to come under the additional surety endorsement because as tesla admits it's not a named insured and it wasn't added by a specific only with respect to liability arising out of quote your work unquote all the terms and conditions remain unchanged so their argument that you can't go back and look at what kind of lacks common sense it says that you are obligated by a church contract obviously to understand what the contract obligates them to do you would have to go back and look at the underlying contract included respect the liability arising out of quote your work and quote and as has come up with the panel's questions earlier it's already been cited by a prior panel that the liability for which tesla seeks coverage did not arise out of the work of integrity segal or the lady julia was pretty emphatic lee stated clearly stated that the lady joining us operation was successful that's back to the contract and look at what assess now in the contract in the in the back or cases the risk is soon the requirement as additional sure obligated by virtue of a contract or agreement those are phrases are very similar to the contract we have here and the insurance policy we have here so to me back is basically indistinguishable on those points as far as how we're from liability third party claims arising out of or connected with the performances of services here and so the only obligated to get insurance in the first instance for liability which will rise out of the operation of the lady joanna that was the only services that were being provided at the time of this incident eleven b goes on to say all insurance policies of contractor which would be seal related to services obligated to provide insurance for anything other than that that would arise out of the operationally gioia but even so whatever the obligation was to add them isn't just a search was limited strictly if you look at the policy that new york marine in general supplied it's named insured with integrity fisheries the owner operator of the lady johannah is sea eagle fisheries coming segal fisheries come and eat is nowhere listed in the ny magic policy as an insured and it does not fall within the  of other parties that could be insured there is no additional insured clause in the in the in our policy that was a top down by the district court by the way  the district court what it looked at what not magic was covering looked at the definition of the policy of insured and concluded that tesla did not follow within that definition it found the definition was clear and unambiguous the court's analysis found that integrity was obligated to furnish tesla with the type of insurance offered by the magic policy but it had to be a connection the not magic policy was limited to those are going is ations only with respect of operations buy on behalf of integrity well guess who wasn't there tegra integrity but only as related to any work by integrity on behalf of integrity for tesla there was none and you can't create it integrity as i said was not even at the scene of the illusion tesla its arguments for coverage address underlined coverage as a unit and if you really look at their reply brief and their original brief they've changed from sa integrity here and see eagle here to it's now integrity slash c eagle as if they are a single entity they are not the record is very clear that they are not  basically integrity fisheries had a p and i thought policy coincidently issued by the same company that issued the p and i policy to see eagle fisheries that i policy did not respond because there was no integrity vessel nor integrity involvement in the operation at the time of the election rather the sea eagle fisheries policy responded it had its own p and i policy was a wasting policy and a certain point they decided to throw in the towel and that policy was not listed in the schedule of underlying coverage in the ny magic policy so there is no connectivity between siegel fisheries its vessel its operation or anything to do with the insurance coverage which no magic provided the district court reviewed the now magic bumper sheet policy it's clear from the record it's not a follow foreign policy as some people are claiming there's a record testimony at four seven five four by representative of a company that is over the magic that it's it's an independent policy it's got its own terms and conditions so we have to look at its own terms and conditions which is exactly what judge africa the district court looked at the definition of assured and concluded tesla did not fall within that and again that was a clear and unambiguous definition lest there be any doubt we also considered endorsement one exclusion twenty five which further any coverage for tesla not magic did not provide any coverage for the benefit of tesla the court's role in interpretation insurance contract is to ascertain the common intent of the parties to the contract here there's no magic and integrity fischer's this is not a party to the contract tesla so if you look at what was intended there is no intent for not magic to provide coverage for integrity that's all that's not even there there's no factual basis to conclude it was the intent of integrity nor not magic to provide coverage when the test of integrity is not even there to conclude otherwise artificially enlarges the coverage to conclude otherwise will have a significant practical impact of the offshore oil industry it will upset the entire insurance model that we've all grown accustomed to following out there which should lead to certainty after you sign your name of the dotted line as to what your rights and responsibilities  the goal is to provide that certainty not to have parties on the risk when they are not on site or otherwise involved it would be a surprise when that happens and sure to not  operated least or charged vessel involved in the incident end of story overall it's time to finally lay this matter to rest and place the responsibility for the damages where they should properly eleven it's a specific risk transfer insurance agreement separate from and in addition to the defense indemnity agreement simply furnishing this vessel within the meaning of the definition of services is all that was required to trigger the assumed risk in law ability of protecting tesla providing insurance to tesla for third party claims that's the eleven a risk and liability contractor could have purchased a policy for tesla insuring tesla but eleven b gave contractor the right to simply add tesla to their policies arising out of services and that's what happened was integral ie involved there's different triggering language different triggering language from the defense and in the language your honor this court in the lower court interpreted strictly the defense and in the language operation of the vessel operation of the that triggers additional insured indorsement what's required you will never see this in the indemnity language you will never see connected with you will not see performance of service you will not see the definition of service those are all the insurance obligations and in this court asked who would a service if it's not operating the vessel services specifically specifically defined as a number of things but also merely furnishing the ves when integrity substituted for the integrity which broke down and that new york magic policy added the joanna to continue integrities operation service has is being performed the additional intrude on occasions are triggered nowhere in this agreement is there reference our insurance obligations are tied to our defense and indemnity indemnity separate part of the policy completely separate language be talks about to the extent of risks and liabilities assumed by contractor in this agreement doesn't say in the indemnity part of this agreement one beacon policy one big and fails to recognize judge smith decision unmask decision in mid continent all the cases i think we cited nine clearly setting out when their policy talks about liability arising out of that doesn't mean the contractor had to be at fault it means to the contrary and all these courts say if some kind of vicarious liability was being insured for tesla for the fault of contracted those policies had to do a specific job of stating that they did those cases nor did these policies clearly the sole negligence of tesla's covered as it was intended to be one big and very broad insurance agreement some is legally obligated to pay as property damage critically the watercraft exclusion only applies to the contractor does not apply to tesla the additional insured that one big and policy covers tesla's charters liability for any of these vessels on the job and every other type will solve every other type of general liability fault all claims at issue in the underlying judgement are covered by the one beacon policy if my time is your honor which it is about to your honor's we employ you to re read one a one c four a four b as set out by mr hurley you have magic ignores those policy provisions does not discuss them with the court is an excess policy above the underlying it is also a fill the gap risk not covered by the piano covers all other claims every part of that underlined decision against tesla is covered by new york magic and one beacon your honor provides coverage for all of the defense cost