of good good morning your honor jeff tillery on behalf of nature's way any p g barmen protection were i was going to try to mention a few things that were not clearly stated in our brief so there's not to repeat what's contained in our br after the valleys in the early ninety's congress an active old primary purpose of the main purpose of the world was to designate a responsible party who would pay the cl innocent people and the cleanup costs the theory of a bill was to avoid the fight you would have one party designated by the coast guard to pay the damages of the innocent parties such there would be a fight and then that responsible party could go fight it out with those people he thinks are negligent i would suggest to the court that if the lower courts definition of operator under oath stands that the entire purpose of opal will be frustrated for the following reasons each responsible party for a vessel from which oil is discharged is liable for the cleanup costs and the damages responsible party is defined as someone who owns operates or demise charters the vast the square question in this case i believe putting aside the procedural arguments that we have made regarding skidmore unchaperoned deference and all  is anybody else to have prevented ya from running into that bridge understood the facts in this case which have not been decided because the summary judgment will demonstrate that this accident was really caused by the fault of a third party which was the government for bar of the barge that was being pushed there's not a there's not anybody else so you always have the third party issue regardless of whether you're held accountable only for your vessel or for the vessel you were pushing that's always going to be true that you can say a third party caused this the bridge didn't have been there or whatever the push to store the bridge or whatever your argument is that's always going to be true so i'm still having trouble with who the heck else is responsibility financial wherewithal they would fight that instead of just paying that one response it's all just paying those we would find out soon i mean what is your gift the guy with the most money should pay which is maybe superficially so the question is that operating is not defined and that's what we are going to sign and you wrote that i guess what you end up doing is going to the only case we've got is the argument of the best foods decision the supreme court under circle and that decision talks about two definitions of operate operate in the verb sense and they talk about like operating a sewing machine you can operate something if you're operating a sewing machine that's sort of a verb you're operating the sewing machine the second part of the definition the second part that the supreme court said applied to circle of the second definition said but operate in the organizational sense and that's clearly what it means in the environmental context to operate a business to conduct the affairs of the business operate according to the supreme court means must manage direct and control the operations related to pollution manager direct and control operations related to pollution here nature's way my car my client just to barge from one spot to the why should we in import that clause into this tell me why that is the correct way to interpret the text there there's no other cases directly on point ok and i think because they've indicated that similar the language is almost the same in both circle and obama on the definitions and i think the courts have said over the years you can look to both the statutes and similarly type statutes for the definitions and their analysis i think that's it that's all i've got to answer your question directly there judge so is it your argument that even though you ran into the bridge this should not have shared the oil and that's why this company management argument makes sense not why i mean i'm saying we've never actually moved partially negligent holding to my other argument put the oil into the water no question about it but that the case law says the responsible party of the vessel from which the discharge happened is the responsible party but it says it owns or operates so you know it had the owner where my could've made a barge that's very leaky that's one set of circumstances the operator the guy pushing from mars could take a very nicely secured barge but you run it into a bridge and there's only so much any thing that you build can withstand and impact and it breaks your oil so that's why it's owner or operator  could be that it doesn't say own or any and operate that's what happened here it says owner or operator and above that twenty seven to seven says each responsible party for a vessel responsible party it doesn't say responsible trial but it doesn't help you here at best fair i would suggest to the court that it should be considered by them as to what will happen in the future if you put it this court permits to responsible parties if you permit them to like they did this case to designate an owner and an operator as a responsible party nature's way next nature's way the next third coast they hit a bridge instead of paying the innocent parties off right away fighting among whose that fall to nature's ways going to say ah they said the third post was in there cause you say no it's nature's way it fresh prince the actor that's my only one hundred is not who's the wealthiest it's what is likely to happen and i know you you're thinking statutory construction judge but if you saying there's only one when functionally speaking there certainly could be more than absolutely your honor that can only be one designate by the coast guard to pay the initial damages under the purpose of open then there are lots of responsible parties the responsible party to pay the initial cleanup to cover the innocent people is the strictly liable one but not to be negligent at all that's why there are coast in this case as the operator should designate and they work along with nature's way argued all sorts of them one of which is it was informal proceeding i didn't have the right to cross examine anybody there at that hearing nothing they also admitted the coast guard report we talked a lot about that being an inadmissible document and they ca a we don't even get to the ambiguity argument understood from because it's so procedurally irregular that there's no entitle meant for deference but there would be other types of deference there would argue be appropriate they know this is all new nobody ever really made this decision this is a definition of operator opens someone new and what not so this is not in his store a plea of expertise of the coast guard an agency with respect to good morning your honor jennifer you try to have the united states government may please the court your honor this case presents a simple legal question whether nature's way which was pushing a barge at the time of the accident was the operator within the meaning of the statute and the plain and simple answer to that question under any under ordinary understanding of the term operator is yes when it is there only one responsible party no your honor if you look to the text of two seven o two a specifically says that each operator and the other entity was the owner could hold them both accountable and then if one of them steps up to the plate and pays the whole thing then they go and they see you no contribution from the other guy yes rather it works yes  weird about there's nothing weird about that in fact that's exactly what happened and are by definition owners of tug companies somehow poorer than owners of vessels i mean we were have a discussion about the big ship in the three little times i don't know that the company to the animal and now six of the statues to the also the statute if you are an owner operator to my charter you are responsible party you are strictly liable and it does not matter how much money you have it for upfront at the time and in fact  these certificates of financial responsibility are merely one way in which a tugboat or any other boat could protect themselves from potentially being liable for such an oil spill cleanup all those have  big contracts such as this one where a tugboat knows that it is pushing a much larger vessel it can ask to indemnify it sell through the contractor can ask to be added as a party to the certificate fuck financial responsibility guarantee it during the course of this so is that the answer to the insurance problem posed by nature's way which is when i'm getting the insurance in advance i don't know the weight of all the charges i might be pushing around and so it's going to be kind of hard to get the insurance you're saying deal with it on the contract with the barge oh now that's exactly yes or yes you're exactly right this is a matter that has to be worked out between the owner and the operator and their engine and their  that's actually what happened in this case is that nature's way was able to take over the cleanup in advance because it had additional insurance it was able to handle this upfront costs the coast guard designated both third coast and nature's way as responsible parties here i believe that the the best coaster the best foods opinion is actually illustrative of how these decisions should be made best foods endorsers an ordinary understanding of the term operate the discussion in best foods was primarily about whether you could hold a parent corporation liable but the best bet for it specifically says that anyone who directs manages or conducts operations related to the pollution is an operator and here tugboats who are directing the navigation of these barges which was the exact thing that was related to the pollution they are operators when they cause the accident based on their decisions that avocation ok and then we don't have to get into whether there would be a need chevrons with those procedural regularity and in deference whatsoever we believe that whether it is chevron skidmore or to nova review that is the correct understanding of the term operator in nature is what was so he can just avoid all of that i correct your hon tug and a barge but in this case the barge was improperly constructed in such a way that it could not withstand even slight you know brushing up against something and it just explodes when it touches anything and so the operator brushes by not rams into a bridge but brushes by a bridge and the thing explodes how would that work here are that obviously presents more difficult question i wouldn't direct you to  i believe it's one of the footnotes in our prefer that says that tug boats do have to be assured of various cargo storage before they actually are pushing barges so they do have in that sense some requirements to make to ensure that that is the case designate the operator and the owner as yes possible parties yes but nature's way in this case in my hypo my not step in might say no man you you lied you gave us this ridiculous barge yes but that would be with either under a suit for contribution or under admiralty jurisdiction these things would be worked out on the back end but in the front it wouldn't change the statutory construction the fact that really it wasn't ultimately the negligence of nature's way in my hypo it was the fraud and m negligence of the barge owner in having a spin skull barge so to speak is not even relevant at all because under are under a strict liability for the body so in your habit yes they could have designated a matter between them that's all that matters case as you suggested in your hypothetical case what might happen in the next case if you can screw operator as way the government wants you to do is nature's way might not step up and bargain might step up because the pope designated as a responsible or that's the problem litigation when people don't do what they're supposed to do what happens they get sued this is what keeps us all in business understand important but what you're doing is increasing the chances i guess is a better way of saying it that there will be  somebody else of the r p that's just a lot easier for me to come in and say you designated somebody else is the r p so i'm a pe and let's have years of litigation what's your answer to the citation to each responsible party which would seem to imply there's more than one or can be more than responsible party and it says or articular vessel from which the oil is discharged so i would submit to you that the construction of that is each responsible party from which the oil is discharged is one party is either or the operator owner or the marsh trucker not the owner and operator like happened exactly in this case the point