who turned to star indemnity versus water quality insurance between two underwriters involving costs and expenses incurred to lighter and refloat to grounded barges in the mississippi river with a combined thirty one thousand barrels of can't well which is a known heavy and hazardous oil in this appeal star contends that the district court erred in determining that the barges did not pose a substantial threat to discharge of the oil product in those barges that the lightning and refloating were not undertaken for the purpose of preventing such a discharge and had genesys not undertaken the salvage efforts it did the coast guard would not have ordered genesis consider everything great detail and we need to have pointed out to us where where there was fault and then it should be your honor so just to go back to the coast guard evidence that we secured it was a joint request between the parties to pursuant to regulations to elicit testimony from the coast guard i'm sorry right and the coast guard only allowed  deposition by questions and the procedure was agreed upon between the parties where star would have ten set of questions asked would have ten set of cross examination questions and then we'd have five and a week us would have another five and that was agreed upon between the parties the court allowed that evidence and after it would the deposition by written questions answers were submitted but then also did not give it much credit and i think that's the st point didn't for clues the decision by the district judge as to what we need to give to the average presented you're correct your honor but we believe the court should have extended chevron deference to the coast guard responses to the deposition by written questions are you making a legal argument that chevron deference applied and therefore the judge got it wrong on a legal basis correct or not on a weighing and balancing of the this is this is a question of deciding a fact of the trial i don't know that chevron deference under these circumstances i mean she this woman was just one witness there were other did was other evidence brought in well she was i'm sorry you know different concept when that when that when an agency gives an opinion about what a statute means within its competence and we accord chevron deference but here it's just a another form of  evidence and why wouldn't he be free to examine this evidence and then all the other evidence and decide what weight to get well your honor let's st look at who provided the deposition direct question as the federal on scene coordinator representative she was the point person the person in charge of this response she gave her responses much like a thirty six witness she relied on her personal knowledge speaking to other coast guard representatives that were there and the coast guard file with the courts should done once it received this and there's a there is case law that says that the coast guard which i don't think anybody disputes is tasked among other things with determining whether a substantial threat of discharge exists under oath they have that right to come in formed misinform that there was a small discharge no your honor she she did not say in her deposition questions that there was a small discharge the court referenced a to the appendix page three hundred and ninety six where these are notes by the coast guard from april th which is right in the middle of all this was going on and where they described a substantial threat to loaded jumbo tank barges carrying approximately fifteen thousand dollars barrels each can't oil have run aground and do you which i believe means damage undetermined so th contemporaneous records from the coast guard do support what chief petty officer heather norman said in her deposition by written questions with the court should have done because the coast guard is tasked and they did response they responded immediately to the incident and they say eventually ended up sending a strike team who specialized in dealing with pollution issues it should have applied an arbitrary capricious standard to whether or not it should to whether or not the evidence was that it should adopt or give deference to the coastguards finding of substantial threat and we don't think that the court could matt mate could reach that determination because in addition to the notes that i had previously referenced there was contempora kemp temporary sevens by the project manager from t n t salvage which was the open ninety salvador who stated that the coast guard in its discussions they had daily two pm conversations the coast guard indicated that it was concerned with the sure whether there was actual substantial threat of discharge with the courts and that's a fact finding by the district court based upon the evidence before the district court well we believe under the law courts should should have done the analysis of whether or not it should extend deference to the it should extend finding of the coast guard it should not have independent you would make that same argument if we were talking about a deposition and that witness were live in the courtroom before that before the district court you have any case  one witness from an agency comes and that witness is to be accorded chevron deference well we have case lower the coast guard was given chevron deference for finding a substantial threat to discharge and we also have a decision the jones versus grande river navigation and that was between two private parties which we are here today which st the court look to see whether it could apply chevron deference and when i the district court determines these all these issues on the basis of credibility and the and an understanding of the all the totality of the evidence but i don't believe that you would do that with an f b i agent if the statute doesn't say that that's his don't understand this argument about chevron deference being in this case where you're talking about a factual determination whether it's true but we're entitled to we're entitled to submit the coast guard because  court testimony there's no question about that and the court should under the law because the coast guard is tasked with determining under its best authority under and the national contingency plan to determine foundation but on the deference point two things quickly st this was not a deference case that the court below this is the st time this issue has been raised on appeal and it comes frankly too late it's it has been describe in a moment where they're trying to do is overturn a five day trial a forty six page decision written by general myers based on live testimony live witness testimony witnesses who were on scene at the time as well as deposition testimony exhibits and expert testimony and throw that out throw that finding out which was as has been pointed out here already a detailed thorough investigation by the district court judge throw i favor of a statement by a chief petty officer given under questionable circumstances to which the district court found no weight should be given and throw it out not because of what should be the standard here because it was because the finding of the of the court below is clearly an error but throw out about finding because deference should be given to a piece of evidence which the court weighed its raw ability of and determined it was want to determine in fact it was false and throw out the the results of a five day trial in favor of a false statement by the coast that just cannot be that cannot be the right test and and chevron does not permit it either this is not a chevron case as has been pointed out chevron is applied where there is an ambiguous statute or regulation where there is a gap in the law or regulation that needs to be filled by by an agency there is no such gap here the on the contrary the court agreed with an adopted the coast guard's and it's found in chief petty officer norman's written answers to written deposition questions it doctored the definition she cites of substantial threat of a discharge which is found at thirty three c f r one hundred and fifty five point one zero two one and that definition is that a substantial threat means that there is a quote significant risk close quote of a discharge now the court below agreed with that interpret it on its plain meaning using even a dictionary definition which is found in the decision of the court below and found that there was no substantial threat so there's not an end ambiguity that's been filled by the agency here there's simply a a statement by two years by the way after the actual casualty two years after the after the casualty the the agency came into this court came into this case with a statement of dubious merit and i ability and the court weighed its probative value and rejected it and that's the exact evidence that the plaintiffs now want this court to base a overturning of the decision below on again that cannot be the forty six dollars page decision finding there was no substantial threat was entirely based on factual findings and just to remind the court of the of the of the the result with which  said quite clearly was that quote the salvage and wiring was undertaken here to liberate the stranded barges the evidence does not reflect and the participants in real time did not conclude that there was a stanch the risk of discharge rather the evidence overwhelmingly showed that the barges by their nature and in the circumstances at hand were never at risk or anywhere close of the type of failure that might have resulted in an oil discharge there could be no clearer finding  fact by the judge below that there was no substantial threat of a discharge and that should be the end of star's case that should be the end of this appeal nowhere to a star argue th finding of no substantial threat was clearly erroneous they don't try to meet that test they can't they try to run an end and make an end run around the clearly erroneous standard by citing the deference rule but chevron again does not apply there's no issue here of agencies reasonable innes the court below that in fact there was no determination at all that's the the really the kernel of what the finding below was was that a statement made two years later by chief petty officer norman in her written answers to written questions which said that yes we thought two years ago there was a substantial threat that not only was there no contemporaneous corroborating evidence but that there all the other evidence credible evidence by other witnesses by the salvatore's themselves contradicted the statement by chief petty officer norman and that's not all in the record is the entire coast guard file on this incident it runs three hundred and thirty four pages it starts i believe it a three hundred and thirty two and nowhere in those three hundred and thirty four pages if you read them does it ever say substantial threat or so stanch will threaten and that's the touchstone that's under opa that is what reason required to be found coming back to the insurance aspect of this case point as been pointed out was a claim by an insurance company as another insurance company and it was a entirely factual dispute star had to prove what happened here was when the barges grounded and subsequently were stranded when the river mississippi river dropped in so that they were left high and dry on this sandbar completely flat even keeled they were still in strong barges no threat of a spill no spill in fact ever occurred and no concern about a spill this was a salvage operation pure and simple it was how do we get the barges off the strand that's what everybody thought of in fact the judge below said quote simply put the court finds the genesis and salvor t n t were not motivated at all by an actual or perceived substantial threat to discharge he says the coast guard quote did not perceive a substantial threat of a discharge articulate to other players that there was such a threat or take action on the basis of such a threat that was from his findings of fact against subject to a clearly erroneous standard you like me a little bit on why this procedure was followed well what happened here was that the parties agreed that they would they would approach the coast guard and ask for a deposition the coast guard refused to give a deposition and instead said they would answer written questions and then they dictated the coast guard dictated the means by which the questions would be posed and then it would through general counsel at the coast guard it was something someone within scrap that procedure no there isn't in fact there are regs that say that the coast guard is protected from and does not have to give a deposition they do not have to give any they're protected from from coming in and in fact could have refused entirely to even answer the questions there's no no requirement that they do that but they then dictated the they dictated the the method by which the question be asked and oddly they call questions directly exam questions and cross examine the cross examination when there was no cross examination all the questions had to be put to them at once and they answered them all at once so there was no opportunity to to then go back and challenge them on anything and this is done on the so called t controls the presentation of of evidence to the court right entirely theirs they leave no option to the to the parties to give what what they wish to give and as i said could refuse altogether and are thank your honor i just want to make one thing clear counsel represented to the panel that there is no indication in the coast guard production of the words substantial threat and appendix and ninety six dollars which was part of the foia response from the coast guard page sixty five dollars at point nine says description of substantial threat colon to load a jumbo tank barges carrying approximately fifteen went through to basically the end of april beginning of may so this is right in the heart of the response by the coast guard there identifying in their own records contemporaneous with what was going on they believe this to be a substantial threat in the court did not recognize that lho did not even refer to it insta cision below but it's clearly shown in the documents from the coast guard that they did contemporaneously can consider this a substantial threat  addressed and this was part of the package of evidence so submitted to the court of the package it was it was submitted as evidence to the court and was addressed by us also mr wood suggested in the beginning of his argument briefing that when an agency is charge or the administration in construction of a statutory scheme rational determinations by that agency are given considerable weight and we actually cited several case that probably doesn't go much yes  have a chance to before your honor was just about the coverage is provided we believe that the evidence that was submitted both by the coast guard and the contemporaneous evidence from the salvador and those involved in the project should have led the court to determine that there was a substantial threat to discharge now there's three coverage areas in the us policy that we believe would provide coverage for the expenses that  well done to me thanks for your time thank you thank you reserve decision