p and underwriters versus atlantic specialty insurance company a question of application of opinion on your whole machinery insurance policy to claims as a result of the losses associate with the sinking of the motivational miss dorothy did it all come down to which vessel was the toe isn't that the key question that is the is the object of the tow the definitions of toe and towing tell us that the toe is the object of that is which is being pushed pulled or hauled alongside and the towing vessel is that which is pushing pulling or propulsion is that is that right that is probably correct the the the miss dorothy was in the tow excuse me the mr murphy was assisting in the towing and i think that it's important to compare what that yes well to what happened was a c g b which which charted all of these these three vessels they had been all three towing and assisting in towing of barges for for several weeks on this particular day the reason the angela ray became the pushing vessel at the stern of the board just because it just happened to be by happenstance in a position where was easier to put it there and then the other two vessels came along side that whole  are so so the mr the miss dorothy has propulsion and it has still a ridge and it is assisting the flotilla which is a point that we need to talk about the flotilla is the let me give you an example to try to help you understand the chevy chase which has been cited by both both sides the chippie case the valley forward your tug moving twenty four badges ahead that was to tell remove and take away the fuel flat after it had finished its mission of fueling the valley courage or the proceeding up the river or the other way that they were on and the pursuers mississippi river and the title and boat was moving quicker tow and the answer is yes the court found it was entire because it wasn't providing any proportion it wasn't providing any steerage is basically a dead vessel on the side which was being towed that's not what the we look to the facts and the evidence and apply the law to that facts and evidence with due respect to the district court your honor so we feel that judge feldman erred and in his analysis this is not with some further confusion as to the use of the term flotilla and the use of the term tow in the planes pipeline tell us i just quote real quick says generally when the top supplies the motive power she becomes the dominant mind and the tour is required to follow directions from the tug the time is required to follow directions for the tug then there's some cases cited and then assess in that case the tigers responsible for the safe navigation of the flotilla and has a duty to was providing a source of power source of steerage to make sure that the the object being towed of the vessel being towed is transported safely so there may be i involved in a flotilla looked to in the comparative fault analysis to determine whether they have liability or not and in that case then if the miss dorothy had some responsibility as  head that's what you look to and that's what the planes pipeline cases and the dow took to thomas allen case tell us it's a it's a matter of control in determining the towing responsibilities and the responsibilities of the tug and the t so here are the miss dorothy providing the power in steerage is not that like the title and where you surrender yourself to a vessel to be pushed or total hold this dominant mind nor the nor the toe is that right well there's a question still your honor as to who's the dominant mine it definitely the miss dorothy deftly was not the toe the miss dorothy was one of the telling vessels i think that's the best way to answer your question and if you need further i'll be happy to try to address it further well are you saying that in terms of sort of taking the lead those are my words not the term of art and sort of taking the lead or having control are you playing a role in the toe which morning your honor is harry morris the first thing that i like to address is the whether or not this case on a corner is doctrine the answer that is yes it was yes in front of a district court it wasn't contested it wasn't contested in the original appeal brief wasn't contested in reply excuse me it wasn't a tested until the reply brief there are about a half dozen cases that are cited in my brief in this case on indemnity policies and those cases all hold that even though their indemnity policies the duty to reimburse defense cost is not materially different from the duty to defend this one case that's contrary which is pendergast whole versus certain underwriters lloyds and that case is different because in that case there are specific policy language that says no no in this case you did reimburse defense costs is based on the facts in every other case it's same same so the question in front of this court is what are the allegations against the angela rae and on the issue ensured of an l nothing more than that if you were otherwise if this it were in  fact to be based on the facts that i'd suggest this is premature and what we really ought to do is wait until we find the facts at a trial and the next time a case like this comes up what i'll recommend my client we do is we just wait and see what the judge says and if we have a really good liability case then you know we win at the end and we're not responsible for defense costs because we were not liable in the first place i suggest that that would be a really good outcome for my client and a terrible outcome for the insurance market given that this isn't a corner's case the question is what do you allegations against power often employ very power to assist them in moving about harbors and ops which is to say one vessel surrender is not completely but some amount of it steerage to another vessel and those are precisely allegations in but that distinction is missing from the whole policy the whole policy talks about talks about tow in broad terms the tug is responsible for the tow now the whole policy covers in the world of things that you're wrong in the water weird historical reasons that whole policies came first this develop this way but if there's no contact if one vessel swamps another with water that's going b p and if there is a passing arrangement that goes awry but there's no contact there's no collision that's going to be he and i outside of that it's going to be under the whole policy and what that provides is ultimately a reasonably clear line if the allegations against the insured vessel are you took on additional responsibility for my safety in my navigation and you reach those duties that's going to be on the whole policy for tours if it's not if this is the duty of every vessel every other vessel on the water that's going to be a peon irish is not materially different from the difference between foreign contract which is to say duties or those duties to everybody else and contract duties are those duties that are separately assume into what that provides a nice clear line that allows us to separate one case from another now the assist tug line of cases would have merit if the miss dorothy said you know what we are in fact the assist est provision in the whole policy and the second circuit said well under this narrow language if you run your toe aground on rocks that's not a collision and in response to that the insurance market responded and the insurance market responded with an extended collusion in towers realty policy which is the exact language that since then has been in existence in the same language of doing with here today and that's any loss or damage to her so there's no distinction in the flotilla the dominant mind theory has been the case since time immemorial in effect and everybody knows the dominant mind is responsible for the whole flotilla and not just that to the dominant mind the whole is the you know these cases tug excuse me flotilla and toe are used interchangeably because they are for all intents and purposes the same thing once you address mr morse statement that the whole post policy makes no particular dish diction for vessels under power essentially in neutral the title and vessel in chitty had head to head power but it was in neutral it was not assisting in the propulsion and in a powering up of the tow it wasn't doing anything with that twenty four barge go ahead it wasn't transported from one location to another that's the definition of the toe the mr murthy on the other hand is not doesn't fit the definition that it is not being towed from one location or another it is towing it is providing power telling and that's precisely what this is all about and the dominant mind cases deal with fault and liability assessment not coverage and doesn't determine whether any of the badges in the any of the vessels in the flo power in handling it steer it when it cut its engines that shows you that it had ability to do things relative to the towing in the in the in the record there is the statement of uncontested material facts by atlantic specialty in this thread first to its motion for summary judgment i'd like to read a few of those to give you an idea of what is factual in this case and these were admitted underwriters i have twenty five seconds left and i'd be happy to answer any questions you're on as but just in closing obvious that at lenox specialty insurance company suggested in looking to the proper analysis that is the facts and along rather than the allegations in a corners on the corners rule that the and looking at the cases particularly chitti and assist to help protect cases that this is about they enjoy already was was excuse me miss dorothy was towing