sole purpose of life is to provide power to the citizens of nassau and suffolk counties in other words the sole reason for life his existence is to serve the interests of its rate payers in  now there's another authority involved which is the power authority has stated you are closely referred to as ny power many many years ago ny who was charged by the new york legislature to help promote the transmission of cheaper electricity from upstate  long island now this led to the construction of the water what's called in in this litigation the why forty nine cable which is a large six hundred megawatt transmission cable which which starts in westchester on land cable which at the time in the late one thousand nine hundred and eighty s or early ninety's was over three hundred million dollars was funded by ny post and thus very complex financial and operational arrangements were required essentially all the costs of the construction operation maintenance repair of this of this twenty six mile cable from westchester to east garden city and long island was to be paid by loco and then my life and encoding various charges etc all of this is detail in opposed the venue that sought to have a transfer to new york but that was that was the night life was certain did in fact assert some are economic claims our point is this your honor that the that the collateral estoppel doctrine the case is uniformly recognized exceptions under some special circumstances are extraordinary factors and we would submit that those factors are present here and were not followed by the district court in essence the the very clear precedent the fist circuit is that that you have a proprietary interest you certainly know i pose a cable so we are in the area of robbie's dry dark exceptions which has the proprietary interest which involves possession or control and repairs or maintenance there is no maintenance required of a submerged cable however the the fish circuits precepts we submit require actual or exclusive possession of control of the property involved here the district the magistrate judge in texas concluded that lipid did not have actual or exclusive possession and control of the submerged cable now your honor in contrast we would argue that there is a different rule pertaining in cases arising in the nd circuit and that american petroleum this court's decision on robin stride doc doesn't preclude the looking at those cases which are admittedly one case in the district of connecticut metro north and one case in the eastern district of new york in ray moran now those cases vote help me understand applied it differently and for that reason collateral estoppel is not appropriate here we would talk we are there it is a pro one of the bases and we have to macy's for trying for distinguishing the collateral estoppel argument your honor the st is that it is appropriate for the court as noted by justice white and concurring opinion to look at differences in the circuit this court has not specifically wool we would submit on these kind of cases where we have an illusion that is a moving object hitting a stationary object in maritime a maritime case such as hitting the bridge or hitting the stationary cable the court has indeed an american trolling motor robin's dried up but  is looking at the nature of the what was claimed there was no nothing got hit in american petroleum eight drawbridge was stuck you know the tug on the barge was delayed and claim damages and that's there it's a spill and then various people claimed you know all you know seafood repair shops damages we was made this is a different case the nd there's no nd case where we've used a different standard  t is there no not not the nd circuit itself no your honor that is correct what we're arguing for is that this is a this would be a new issue for the court to look at because even in american petroleum the court recognized this court recognised there are exceptions to the bright line application robin striker we would argue them i would like to briefly dresher on in my time our nd reason and we think one of the other legitimate reasons to accept call out the say that because in the context of this case it is a maritime case it was to be tried and always will be tried by judge prady sitting without a jury the case was pending before judge party for a number of years there was extensive discovery copious documentation number of witnesses the point is the factual record was well developed it was also uncontested light does not stand before this court and did not stand before the district court arguing that there were any issues  fact which precluded summary judgment the facts were uncontested the facts demonstrate without question like it is not only cable that was damaged life does not maintain the cable that was damaged i had no repair responsibility with respect to the cable responded to the spill night but was was responsible under environmental laws to respond to the spill nipe coordinated and paid for all the repairs and light still as of today six years after has not paid for those repairs it may under the agreements with night at some point in the future have to reimburse night at some amount of money that is left to as discretion that i submit to you is not a responsibility for repair our maintenance as it lacks a proprietary interest in the cable but the district court also had an alternative finding that in any event had not demonstrated that it had the necessary proprietary interest as required by by robin's the district court had before it the well developed record and recognized the key facts in that regard so in examining the collateral stoppel it is important to look at what is the law that's really what we if we hear that just now they're arguing that the law is different in the nd circuit i submit to you it is not american patrol i don't think it would make a difference ultimately because again st i don't i don't accept that at all but you know there are cases which say that the law is different in a different circuit that does not necessarily require the lack of an application of collateral stoppel but i think it is important to focus on law and i'm going to if i can direct back to that point your this court had occasion in american petroleum to examine robin's dry dock in a case that was a little different it involved the you know failure to open a bridge and what does that mean but i think what's important is this court took that as an occasion to re examine robins this court stated in reefer reaffirmed that robin's dry dock is a bright line and it can be no dispute under maritime law you must have a proprietary interest in important position that is correct so the american patrol quote did not have before at the precise question of what test do you apply to determine whether the bright line rule of robyn's is satisfied but i think nonetheless american petroleum informs the guy that the the the guidance of what the test should be because if you look at american petroleum two of the main reasons why this court reaffirmed robbins as being a bright line rule is because the court said it promotes certainty number one and it promotes the consistency in uniformity that's required by maritime law so i submit to you then if that quote the issue before the court is what test should be applied to determine whether the bright line  to you you need a bright line test to determine if the bright line rule is satisfied this court in g and g and g steal a side in the three factor test as being the appropriate test for determining if robin's proprietary that is the test that's applied consistently throughout the country it is the appropriate test now chip count refers to two district court cases that that they suggest indicates that the test in this circuit is different those facts the cape the facts of those cases are markedly different and if you examine those cases closely you will see that ultimately really what the courts were looking at was did the claimant hands the ownership or possession or cables that is the piece of equipment that was damage the testimony is uncontested life his own witnesses joined appendix one hundred and eighty eight and made it that the only property that was damaged was the submarine cable these are multitude of assets i would submit to you and agree with you throughout the entire system but what was damaged here was an isolated piece of equipment it was the under water cable they are pledged that that was damaged they focus the district not multiple pieces and intention to that in the rand case the two that in connecticut power and light they call on the cable they both maintain property insurance on the cable and connecticut power and light actually paid eleven million dollars in the repair damages markedly different from what we have here so i don't know what that is the proposition that they're suggesting to you but i think it's important to note that even in moran they weren't talking about a system the very cable was cohen but the two parties on the metro north case which proprietary interest argument was a weak one but still they would allow that to go to trial a jury trial a jury trial there was a joint trial in a case but what was important what the court noted in that case and i think this is important they said metro north we're going to  metro north is the only entity on site two hundred and forty seven it is in the best position to discover any damage to assess any damage and to take the steps to repair any damage so although it was not stated i would submit to you that essentially what the court was looking at is did they in fact have a repair obligation and actually repair obligation not a monetary perhaps at some point in the future when a burst of an obligation but an actual obligation with respect to the physical damage to the bridge who is just entitled to the a portion of the power generator transmission by cable certainly doesn't have any interest the rule is a bright line for a reason maritime law need certainty it needs uniformity in order to foster that you need  t tests that looks at the facts one that is applied uniformly around the courts and one that provides certainty not an amorphous test that looks at all the concepts thank you thing to cable was cohen in that case ran between connecticut and long island but there's a key fact that council did not emphasize it wasn't of a completely cold thing because of various regulations c l only cable to the connecticut border loco only cable on the new york side so that it was a it was a joint own table but it wasn't an undivided interest what's important in the rank case was the casualty the anchor drag such as here occurred in the new york sun so in other words c l m p's property which it own was not damaged it was locos property moreover however but under derek remit very similar to here there was that c l m p and loco was responsible for conducting the repairs wherever on the cable and whatever side but then of course e l p had to reimburse loco for the repair costs again that's very to what we have here moreover as as a judge losing noted ask a question and if we were to rule for you we would have to articulate a new test that is different from our own precedent and create a circuit split with the th circuit on the exact same issue why should we do that because this is an empty this is an important issue because this is an allusion case where it is when the court has the opportunity and plus the fact that life has in fact a serious operation control of that cable you know it's done by way of phase angle regulators which are in east garden city only light like the has operational control of the cable so there is that custody in use also life of has responsibility on the land beside a long island for the repairs to the cable soldiers or any kind of casualty their life a has to repair it in fact pay for it  doesn't reimburse them even though technically they own that they had title to the cable so for all these reasons like the stands in a position in a very different position very different position then the tug on the barge that came along was prevented from using the bridge and i would say that the case is serious enough that these this court nd circuit could use this case to examine in detail the proprietary proprietary interest in the context of a mari