marquette and i'm going to let you pronounce your name because i'd say there's a very low likelihood that i would get it right there that's exactly how it's spelled it's shelled as it was s h a l l d o n i all right thank you  cases that has like a lot of defenses in the past and the same is has happened in the general maritime law when certain causes or rights of action have been granted to the plaintiff gone through a period of expansion and then gone back through a period of contraction where it falls into balance our position today being that you cannot consider the liability of the employer in this context of these facts without looking at the primary duty doctrine because it would ignore the reality of the unique environment that that's all employing that provides and that you start off with a great disadvantage which is that there couldn't be a more experienced judge in this area than judge fallon and he knows this area  extremely well and as highly highly reliable and took a lot of care in this case to get it right there's no doubt that no judge found i know we couldn't teaching also as an adjunct faculty member it too late i respect him i know him as a person  and know him as a judge but the result that we have here today i would submit to you is just not in balance in the results of the treatment of the employer vs the treatment of the employee we know that touch power is one of maybe one of the more liberal district court judges but what we're looking at here today with is a almost disregard of the rights of young people you know and he doesn't is our call he doesn't use the term primary duty or primary duty theory in his opinion doesn't and earlier opinions himself but they were always involving cases that involve lower ranking crew members and once it involved the captain here what is unique is that we're dealing only with the master of the vassal but we're dealing with the one individual who was injured when no one else aboard the vessel was injured are the exact same circumstances and we're dealing with the one individual on the vessel who did not follow any of the safety protocols that he not only knew what he taught and he enforced but the other the other person who entered the room with him was i was not aware of the non compliant footwear and yet also schlepped isn't that right there were actually three individuals who ended up entering the entering the engine room the lower engine room that would have been the captain there was a deck hand trainee that is cory cross and the lead man which is basically the senior tech a and so to those individuals but wearing compliant gear they would ever enter the lower engine room which is an entirely distinct issues should you have ever even gone in there but assuming that you even enter the lower engine room he had on proper personal protective gear and second thing he did knowing that there was  a known condition this is not a condition that you encounter without any advance knowledge knowing there was a fuel leak he turned at the bottom of the stairs he turned to the left and went to the opposite side of the fuel leak was on turned on one generator turned off the other boy did the spray didn't fall the captain rannie and slippers he fell immediately upon stepping on the deck but he also ran directly into the fuel part of that goes back to two different issues one is dealing with an emergency situation but he is also the person responsible for teaching the fire drills aboard the vessel that captain dunn says that he knew this was an imminent risk of fire he wasn't entering the engine room he wasn't responding because he was trying to stop  se wasn't because he was concerned about a slip hazard being on the floor even though it was a slip hazard he wasn't doing it to save diesel fuel he did it his testimony was clear because i thought there was an immediate risk of fire that triggers a separate set of as they are trained on day to day safety and this is and he's the individual who trains that they're trained on personal protective gear situational awareness then a flying slipping trip hours or it's part of their basic day to day in and out training but separate and apart from that they have to anticipate emergency situations on these vessels they have to dissipate that you may have to respond instinctively when the company's safety director testified he testified for almost half a day his testimony is omitted completely from the district court's opinion he said we have to teach muscle memory when we're in stressful situations that's why we drill every single week for fires and there's one thing that we do we muster the crew which is important know where anything that which for years that he trained to do to respond to this he simply ran out of the wheel house and his slippers did not then a fire plan didn't speak with the pilot on what he was going to be doing randi rectally into the lower engine room w known fire risk then becomes disabled on that gap if you take a look at it at either one of those two scenarios we have somebody who is in control of the vessel who he is responsible for teaching  safety protocols and who is responsible for teaching enforcing the fire drills aboard the vessel yet that same individuals the one who follows none of those procedures when he believes that there is an imminent risk of fire and that turns out to be the only individual who's injured in this incident so we have a green deck hand who is able to stabilize himself wearing a proper foot care and we have a senior deck hand who walks into the same situation whatever pressures w failure to where the proper footwear is that right he placed heavy reliance on not exclusive but had exclusive reliance but i think it's relevant it's well the we look at it in two ways one is what did he do to follow the safety of the day to day safety protocols second record and under that you would use where before you ever enter the engine room it's a rule he knows it's a rule that he's one of the reason i'm saying i'm repeating maybe a little bit what i said before but the record the record shows that the other that at least that one of the other employees wearing the proper footwear also slips fortunately was able to grab hold of i guess it was the engine or whatever to keep himself from from falling but it just it's seems to me that that as a logical matter at least for the finder of fact that fallon removes the footwear as as an issue in the case because the footwear apparently was not the cause one way or the other as it would be impossible to know that when you go down in slippers what we know is that the captain went out and fell and went directly to the deck he never was able to study himself we know we had two other people who were  to avoid the fuel altogether and the second who encountered the fuel but was able to study him self to say that if you do you don't need to wear where or when there's a slip hazard present because it's slippery anyway puts the employer in an impossible catch twenty two is you could not tell the employer it's ok to have a policy where you do not require people to wear slippers system choose even when they enter the engine room environment that we know and is dead it's detail in case law is being impossible to maintain without some oil present you can't have a free engine room it's a possibility well they have a standing rule that you can enter that without slip where without slippers and shoes but we're going to say it's ok to not use them because oil is slippery anyway so you put the you put the employer in a position where you say you would be liable if you didn't have a policy requiring slipper system toots on board your vessel but we're not going to mandate that anybody use it in a situation where because when there is a known slip hazard present i don't want to get into an argument with you about slippers this bridge because i think there's something on the record to contradict what you're saying but i want to circle back to this primary duty which is what you hang your hat on to a great extent in this case i'm as i understand primary duty and you correct me it means that the officer or crewman whoever has to be totally at fault and of course judge fallon found no comparative  what you were asking me and that the judge didn't do any analysis of the primary duty doctor in his case in order to determine whether or not this person whether or not whether or not he met his standards what he did if we took one would talk about whether or not there was a balance in the court's analysis of the evidence we would look at what was the evidence that was presented to the judge there were three live bill there were three witnesses who testified on whether or not the captain that his duty one of those was the surveyor who was qualified certainly not more qualified than the other two individuals the court did not analyze and it's opinion the testimony given by either of those other two individuals and the testimony given by mr nichols scoria fuel so that he didn't get onto the turbo charger and that that didn't put anybody at risk and then the court excepted that piece of testimony from that one witness that it wasn't necessary to use look persistent shoes because it was slippery anyway but the great way to the evidence was against that it was that actually following this company's safety protocols would have avoided this risk in fact people who did didn't get injured and that if we would follow the fire safety procedures what they drill will be no need to enter the engine room to begin with which brings me to a point see at the watch my time brings to the point of analyzing why we were in the fall of the drills aboard the vessel as opposed to running into the engine room when there's an imminent risk of fire you don't and enter the engine room at all it was a horrible risk assumption by the captain could have killed himself or other crew members there's a remote fuel shut off that sits outside that so you could activate that it would have terminated and you don't even go inside that space i thought there was a valid reason given for not doing it that way which i can paraphrase you but you can correct me it had something to do with you turned everything off at that point clearly the the vessel would been more or less left at floating in a dangerous position so there and that was the rationale the court use whoever the the overwhelming weight of the evidence was against that it assumed that the judge found one assume that the vessel was pushing ahead to chemical barges but the pilot in the wheel house in controlled vassal at the time said they were like that and that is the only way that the deckhand who spotted the fuel leak to begin with would have ever spotted it if they were finished landing the barges he came back on board the vessel looked in the engine room and saw the fuel wait he also said we've landed two barges then we left the fleet there in the intercoastal waterway they're not it say they are at a fleet they had just used in the system to help them bring these two barges in and drop them of the fleet and it was captain dunn who went to the wheel house to help the pilot land the two barges in the fleet because the pilot was having difficulty in the wind doing that so there it would be a virtual in possibility that they were still pushing ahead two barges at the time this happened they had just released in a system out there in the intercoastal waterway there next to a fleet there is no situation that would be more attune to shutting down your fuel assistant to come help you you're in protected water should have no barges that clear overwhelming weight of the evidence was that they did not have two barges the pilot directly testified who's in who's in control of assholes that know we could drop the barges and we were like th and the captain and doug made it that they had just released an assist vessel who was right there close to him the last point is whether this individual could expect to have other erupted future earnings as a captain he had just come off of t all regarding the primary duty doctor and that is a doctrine that is very seldom used by the courts it is one that can only be applied when the pla consciously assumed a term of duty as a term of his employment certainly mr dunn did not assume a duty to maintain the equipment on the starboard generator either generator on the vessel also i it does not apply where a seaman is injured by a dangerous condition that he did not create and in the proper exercise of his employment duties could not have controlled or eliminated again the hazard the risk that the condition came from the improper maintenance of the improper maintenance and repair of the starboard generator valve that began to leak and third the rule is only a will only apply to a knowing violation of a duty consciously assumed as a term of the employment it does not apply to momentary lapse of care by another rider otherwise careful seaman and that is coming from the treatise to the law of seamen section thirty colon for for contributory negligence fifth edition now i'm not even suggesting by any means that there was a lapse of care by mr dunn the overwhelming evidence shows that his decision to enter the engine room was appropriate that was supported by korey crespo who enter the engine room before him contrary to the suggestion that he was at that canned training he actually was the senior deckhand on duty at the time there was a leak ice ice cream you acknowledge that it was unwise for him to be wearing the non compliant for i would say in a perfect setting yes he should have his boots on to go into the engine room if you if you look at the facts your honor he had just gone he had woken up he was off duty he heard the engines backing down he went to the wheel house and the assisted captain brown to right the ship because he was lost in a current he took the sticks he was a very experienced captain very good at at  righted the ship so he saved the boat once he goes outside right outside the engine room and just shortly there after they get the call from down in the engine room now he's still off duty he's still in shorts and a t shirt and is his nike athletic slide that's when he gets the the call so to so he's faced with a choice there there's an emergency situation everybody agrees that with that  to accept their proposition you would have to accept that mr dunn should have gone back to his bunk room and laced up his steel toed boots  when he just heard that there's a diesel leak in the engine room i believe and i believe that the fact show and i believe judge fallon found that the most prudent course of action was exactly what mr dunn did he proceeded down to the engine room he followed mr crespo into the engine room they both stepped on the diesel about the same time they both slipped mr crespo caught himself even though he was wearing the proper p p shoes if you look at his testimony if you look at his statement in the record it's clear that he was slipping and sliding in the boots really did nothing to would have done nothing to prevent mr dunn's fall so this is also supported by captain nichols who has much more experience than mr gee the expert who was actually a marine surveyor had never testified before this case as a safety expert in any case has no published opinions and in judge fallon chose not to give his  he reluctantly let him testify but he chose not to give his testimony much weight so i want to focus also remind me how long was that was the trial how many hours or days or whatever it was a two day trial nine to five each day it was very efficient but we weren't well we should question ok and so some of the testimony was presented by deposition testimony including mr junior brown who suggested that they had tied off a load his deposition was taken about a year and a half after the accident that's contradicted by both mr dunn's testimony that they did have to loaded chemical barges and the twenty six ninety two form submitted by more cat to the u s coast guard the claims representative who completed this report and it's in the record at  twenty three zero two this form clearly shows that they were transporting two loaded chemical barges at the time of the incident this was done after some investigation and information was given to mr duke by the crew and it shows that they were they were not tied up they were traveling at approximately five knots with a five mile room which would have resulted in loss of propulsion loss of steerage loss of lighting at in darkness in a busy ship channel pushing two loaded chemical barges red flagged barges with possibly benzene or other more hazardous materials i think that suggestion is absurd and what could have resulted had he done that it could have resulted in mass casualty and judge fallon was well within his discretion to find that mr dunn act reasonably under the circumstances mr dunn's goal was was to save the vessel yet again and to turn off the generator that was leaking and power up the other generator which was ultimately done by another that can't now as far as as far as these actions of mr dunn were looking at ordinary prudence under the circumstances according to goto and the court again was well within its discretion and finding that he did he did act with ordinary prudence also what was not discuss d was that in extremis that applying judge fallon found that this was an emergency situation and so the conduct of mr dunn should be judged under a less strict standard moving on to the issue of damages marquette does not contested the general damages awarded it focuses on the future lost wages and the future surgical procedures however the future last wage issue mr dunn was a was a high wage earner as a boat captain and that's all he knew was working on the water he had worked his way up through the ranks he was a deck hand for about fourteen years and then he was a captain for market for approximately five years he only has a ninth grade education and his reading comprehension level is only that of a sixth grader the award was based on expert testimony miss a well qualified vocational rehabilitation expert she gave reasonable alternatives to as to mr dunn's transferable skills and what he could do and judge fallon agreed with those with those opinions of challenge as far as the future surgical procedures mr dunne was only thirty nine at the time of this accident he's got a quite bleak future as it relates to his hip and his lumbar spine so he had four large bruise implanted into his femoral head and the need for the two future hip surgeries was supported by the x expert testimony of dr craig greene a hip and trauma specialist it was also set forth in judge miss child's life care plan which was introduced into evidence and she testified regarding that now their own doctor dr sinak testified that he would need a total hip replacement although he did not comment on the need for a second hip replacement but judge fallon rightly found that hip replacements do not last more than ten or twelve years and that is supported by the evidence in dr green testified that mr dunn will need a total hip replacement before he reaches the age of fifty regarding pain management and that this relates to the lumbar spine mr dunne was found to have  herniated disk at the l four five level as well as spondylolisthesis which is defined as the shifting of the l four five level and dr mccarthy explained that the vertebrae move back and forth he testified that the best approach is conservative care as long as he can handle it which would involve injections in the radio frequency ablations at some point he will need according to dr mccarthy a lumbar spine fusion and so in awarding those damages again judge fallon had ample evidence ample expert testimony in the record to support that awar moving on to the argument about his future as a boat captain absent injury mr dunn was if you look at the record if you look at the human resources expert employee that testified mr landry kirk if you we the claims examiner who looked at mr dunn's employment records and his personnel file mr dunn was a stellar employee for market he had never failed a random drug test  he had never been written up for any disciplinary issues he was a loyal servant to the company and he was injured in the service of the vessel now in the five years that he was working as a captain he did take two breaks he took a three month break in two thousand and thirteen and he took a five month break in twenty fifteen there's an issue being raised by more cat that one of the medications that he was prescribed the advantage is a controlled substance and it would prohibit him from operating a vessel that is again that's absurd because if you look at the record mr landry kirk admits that in and thirteen when he was released to return back to work he was done so by mark katz physician chosen by marquette they sent him to dr hawk and she examined him and said you're fit for duty and they knew that he was being prescribed the out of hand and he was told you cannot take it on the boat and he never did as a side note after this accident he was drug tested no alcohol no controlled substances were found in his system so if you stop and think about what mark had is arguing that he would be disqualified from operating a vessel as a boat captain they knew he was taking out a van and yet they put him at the helm of their vessel how does that make sense i just i can't understand it and fallon did not give any credence to that argument and was well within his discretion in doing so the judge well i'm i'm sorry judge fallon absolutely i was i was within his his discretion i would also point out that dr rachel wizner was deposed in this case and she did not testify that he had a progressive preexisting anxiety condition dr wizner testified that in the summer of two thousand and fifteen he was getting better she released him to return to full duty she admonished him do not take this controlled stuff substance on the boat you know only take it when you're at home she was aware of his hitch as well and she did not expect that he would not be able to continue working as a boat captain  he maintain his his medication regimen she also thought that he would do well as long as he continued to take his medications and she further testified that she treats many patients in her family practice who take these types of medications and they function in society and they are gainfully employed or used to have time for and shift to a discussion of seaworthiness yes well as you know judge marquette has duty to provide a see where the vessel and that's where judge fallon started off when he in his written reasons the valve was leaking it was spraying diesel in the engine room a vessel is unseaworthy if it's unfit for its intended purpose clearly a vessel with a leaking generator a generator that is used to power the entire vessel that's not a c where the vessel of a vessel is a fuel gauge it was a fuel gauge in the starboard generator that starboard generator was powering the entire vessel but it was no longer it was no longer safe at the time to operate it because it was leaking the diesel fuel so when you have a condition such as diesel on the floor of the engine room which makes it slippery which makes it unsafe that's an on and see where the condition of the vessels not it's not safe it's not fit for its intended purpose it can operate in that manner now the cases cited by by more cat they suggest that there is a transit there's a there's a lot of cases where there's if there's a tra condition if there's operational negligence i want to address those the transit condition involves cases where there's just a temporary condition that might be considered unsafe such as there's a fish story case out there where the fisherman yes you're going to have fish slime on the deck and it takes time to move the fish in to clean the deck well when you're up when you're working in that condition and you you know that you have a duty to to watch out for your safety there's also a case cited where it's there's a mist that comes up every morning and so the boat gets wet from the condensation from the d and that's a transit condition that might absolve a ship owner from liability because a seaman a prudent seaman would know that under the circumstances that is not what we have here we have a condition that was the judge found found was caused by the negligence of marquette in failing to properly repair the the fitting they had worked on in a mere three days before the incident and the the leak came from that exact spot furthermore getting back to the n c where the miss that's a non delegate will duty this is in and see where the condition on their vessel  vessels not fit for its intended purpose and mr mr dunn encountered that dangerous condition and was injured now in conclusion as you know questions of negligence and fault and causation are factual findings it's a clear error standard of review i have yet to hear anything from from our cat to  show that judge fallon committed clear air it was he did his job by evaluating the credibility of the witnesses evaluating the facts of the case  applying it under the law and if there are differing opinions as to how as to what factual what facts you want to focus on that's within his purview if the district court findings are plausible in light of the record viewed in its entirety this court may not reverse even if you would have weighed the evidence differently and reached a different conclusion and i will point out one last thing there is some focus by more cat on the negligence issue and that there they they suggest there is no evidence that more cat improperly maintained or improperly repaired the valve in question well market violated its own policies and procedures they failed to prepare a root cause analysis and we focus on that in mr byron thompson's testimony he violates his own policies and procedures in seven days they should have had a root cause analysis telling us telling them why the the valve failed and what the crew did wrong they did not round up the crew and say you should not have gone into the engine room they did not tell anybody how the valve failed nobody told anyone that kelvin dunn did anything wrong until this litigation until they brought up that tactic and i think that's very important and that's very telling they want to suggest that well that they destroyed the evidence they took that the head snap or whatever it was that failed they didn't preserve it and now they want to bury their head in the sand and say well you can't prove exactly how it failed so you can't recover that's not that's not what the courts intended when you look back at the at the history of the jones act and the general maritime law  fault if it did not provide safety here if it didn't use its own safety gear with the vessel or would we allow it to say that it did not need to have an emergency protocol or that there was no need for the employer to follow emergency protocols when there was an emergency would we accept from the employer that there was no reason to follow to real compliance with any of those things be equally treated with the employer in the same circumstances that there is no evidence that the employer failed to have a maintenance program on this so there's no evidence that they failed to have safety rules that they didn't have emergency drills and that they didn't provide a remote fuel shut off it could have been used all of these circumstances what about the point about the root cause analysis the root cause analysis is something that the employer can choose to do but it's not a basis it's really time that they're liable that would be a discretionary function that they can choose there the testimony was that they do it in some instances often in litigation when a case in this case went into litigation very quickly often in litigation the company's not going to engage in a parallel real way it's not in the record yes it is in the record that ordinarily in litigation a company would not great in a root cause analysis there's testimony from from byron thompson the safety manager when he was asked that question he said well we are engaged in that right now he said we have a case where they're already taking testimony they're already we're hiring experts and so we said do a root cause analysis they don't do want every single accident and and they didn't initiate one in nine now they looked into the case where they didn't initiate a root cause analysis and days and what is the basis if any on the record for destroying the evidence what will well what was it was that the mechanic carried the valve off with him when he repaired it you know there's any evidence that he destroyed it he said he went on he this is the same mechanic who had replaced the fuel filter housing and he did that voluntarily he went on to do another repair on the vessel he was maintaining the gears he voluntarily decided to go inspect the fuel filter housing that was service that generator because he knew in the past that deck hands crew members going over ten ten at sea when they tighten the fuel filters down to ben that housing a little bit it hangs out of the ninety degree angle so he went in inspected it he found sabera line fractures on it and decided be better to go ahead and change that out now so he took that off replace it with a new housing and when he did that he took this the fifty fuel pressure gauge which had a stem on it unscrewed from the old housing and then again spec today he said that we have both he testified and the director of engineering testified and so we have no history of these things ever failing but he took the  end he when he came back aboard the vessel he found that that it that it had broken he said he took it off i put it in my bag and i left the vessel and a little he said i just don't know where it was didn't say didn't say he threw it away he said when all it worked on two or said i've looked i've looked in my office i've looked in my tool bags i just can't tell you where because there's no evidence that he destroyed the intentionally threw it away but we do know though is that that condition was known before the captain or the engine room so we talk about conditions like slime on the deck or water on the deck or a transit condition regardless of how bad that sail we know that the pressure gauge didn't hit him in the stand didn't hit him what happened is that he fell responding to the fuel that was on the dac condition he knew about before you entered the engine room and a condition that they train for their safety programs train for their drills so we're dealing with the response of the employer has to have a mechanism to respond to things breaking it's impossible otherwise they have to have a method of saying fuel is on the deck we have to be able to respond to it if we create a person a situation where we're still on the deck therefore there are no safety rules there's no reason to follow the protocols you can walk directly into it and follow it then we've created an absolute liability scenario for the employer where they can't have a process that they could eliminate the liability moving to the advantage because i see that i'm out of the target is that was the only prescription that he was having re cases are under submission and the court