would group production services verses director proceed and i don't know if the which display the area in question that the fix platinum offshore and that would be helpful during your questioning or whatever but i have no objection to those being provided to your honor's yes just probably know for meetings of the breeze in order for an injured worker to be covered and eligible for benefits under the l h w ca he has to meet both scientists and status in other words the injury must take place on a maritime s and the worker must enjoy and must perform his duties in maritime appointment and we're here this morning because the benefits review board which we may call the b or b or board cut or long as to both elements of mr multis daily and regular activities on a fixed platform and state territorial waters was not a maritime silas didn't take place on a covered site as in those activities as a warehouse man on a fixed platform did not  pertain to a maritime enterprise but instead were absolutely one hundred percent devoted to the production of oil and gas which the supreme court has repeatedly able to beat on maritime in nature and on the side of part as you know our fairly shallow of course but but back in the day i'm sure it was prairie marsh secured this land from the french but in any case of what happened with mr malta and i don't know the factual background might help a little bit well we've read the br are along the short of it is he received a telephone call or a radio call from the crane operator saying there's a part coming in from one of the satellite wells he was at his office chair from his computer in his air conditioned office in the warehouse stepped outside and they landed a cargo basket or carry all basket or supply basket these different terms for it but like a crab traps that once it hits the deck it just collapses in its entirety home and has a c o two cylinder came from a satellite well it was actually on a generator on that satellite platform it was not accompanied by a bill of lading or a contract of the freight mentor any kind of documentation whatsoever in fact was a part that look who knows what was initially installed out on that platform but the bottom line is he physically handle that piece of equipment on the fixed platform when it began to discharge him and cause an injury to him is means and under that the government and council for the claim have spent some time talking about the plain text in the language that was used in arriving at the geographical component of scientists that's not the case here what's at issue he is because this fix platform doesn't meet the statutorily enumerated items that meet situs it has to qualify as an other adjoining area that's where the functional element comes in and then the court has to look at what was the purpose of this fixed platform it kind of leaves the last thirty five years it's been pretty crystal clear that a fix platform devoted solely to the production of oil and gas is not  some distinguishing cases hutson versus coal still production involved a facility where they much as this one which separated oil and gas and salt water and inject that but they also had a barge on site that there were loads of product into that they would actually load into third party barges so it became actually a source of placing a product into the stream of commerce that's not the case here this is one hundred percent eight it's called the social facility is to facility where twenty two men live there in their hitch and shower and eat and do everything else while they while some of them go out into their boats to the various satellite wells and do their work of course mr bolton never left the facility he was clear about that one hundred percent of his job well what are the function of the cranes on this what is it this facility is the central facility right that's correct in their satellite silicates that's correct which residence and this is where everyone stays this is where everyone has their safety meeting in the morning and then so i mean i'm looking at definition under the section nine hundred three it says that other joining you're a customarily used by an employer in loading unloading repairing dismantling or building a vessel now why why isn't this facility at least in part custom maritime commerce if its sole purpose is the non maritime pursuit of oil and gas production it is not a maritime scientists and that's exactly what we have here but what about the significance of the safe harbor doesn't qualify this facility originally was on an island a couple of miles further west this is about five miles east of point to hash out a black bag it was originally on an island that was washed away during hurricane katrina i think the purpose of this little area as you can see on this area as opposed to having it you know potentially tied off to the you know the plus ten deck or someplace else that's pretty critical it's not a safe harbor site for a fisherman to come in and it's not a it's not a site for of seagoing vessels to come in and buy the parts from mr maule to he was crystal clear when i asked him those questions the specific questions that do you sell any of these parts to anyone else i mean chevrons out there in apaches out there all sorts of people are out there in this area if they're missing some wing nut so they can make a movie and get some from you i would imagine so your honor for us in this particular case this entry occurred because one of the workers found at the c o two cylinder on a generator on a satellite well was reading empty and it wasn't and it was brought back to the central facility where later would put on the supply supplies and equipment because that's what we all call it it's loading and unloading and other concerned about that because this court has repeatedly held in the movie new moon case the fifth circuit versus chevron that this is not chevron case that would be a case is instructive because that individual was loading and unloading the exact same stuff that mr malta would ensure would be put on these kill those and the bottom line is those supplies in that equipment must be marine cargo as that term is used and in the fifth circuit the court has expressly held that this is stuff that is one hundred percent used for oil and gas production it has no maritime flavor the threat that was do all this is is oil and gas production maritime commerce and it's not it's a circuit for many years that it was we were on the few circuits that did it and then the supreme court came out in one thousand nine hundred five and made crystal clear case not to ask about him say you go yachting you tell me about killing healings a very different matter it's you know using the old proverb of ocean's razor you know when you hear hoofbeats eat you think of horses and  of land but those people working on the barges such as mr gilliam who is actually physically hooking up the cargo on that barge he is covered by the act clearly there is a maritime component to it first and foremost a scream port perrine said if you're injured while working in your regular employment on the waters in a discussion you're covered in fact a few years ago i had to with group cases on the other side of the river involving a mechanic he was injured on the what really carries through on this i happen to belong to a work in a number of different venues shipyards and should repair facilities and true iou i only longshoremen at the docks unloading cargo from the ocean going ships that we have in port for the last thirty years this kind of work that when gas work if you're injured on a fixed platform the entire industry is predicated on premiums are charged and it assessed based on the fact that these guys are covered by the state compensation scheme based on herb some of it into a vessel and actually low cargo into their party vessels but they're third party vessels here right that are third party vessels coming into and out of the safe harbor i don't know about that broader there's record evidence so there's record evidence cited from the july fourteenth twenty fourteen transcript page thirty three and thirty four that say third party vessels are coming into the safe harbor and cargo is coming off of them so if i give you just assume that all the stuff that from the center of syllabi putting on to the boats to go out to the all the usual joe boats that are used on the field are not owned by wood group they're owned by third parties as well so that contacts i don't think would group has any vessels out here would group doesn't own the facility there were those workers there crane operators are employed by premier yet another third unloaded at the central facility like groceries or medical supplies or is that is correct and what you're talking about is the supply but that comes in of course it's a fixed platform and just like in her building they have to be supplied there is no organic water there there's no sewage there there is no farms and such so of course everything that's on air from the laundry so to the suits to the toothbrushes come in the vessels and so what would why is that not the end of the stream of maritime commerce where consumed there ok well one of these be careful about your honor is that point of rest theory has not been adopted in longshore cases because it used to become an easy distinction once it's actually landed it's not cargo anymore is it in the supreme court has no you have to look further that when the guys who are actually loading tanks onto the rail cars that came off the ship in the middle east or whatever covered by the offshore act to answer your question there is no independent commercial transaction taking place all these with major receipts indicating that the cargo was received in good order a condition that simply doesn't exist in this world this is oil and gas production but what happens on this fixed platform is no different than what happens at the fra the photographs which indicate the safe harbor and i think that's a a key component to this case that for whatever reason the appellee or the petitioner has overlooked   he got up here he spoke that for years it's been the case that if you're working on a fixed production platform then under herb's welding the industry considers that not to be a matter with maritime and i understand that your honor but at the same time my opponent also acknowledges that there are exceptions to that case and cites the cost of production versus hudson which is does the exact same thing that takes place in central facility the only thing that's different is that there was a bar that some of the oil was stored in intermittently rather than going to the pipeline there was nothing different with what the claim of coastal production did with what anybody did on the central facility location i think what's important your honor is what this court is being asked to do is to give away its function of judging the facts and the law in asking to take that away from the a m from the b or b and say we're going to act like a computer and apply this functional rule that if someone was hurt on a fixed production platform and there's no barge there then you've you've cited in the record where that's there whether or not he disputes that i don't know but certainly i think the underlying facts are not in dispute and so as it relates to the analysis that this court is being asked to do is that this is in fact something that must be addressed on its own merits central facility is not a standard oil and client gas platform where someone has gotten hurt this is a platform that took the place of a land based essentially wharf and warehouse and dock facility that was destroyed in hurricane katrina so instead of rebuilding on that island they decided to build this massive massive facility it's essentially the size of four large fixed platforms that are all interconnected by catwalks and what they did is this central facility serves as the hub for the fifteen or sixteen other satellite facilities it serves as a warehouse in the stream of maritime commerce and to the extent that there's arguments as to whether or not central facility was selling air and stuff to other people in the a thing that sort of a red herring i don't really get that to the extent that the items that were being brought in to this facility you see this building on the first page with the helicopter pa the one the larger building that's closer to it with the crane on it that's the warehouse now that's a massive structure that's a big building in that warehouse they were being supplied all of the storage  the supplies that were needed for such a facility itself and for the fifteen surrounding satellite facilities so there would be supply barges that would come in and that was to be unloaded that mr albritton spent learning and on like twenty five to thirty five percent of each hitch i don't dispute that's not in his future so in i think that goes to the heart of what's here before this court is there sort of a i don't know if it's a what the right word is but there's a confusion or a mixing between the status element and then the second part of the functional analysis with this idea of cargo like it's confused and if you see it in winthrop's briefs they've he discusses cargo the functional analysis and he also discusses the idea of cargo in the status and houses and i i think it's misplaced because i understand his concern and the argument that he's trying to make but what the issue before us here is whether or not mr martin in the function i mean in this is from the p c perfectly versus foretaste on the supreme court decision speaking to status that is not a location issue so it doesn't matter that he's on a fixed platform what the court is directed to look to is what the function that the claimant is performing and here there's no doubt that he was actually unloading a vessel when he was heard that satisfies the first way you can meet status as a release relates to meeting status the second ways if a large portion of your job is involved with loading other cases there's case all saying as little as ten percent is sufficient to satisfy that we have here uncontroverted twenty five to thirty five percent of mr martin's job was loading and unloading vessels i think what the petitioner is arguing is that a finding of coverage in this case which somehow open the door to somebody who simply getting off of a crew boat onto a fixed platform would be covered under study c i can understand that that might be concern and that's why i suggested there was a confusion between the site us and the status of it and i think in the brief council and would prove i think did a good job of outlining just court's precedent where you have to consider the flavor of other adjoining areas and i think that's how you get to you avoid that issue that he's raised as a potential concern is that this is a specialized platform this is different from most oil and gas platforms out in the gulf this is more akin to your barge facility in the coastal production versus hudson in that you're asking the b or b in the l g a they've looked at the independent facts and they said yes based on the function that's performed here in the facts that are done that are at issue here there is coverage he's loading and unloading a vessel and the facility that we're here is maritime in nature because it deals with its essentially act like a wharf and a warehouse just like the figures in facility did on the island stone island that was destroyed in hurricane katrina so to the extent that i think that's the best argument but i don't think it goes that far if you look at the individual facts of this case in this anybody that would come into before the l j are be are big be properly say yes that case is distinguishable because this is just a simple platform based on herb's welding this is a guy that frozen about in early on in his career a big part of his job was working on crew boats and going out and loading and unloading supplies and tools to facilitate his work but at the time he was hurt in the time that was an issue for the be or be in the fifth circuit he was not did not do anything as far as though you know loading the vessel he was not unloading a vessel at the time he was hurt that was not even one percent or two percent of his job he was actually vessel theory here there's no doubt that that's i think the determined to factor is that mr matson was literally unloading a vessel in in that vessel was in maritime commerce that cylinder was being brought him to occupational test focused on the loading and unloading of vessels there is no question here that such a facility was customarily used to load and unload vessels and there's no question that mr mollett was engaged in that loading and was actually injured while in the active on the  islands under supreme court law there is no separate standard in the act for islands generally or fixed but specifically they just have to meet the same standard that any other other adjoining areas needs which is to say that they must be customarily used to litter on the vessels and they must about water silly meets both of those requirements so we know there's no exception for fixed buttons because of the hudson case which was a fixed platform and this also bleeds into the exception for oil and gas workers mr can't be covered because farming is not a maritime activity the cargo what makes cargo or a site is where a worker maritime is not what is being loaded or unloaded is that is being loaded or unloaded from a vessel doesn't matter what matters is that they were being unloaded from a vessel that's what makes this guy a maritime ploy there is clearly also no exception for oil and gas cardio not only based on hudson but based on the butler's case mr bud loesch was a truck drilling equipment so there's clearly no carve out for the oil and gas industry or any of its workers the petitioner argues that there has to be some sort of additional maritime connection aside from loading the loading and unloading is the maritime commerce that's required so if a if a worker is actually doing that learning in a loading he's covered now the court has looked for an additional connection for workers who were not directly involved in the looting and will work stopped with the loading operations breakdown if they would he's integral to the letting up aeration is and he covered if they wouldn't and he's not well first of all i don't think that test applies to people who are actually doing the loading and unloading vessels but if it did we know the loading would have broken down here because mr malta was one of only two guys when he was on duty who was loading and unloading ships he was it was him in the creamery with everything going to stop i inventory in the warehouse water supplies and things back that was another thing that he put things back on a vessel to go back to shore for repair he would send the tanks back by those of us so he was a warehouse worker affectively for except for the times we was actually loading unloading stuff from the warehouse or to the warehouse cult what they called it in this case was an off shore dog they didn't use the word pier like they didn't that in or before but here they used the term it functions like an off shore dock so i think the fact that whether it's an open body of water on the marsh doesn't really matter in fact if you go on google maps and you can actually look at it you can see it's a seaplane base now but you can see all the pollies worth the facility used to be bottom line here is still has to have a maritime purpose and that's where the disconnect is i think the supreme court was crystal clear dealing and came up before the supreme court allowed these other cases came up before the supreme court where they said the fifth circuit you got it wrong oil and gas production work which we had always held was maritime commerce is not maritime commerce so all the stuff that you're doing and in the media case itself that this circuit said while loading in the moving of ships was undeniably required in order to complete these tasks that fact alone does not really warrant our concluding that medea thereby engaged in marathon employment you're doing well on gas work you're not doing long shoring work and there is a carve out it's not something i wish for it's been in place for thirty five years and it's that's a home mark of this particular area of work that gets done in the gulf of mexico  again the courts have consistently said this circuit has consistently said that is not the loading the number that we're talking about yeah there is a global wished for uniformity in terms of handling maritime commerce but this report has carved out and herbes wel percent did dispute that the record shows that or that's what he testified and again the facts aren't in dispute i mean there really aren't again just like i cited to him again loading and unloading the ships is undeniably required you know any fixed platform even the fixed platform of herbes welding had to be supplied by loading or unloading a ship this guy had to eat and they had a drink and they had to brush their teeth and all that kind of stuff so the loading unquestionably takes place the distinction here is that this has been carved out by the supreme court counsel for the government said that the last case which is a truck driver who actually was injured on a barge in adult waters on a fixed platform again that's the distinction that particular case it was a case that talk about side is for guys who kind of go in and out of coverage and what percentage of time qualified as maritime employment that's not the issue here because again he was a truck driver this is a guy who works one hundred percent of his time at such a facility never gets in the boats to go out to the satellite wells that's what his testimony was it's i'm not going to quibble the facts are pretty clear that he didn't do cargo work he didn't move things around and actually took inventory of the toes on that arash because that was his job to make sure that whatever the  but his computers that is supposed to be on the board for that day know he wasn't the crane operator he didn't do that he wasn't aroused about he didn't pick up the cargo he was the warehouse man so at the end of the day what we have here is a total lack of any kind of