river has been a channel for commerce for well over two hundred years and a quarry i stone quarry has been operated out of out of the clinton point facility on the east bank of the hudson river least sixty miles north of new york harbor for over one hundred years as well under various names that person and that worker must establish that he or she had a substantial connection to a vessel by virtue of his or her employment that was substantial both in its nature claiming semen status who does not spend or commit time at least thirty percent of his or her work day over a period of time to perform work in wagner was a barge maintainer although he was taint is employment of twelve continuous years at this facility through the operating engineers union he was a barge maintainer and it's enjoyed that he would spend one hundred percent of his time except for short breaks aboard either the barges that he was maintaining with two or three others assigned for that task as  on a small boat that was utilized on the hudson river which is approximately a mile wide north of here at six at this location and in so doing he would initially in the morning as he did that on the morning of the accident  may nineteenth two thousand and eleven he would board the barges in the empty rack which was located on the south side of the loading dock the barges were used in a continuous operation from clinton they were taken fully loaded the hudson river with large crowds and there they would be more for a short period of time at greenhill morning here in the harbor would ride on the arch he would not he would say he would remain at the facility he would maintain every number each and every one of the barges with two or three others as they were rotated through the clinton point facility he would perform his duties throughout the day first on the unloaded empty barges and what's look for water down there when the barge was untied he would on tie lines or ropes just as him and and then a smaller tug called the push operated by still can't own by you can and would then take it out into the channel and maneuver it with him on it typically into the into position that he would be on the barbie on it during the yes before and during and after the learning process but not act case for benefits received in the present value of benefits of the future my understanding would be taken into account in the final judgment however i'm not an expert in luxor harbor workers compensation benefits i do know though if he is not deemed to be a jones actually meant in his action he will still maintain his rights when the logs are hard workers act but it is not dispositive that he is receiving benefits are claiming benefits or might receive them in the based upon common law negligence tell conon was responsible for and had control of the vessel for a short period of time during its loading when the stones millions of pounds of sand that were wet having been washed were dumped from the top overhead into the box or to the cargo hold of the vessel starting at one end and at that time it was in the sesame of maintaining that the barges ability to maintain flow you know in the water was still and navigable water at that time they were tipped up in the air and when volcano what would be on the barge was on the barge pumping water from the hole the water was once it was lifted and the air of the heavy end down as it was partially loaded concur with is that there is and there's evidence that the gravel that was on the narrow margin that on the at the time and place and date of the slipping something answered that mr volcker had that gravel got there either each and every occasion with these barges they're designed so that the water will drain out from the bottom of the cargo hold through these weepers and scuppers which are nothing but holes with screens and many of them were rusted and out of repair and the stones would arguably traditional segments duties i don't think so your honor i think if you look at the purpose of wine and on time lines well ye and then there bring them to the dock couple hundred yards away and the barges would be loaded and then they would move to another dock another couple hundred yards away where they would be inspected to go back down river or about the inspecting for leaks and making repairs aren't those traditional seamen students i don't think so i mean keep in mind these these are barges that are unmanned there are no crew members on these boards the crew members on the tug boats what they're responsible for is making up the tug boat to the barges they usually move down river in a in a group of maybe eight or twelve and when they're going down the river in transit with the tugboat pushing these barges they have duty such as to make sure that these barges could be loaded and and then make sure that they were safely to go to go down river reese mines disagree well there he will then i don't think so i mean if you know judges buchwald and rake off looked at very similar cases not necessarily in regard to loading of barges but people who work the board tug boats not not barges but tug boats which does have a crew and port engineers who fix the engines who perform all kinds of mechanical work and they found that that their duties were  not in nature a seagoing duties and some of these individuals even sailed with the tugboat when performing their duties because what it really comes down to your honor is that the work that he was performing in and around these barges which were essentially tied to the shore doesn't expose him to perils of the sea which is what is given to jones axeman who are exposed to those perils when they have to abandon ship at sea when they have to fight fires on the river or at sea without the aid of any local fire department coming to their rescue because they're off shore having to face the elements of on a dock and who could fall into the river or trip on hazards aboard the boat or something like that and these aren't the kind of protections that are given to these men and if you if the circuit were to give these kind of distinction and there clearly has to be a distinction because the jones act is an exclusive remedy for jones axeman and it doesn't include the remedies or to listen with the low surely harbor workers compensation act you're either one or the other and this man i believe basically looking at the nature of his work in the peril that he was exposed to was not a jones act seem like time is up your money thank you date of the accident after it had been loaded now i want to point out to the court that the testimony is a little bit different than that which has been characterized in the papers basically all of the witnesses have testified that stone during the loading process if it's the right size stone will come through weepers or scuppers that have cages that have been rusted out in fact the testimony from also falling into the river which can cause navigable problems around the dock so the other issue is where else to that stone possibly come from and claimant relies upon his own testimony saying that well some stone probably comes over the sides during the loading process doesn't say that it did so it's probably testifies no i've never once in a while there's a minor amount of stone that will come out and contest the fires that you know if the loader goes too far he doesn't error in judgment don't make him out but no one says that the stone that the claim fell on on the date of the accident chain from the loading process spilling over the only thing that's uniform is that the stone came through the weepers as a stone is wet and we water to to run out that's the testimony in the case even if this court were to find that there is some question the fact that the claimant has something to establish that he slipped upon stone that fell out over the top of the rail the district court still correctly is not the employer therefore the issue of jones act whether he's a seaman or not has no bearing on till concert sponsibility there's no evidence that t supervised mr vulcan anyway there's no evidence that took on ever owned maintained or occupied barge b two fifty two so kind of ploys did not even the stone is dropped down onto the the barge and then after the stone is measured by mr khan he will actually is the only took on a point that ever will board the barge and that's simply to measure the product so they know what to build a customer but otherwise there is no other involvement the stones on the deck is an open and obvious condition and i believe that your honor ways back on all of it it involved an individual who delivered product to a location but didn't deliver it the way they were supposed to requiring the person who was receiving that delivery to do something that they normally would not do and they suffered an injury during that process and basically your honor indicated in that case that there was no duty that was owed to that individual because it wasn't delivered all the in this instance and are from our point of view