compel reversal of the first point regarding a dangerous condition at issue in this case the lower court granted summary judgment and said i'm quoting the lower court said only a defect in the vessel or in the vessels equipment triggers the duty knowledge of the operations and how they were being improperly performed as opposed to actual knowledge of a dangerous condition involving the vessel that's correct and i think that's the distinction ward the district court went too far  to your position news any time someone on the vessel in a position of authority sees that longshoreman are doing something that may be risky or dangerous the vessel leave us alone yeah but the vessel even in this case knowledge is at the vessel has the authority to step in and intervene and shut down the operation when it when it wants to so i wouldn't know it has a duty to monitor the operations are if it se operation it thanks it's dangerous it's got to set it shut it down it does not and i would make a distinction between just when does it have to shut it down when they recognize that the stevedores exercising obviously improvident judgement which is what the supreme court said  and continuing their work in the face of unknown danger so it's not just a little risky behavior it's not just they're doing something a little negligent it's the vessel has to have an acknowledgement of obviously improvident judgment in continuing the stevedores operation intervene that's where all this comes this any a court said that when a vessel acknowledges it's obviously improvident judgment by this their duty to act arises at that point they have to intervene seems to me i got an evidentiary problem see what's going on but there's no evidence that they know that this is a dangerous can condition i think there is evidence the captain actually said in his deposition you're that's the captain not remember correctly so there's i think there's actual knowledge that operation was being done without a flag person you hate that and without any kind of alternative warning system to warn the longshoremen of what was going on over there dead in the end then we have that does it show that the captain knew the opera crane operator lacked unrestricted visibility on the day of the end that's true but i think it becomes and then and then you've got crew members who may know that there is that lack of better visibility but there is no evidence that the crew members knew that that they needed a flag been correct because we haven't been able to depose the crew members they are basically russian citizens and we haven't been able to find it but what we have is your honor not evidence it just seems like you don't monitor the cargo operations for safety and for proper use of the lifting devices which is the cranes that cause mr jackson's death so from that a jury got to know that there's a dangerous condition i don't see where they have that in the cafe you've got evidence that they have that the cabin but he said that he knew that the operation was being conducted without a flag person without anyone going over and over again the same thing but that you had method that there's no evidence that he knew about the problem with risk  unrestricted i agree with that and then i think it becomes a jury question as to whether or not this operation was so dangerous that the stevedores was exercising obviously improvident judgment what is your best decision i think there to what is your best decision of the supreme court of the law and circuit that the vassals knowledge of anything other than a dangerous physical condition puts an obligation in other words if if somebody for the vassal observes that the longshoreman are engaged in risky behavior what's your best holding that that imposes an obligation  was a puddle of grease which is i don't jurist condition not dangerous activity by a long shot and i agree with that and the only point citing clarke is that the district court's decision is court is more narrow than review of its decision as you know these circumstances goes it's not factually based on to the extent there are fact finding simplicity in it it's clearly erroneous review on the law to the facts a puddle of grease is a dangerous condition longshoreman operating shorthanded they are in a risky way is not a dangerous can dish and that's dangerous behavior in the distinction i think that's important is that conditions are more in in the province of the vessel and that the thing that the men months were designed to do in the thing that a lot of decisions of helmet law known is we're not going to put the vessel in charge of supervising the longshore that's correct the case that i would cite would be davis versus here in parts and read yuri which case where the ninth circuit found a danger in that so you have no supreme court or eleventh circuit case there are not at that yields with the operation there are not there where the weapons are responsible for intervening in the operation correct i fact any any operation any decision as to whether you're supposed to have a spotter is a decision of of the longshorem operation davis versus part in revere which is a case where that the vessel was lowering cargo in a close proximity to the gangway that was the only thing there was no defects at all no gear was defective it was defective it was just the manner in which things were being done by the vessel said by the vessel by the vessel they were lowering the cargo too close to the gangway and the court said that the vessel could be held liable in this circumstance here the danger was not the ves danger was the longshoreman's method of doing what they were do that's correct that let me also spend some time talking about the custom because here even when it relates to custom the lower court said that because view that absent custom to the contrary ship owner has no general duty by way of supervision or inspection to dangerous conditions what cindy has said is look if you don't have a custom to do these things we're not going to impose that duty but if you have a custom to do it in you didn't hold it it didn't hold that it there is because you have that right but it said that custom alone can import that duty in the first circuit said they have just that exact issue just par they said a duty may arise if the vessel owner was obligated by custom to monitor stevedoring operations for the purpose of remedying unsafe conditions at scale or versus u s and also england versus ryanair so they both address the issue of this custom that can be related to monitoring stevedore operations for the purpose of remedying unsafe conditions which is exactly what captain said it and that takes you to the factual dispute we said spans were the vessels might customarily can overrule unloading procedures that he believes would damage the vessel yes the customary authority to do this nevertheless that falls short of suggesting that the make was about custom obligated to assure the safety longshoreman or inspector dangers growing out of their work correct i think it depends on what the factual circumstances are of the custom on that vessel he customarily can intervene and overrule the longshoreman's procedures if he believes it would damage caused damage he can't be here the captain went farther and the captain said we always placed two or three people on the deck of the vessel spacers of monitoring for unsafe practices and he said if it's unsafe we demand terminations of the copper cargo operations being carried out and was that testimony enough to establish a custom i thought of custom would be it is some kind of generally a sack of accepted practice and the end astri it i think the testimony is enough of my time is running short pushers or their pencil get together and say look if we monitor these and try to protect the longshoreman we're going to be held liable but if we don't if we say your own your own voice good luck press the red button to someone's an ambulance then we're not responsible so let's don't have any customs that that tries to protect the longshoreman and that that's a that's a perverse incentive when you sign i wouldn't say and here's why i say i don't think it holds true the england case in the us vs killer case at exactly that this case is evidence that this will still continue to monitor the cargo a lot well we haven't extended that to this circuit and other words we haven't told him if you do anything to protect the longshoreman we're going to hold it to you and if you negligently do it or don't do it at all or somebody is looking the other way you're going to be liable for i mean that and that that's bad economics and bad law just in the courts concern but scindia impose that language and what else could it mean that they have a duty to act in accordance with the customer because of what that well it could mean custom throughout the  morning may please the court my name is tim schuster and i represent and what i k refers limited and cool carriers on behalf of my clients i ask that you affirm the trial court's summary judgment holding that the ship owner cannot be liable in this situation because no defect in the vessel or its equipment was demonstrated in my view of the nine hundred seventy two amendments of the alongshore act and scind what those mean is that there are no instances in which the vessel can be held liable for the negligence of the stevedore and in this case the only thing that's alleged are things that  remedy resulted in an injury if it was a dangerous condition of the vessel or its gear for instance you mention before a grease spot on the deck sometimes that can be a dangerous condition of the vessel if the source of that grease was the vessel for instance if the hydraulic hose on the crane starts leaking oil if the force of the grease is a previous longshoreman operation  vessel just leaves the grease there i mean i just don't see how you can say that can't in any circumstance be liable for any theory that results from longshoreman negligence if it's longshoreman negligence plus if the vessel had that duty what cindy clearly tells us is once the stevedoring operation begins that the vessel has no duty to inspect or supervise the longshoreman so and in this  case that duty was met we met the first duty the turnover duty that's conceded so we turned over the vessel in a reasonably safe condition after that scindia tells us that we're allowed to rely on the judgement of the steve dore as to how he conducts his operations and in this case i agree with your comments chief judge carnes that it would be an odd situation if the vessel came in and didn't have its own safety plan  i think it's settled law that the vessel is always responsible for the cargo for the vessel and for its own crew members and so it has people on back and what the captain testified to also was that the purpose of those people on deck was to keep an eye out for for the cargo and to keep an eye out for the vessel so if they're using the crane in some way that's going to damage the vessel they would go and talk to the stevedore and i think the captain clarified he couldn't run out and tell the the longshoreman anything all he could do was go to talk to the stevedores superintendent if someone told him something was wrong and he testified that prior to the accident no one had raised any issue with the crew or with him that there were any dangerous conditions that the longshoreman were facing and i think it's an important fact in this case that on this issue of the flagmen in this in this instance the same vessel the same longshoreman unloaded the same ship the week before and the evidence in the case is they didn't use flag when then it in use flag when later that day after the accident when they resumed operations and they did use flagmen in the next three years before we took their depositions and law just checked us to fight they had been discharging for chips in port manatee since around two thousand and three and their custom was not to use a flag when they had their i think that the sent the narrowest way to rip resolve this matter to say that even if there were even if we ascended there could be a duty and intervene he didn't have sufficient evidence that would be the easiest way to do it  s but i think the eleventh circuit precedent on this in the cases like clarke or or a lamp in or probably one hundred case all of those cases mentioned the the vessel knows about and has some duty and i think the confusion of dixon's position in some of these cases where they're arguing a duty to intervene through custom for instance the gangway case that was mentioned or the the morning lines those really aren't duty to intervene cases the other thing the scindia tells us is that the ship owner can be libel one if it actively involves itself in the stevedoring operation or if something goes wrong in an area of the ship that it actively controlled and what we see in those cases is for instance the the the case with the morning lines is that there was a custom that the ship stayed actively involved in tending the morning lines and they breached their duty of care and tending the morning lines same thing with the gangway that they there was a custom that the ship would stay actively can actively involved in maintaining the gangway and they breached their duty we don't have that those facts here dixon argues this issue of custom because the me because the ship had a safety plan and because the chief mate and the third mate were out on deck but there's no evidence as to what the chief mate or the third mate were doing the longshoreman testified they had never been down in the hold the longshoreman testify they had never talked to the crew members about anything and the ship's superintendent from the  stevedores side testified that he didn't tell the ship anything about how they were going to unload the ship or how many longshoremen they were going to use so i would also argue that that for there to be a custom there would have to be some evidence that the ship actually supervised or did something to control the long shore operation for the benefit of the longshoreman and we don't see that in this case also think the definition of obviously improvident judgment has been taken out of context in scindia to the discussion of obviously improvident judgment related to a defect in the ship's winch and the fact  that it had been defective for a couple of days and the jury could find that the ships ignoring the use of its own equipment that was defective could be obviously improvident judgment  think the best definition is in the greenwood case from the fifth circuit where they say obviously improvident judgement is use of a piece of equipment that is so obviously defective that it's obvious to anyone that continued use is a danger and we simply don't have that here we have different opinions perhaps of use of the lifting tray but we don't have anything that involves the ship's equipment i think it's important all of this equipment was provided by the stevedore one final thing i wanted to address or two final things the issue of the alarms that was raised since we met the turnover duty early think that's a red herring that if the ship was regarded as safe by the stevedore without those alarms everyone knew those alarms were there then the the operational he didn't get to the separate issue of whether the time charter was was libel it seems like in dixons briefs they describe the vessel as being the owner and the time charter as if they were jointly and severally liable but there's no case that says that the time charter would have to have some independent acts of negligence the only evidence in this case is the time charter didn't have anyone on the  fourth circuit and the ninth circuit have all had issued opinions where conditions not defects in the vessel or its gear have found vessel liabilities you've got basically the end coast of the united states with the fourth circuit the fifth circuit the