here representing the appellant american commercialized this is a case commonly referred to as the nine o five detection as it was brought under the section of the longshoreman's and harbor workers compensation act which is a federal statu recognized that because it's not a common action in the state court at that it was required to apply federal signal law with regard to the application of all of the nytol five the section those decisions before american commercial lines turned over the barge to wholesome for unloading and did that defective not to fill up afterwards and i have to size the words both on reasonably dangerous and the word and secondly its burden of proof under ninety five feet and that the trial court should have granted our judgment notwithstanding the verdict all right let me let me stop you right there counsel because one of the problems i have with this case is that here are contending that the evidence  overwhelmingly favors your side that in fact a verdict contrary to your side cannot stand and yet as best i can tell there was no pretrial motion to that of fact it will lower court and it seems to me that the one inference that can be drawn in the app idea absence of such a motion is that there are tribal issues if there are tribal issues and it becomes a question for the jury to resolve and not a question for indicative of the lack of there's no question that one doesn't necessarily lead to the other but i'm certain i'm saying that we start at the position where it seems to me that the parties are at least going forward on the assumption that the to consider the evidence and you cannot engage in speculation or conjecture which is the which is what we believe happened here because now withstanding the fact that we did go through trial the plaintiff put on  according to what we believe any of that that there was rights employer who then as the group recognized i was solely responsible for supervising mr right in the vessel no longer owed a duty to mr right and the key words here in that decision are even if the vessel personnel at actual or constructive knowledge of the condition of the vessel at the time that it was turned over to mr wright's employer and similarly in this instant case where some docs employer had taken exclusive possession of the part two days before mr do stock was engaged and in let me just ask you out regarding that proposition that you've just given his son it seems awfully strict that a person who has let's take the the  hypothetical that the ship owner has constructed but once once control has passed over to the injured employees employer that construct of knowledge can't be relied upon to find liability on the part of the ship and that seems awfully strict and you believe that's the holding in that case that's the only thing that case itself holding all federal decisions that we're aware of it is it is a almost a bedrock principle because that the notion of nine zero five eight as a result of the amendments that took place is that the vessel owner was no longer going to be fit faced with the possibility of still being found negligent for conditions on the vessel once they turned it over to the stevedore that was no might have looked at it suggest that the person that seems like a very inefficient sort of thing to require the person to do if they take possession of the vessel they i would think that they would expect the vessel to be you know reasonably safe condition well it's i don't agree that it's not a difficult thing for the for an experienced and competent stevedore to do that is the whole point of nine to five feet is to place the responsibility on the party that he could not on that's correct so so what what do you believe should have transpired to have reduced the risk to the employer or reduced what eventually happened to ali well as far as reducing the risk let's let's first back off just just one step because the again there's no evidence here that at the time that we turned the barge over to hold some of the plaintiffs employer at the time the lights were in fact in defective condition and that they would you would you would you how would you address the question that can do the inspections and whatever problems they find they're permitted to fix and send us the bill which if you can imagine that you have carte blanche to somebody for doing repair work you're going to find as much repair work as you possibly can twenty five thousand pounds is a very small quantity about a buck or two as i recall of of course particles left the end of you know forward i'll hold it out you know that you know small position but that doesn't mean that an inspection of all of the equipment that's on the top of the barge wasn't up and also if you you have to recognize that then when the barges loaded the toggles locks are opened and close because you have to move the hatch covers in order to load part also when the barge gets too wholesome they opened fire to mr das box and vomit that some of the hatch covers which would have necessitated the opening of the to the question just become less than a defective condition or some other unexplained condition and if it was a defective condition which the jury could find that's a factual question that is the title  there it has to be first of all reasonable effective condition and secondly has been reasonably effective condition that was caused by a c l prior to the time it was turned over to dr spock and one that could not have been anticipated or was or was not open obvious to mr da spot and on all those points he fails remember when with the the sequence of events with regard to the uncommon she used to have to use a pry bar so that's doesn't that that means that it was not unreasonably defective because if all you need to do was use a private r and they'd have previously had that experience couple of options which were explained by mr lynch his supervisor and the options were very simple and ones that they had used prior to this time they could have utilized the crane to open the lock not preferred but they could have done it but they seem to go to contributory negligence which the jury recognizes then don't fault him substantially i but it doesn't go to whether or not the locks were in an unreasonable condition to begin with well with regard to contributory negligence dr that has to be applied in the context of nine to five feet now e c l is not required under ninety five feet to anticipate that das fact would not act as a reasonable incompetent stevedoring which in this case by continuing to try and force to toggle lodge is exactly what he was doing when the supposed to do that is supervisor said it wasn't supposed to do that mr lynch made it very clear you run into that kind of problem call me and we'll work this out didn't do that so we're not responsible for anticipating that mr goshawk is going to exceed the instructions of his supervisor and proceed in a way that could lead cases it does have to be looked at in the context of nine to five being the proof requirements of the plaintiff and that's where the major problem in this case is is that there just what we could not anticipate that mr das five was going to move forward to  resolve this problem and remember the other issue here is that when it was this defect created there is no evidence to suggest that it had been created before hand even if the repair was done as your honor was suggesting back in may or that of repair was missed there is no suggestion that the time a lock was either defectively repaired or required repairs back in may but do we know because of evidence that we presented to the court which was uncontested evidence by way of expert testimony and testimony on the part of the c l employees is that the manner in which all wholesome handled the covers of that bar on the prior day  that testimony i very experienced beat that that is just the wrong way to do it in fact it was a way that was specifically stated in materials that that to the conclusion that it was unreasonably tight because it had a defect in or because of the way it had been previously gambled by its yeah yeah but it's just isn't there and it's to play just bird to get over it and never submitted any evidence in that regard so all that's why we believe the jury in this case we speculated and they use a doctrine of comparative fault in a way that was not appropriate for this case but i see that my fifteen minutes is up  be that the courts have developed a it's more or less the reasonable standard all things considered and there's lots of pieces that say that you should take into consideration the actual practices you know in the trade in the business and in hallett there's only two supreme court cases that are cited here and one is the city case which is was set out to three duties the turnover duty which we're concerned with here the other two duties were not really concerned with here it's the duty to turn over the ship in it's such a condition that the the stevedore you know that the plaintiff here could do assume that like you know most logic be able to turn the key and it's not going to break up same thing if you ever twisted off of all dr weil when you're trying to change a tire the same thing is you know you don't think it's going to twist ah it's fun and screw like it's supposed to and that's what happened here with the guys who just an unreasonable amount of pressure and the court over the history has seemed to develop a practical measures exception and that's if the ship owner shouldn't dissipate that the steve door well go ahead and faced the danger even if it is open an obvious that he will face because to use other crack other measures wh load their barge history indicates that they're repairs done at that and that's repairing both defendants say well that was probably just a mistake it wasn't really being repaired but if you look at it you go to the par to produce you know the records from before but in fact they were to look at you know what we cited of our discovery in our original discovery we asked for all of the you know on every date when this  you know an explanation but you know where they are the inference is and the defendant is relying upon everyone following their guidelines to the letter for inspections and everything inside because they don't because of the corner of what's left for several losers corn and after that it leaves pig iron and then soybeans and if they have heard blanche authority to remedy all these things why don't they just you know stick the pump in and pump the stuff out and all they've got do is put the pump in a start pot and they can make money doing that so we think there was sufficient evidence of the condition of the locks and they have a duty to warn that's who are saying they have a duty to warn that this there was something that happened as far as on the way and in the repair records afterwards you can see where some i think some track was well that unfortunately the person who was in charge of the facility where went right after the accident he died so we don't know exactly what that this was ever actually given to the you know the plaintiff's company they've never seen anything like that and if you know the report the memo way that this is because they're concerned about you know an efficient way to open a barge so they can get the product out in the locks were not you know they may have been inspected for the time that ship was loaded until the time was unloaded but during those several months the council talked about the last forever open there's no evidence that they were ever to open it and he testified he never called his boss about that they were expected to deal with it and get back up to love the trucks that are waiting in line and whatever happen it's also certain note that whatever happened to that barge from the time it was loaded until i was sent loaded it was the barge owner's responsibility i'm sure you've all heard of that you know the phrase captain of the ship and that's where it comes from it's his responsibility no matter what happens is here to fix it or warn people downstream that are upstream is amazing to hear that there may be something wrong with you better take care may well have been something that the employers noted when it came in and they said hey there's testimony they filled out one of those for every part for there's something wrong or not and that's facts of the defendant  so i think in summary there's plenty of evidence in this for one more thing as far as a side well there was testimony that after you get half the part unloaded which was it the condition of barges in here when the plane tried with regard to the burden of proof in the applicable off i'd like to go back to what the supreme court said with regard to the united seventy two amendments to the section i five feet situations of stevedores engaging in conduct that in the face of of proven defects and course we have that question of doubt here and fault was not distinguish that that's fine i know counselor's try to distinguish that by saying that the case law can be read to say that that what the night of what we're talking about there is issues with regard to the cargo and not with vessel quitman course that's not recognized at all in the case law and in fact again and i think it was the carrillo case that was a case of vessel equipment so again there's no legal support for that proposition howard doesn't stand for that proposition we pointed out the reasons for that i won't belabor them but there in our brief as to why supreme court's decision khalid doesn't support the plate its position in that regard so there is no exception in that regard here period the fact that there was there may not be a repair record for a particular event doesn't mean that one inspection wasn't done and secondly it certainly mean that there was a problem in fact it means probably just the opposite if there is no repair record an invoice showing that the provider provided a good repair to a large audience means  in the record is that when these barges are loaded or unloaded the facilities that do them are under instruction to report any problems and authorized to make repairs when the barges are then cleaned in between cargo it's obvious you don't want to mix grain with cement that's so they're clean to clean facilities to which they're sent are under instruction to examine the barges and are have the carte blanche that i mentioned earlier to repair the parts but they're not going to have a repair record if one isn't done and not if they don't find anything there's nothing's going to be generated but it is interesting and i was interested to hear that counsel was relying in part on the inspection record that was  item on there for toggle lights and there is no check so they inspect the barge they did make other repairs as counsel correctly pointed out but title i x which is something that they would inspect for on a regular basis as confirmed by the form showed that no repairs were necessary that was after the the injury so well before and afterwards we have nothing but that doesn't mean that that repairs were necessary probably means in fact that repairs were not  and then as far as the getting back judge lampton to your question about the leftover small quantity of grain i'd like to point out and direct the court's attention to the camera decision out of the seven circuit court of appeals remembering again we go back to federal decisional law as the primary source for the longest case if you cameron of the seventh circuit all by the practice in the in the river barge industry and d that would have been done by an outside vendor and there were many instances of that between october two thousand and june of two thousand and one at the time of this incident there were six other loads and five of those would have required the opening and closing of hatch covers and you know inspections and opening and closing of tata locks and through all that process it's other people that are handling our quiz and there's no mention tells us so in conclusion and recognizing the difference that this court does pay the jury for this we believe the jury simply got this wrong that they took inferences that from the evidence that