such as this it didn't provide all the answers and because of the neat unique nature of this case that is it's a direct victim sexual harassment case we think that the answer we provided in the jury instruction we provided but you do agree that the instruction that the district court gave was consistent with gotcha say that again the instruction that the district court gave the jury was consistent with scotch almost well generally and consistent with god shall we where does if this were straight got showcased the same facts would in this instruction be correct well maybe if the facts are different but but where you're dealing in this situation i think the courts use of danger and immediate risk of physical harm has the effect of as i say you know making a double dose of i don't use phrases both appear gottscha danger and the the this course when it looked at the stacy case took zone a danger to mean immediate risk of physical harm and so when you put both of those terms in there you're kind of saying if she was in the immediate risk if she was placed in immediate risk of physical harm and feared immediate risk of physical injury it's a double dose it's like saying you know she she had to know judge gave an instruction derived from the gottschall decision i understand your argument that in sexual harassment cases something more is required by what we're spending one a time in a preliminary matter and how much your interest in your answer at least this does instruction was faithful to gotcha was it not well i tried to answer as best i can ok i think using both i think including the terms of the danger and including immediate risk of physical harm puts a double emphasis on the term immediate and especially in the context of a case like this i think that creates an additional problem because you what should in your view well i think what should it be is this i think the court in you know  in nelson versus metro commuter the court there talked about the problems with the term immediacy and and looked at that and said that that does that mean spatial proximity some degree of the likelihood of significance of physical or maybe some of all of us in when you get to these sexual harassment types of cases which really are fundamentally different than the issues that were presented at fox in gosh well because this is a direct injury and those situations when let me try this differently because  difficult your jones act claim by definition is a negligence claim right yes so it's for negligent infliction of emotional distress correct the mechanism history and other stuff right but then we have don't you have to shoehorn it into the negligent infliction of emotional distress and the now you see where this crime is different i'm sure and that's what the court did in  which is the case that we cited and all of which are jury instruction was based on what the court did there was to take a look at the cases and and and and and perceive that with respect to these kinds of cases the with the real question it is is whether depends entirely on whether the actual or threatened physical impact placed plaintiff in reasonable apprehension of physical harm and that really is a way of ok sort of talking about there's a lot of danger test a physical impact here was a an issue and that's been problematic it hasn't the the kick the courts jurisprudence on physical impact seems to require some form of intrinsic harm associated with the flow of let me do you do agree that this physical impact your client so testified didn't didn't place her in imminent fear of physical harm it isn't the physical impact that placed her in there ok it is the other circumstances of this which frightened it went to the jury let's assume the jury was appropriately instructed for a moment you know you think it wasn't the jury was told that the captain was an agent the only claim was really that the captain did this not that the note th of the ship did the captain was an agent the jury found that the captain acted in during the course and scope of his employment so it found out that the so it you didn't lose that because of the finding of non agency but it necessarily find that the captain didn't do what you said he did or alternatively that even if he did it your client didn't suffer any distress from it i think the jury instructions by the way it was phrased characterize the situation so that the jury would need to perceive that the captain was outside the door and prepared to strike and they didn't and the evidence did what i asked you i asked you to assume that the instruction was accurate so my question is if we reject your argument that the instruction was inaccurate we now have a jury verdict that rejects your theory of the case is a matter of fact what does that do to your other claims in other words have a seaworthiness can you going to show more than negligence you're going to show a savage disposition or something like that and if the jury found that the captain wasn't even negligent how can we find a savage disposition oh well see i just don't think that we're there with that situation because of the way the in jury instructions struck but you keep you keep changing my hypothetical you keep saying jury instruction is wrong if the jury instruction is wrong you with mike i miss a different question if the jury instruction was correct doesn't the jury it's our opinion that the court misapplied the law because he required plaintiff to show a savage and vicious attack and that just is the law is it can you can you do you have a yeah right that the problem is that the courts conflate the the attack cases and draw facts from those instead of looking underneath it for what the reasoning is in support of it i mean the cases are clear that what we're looking for is the disposition of the  find it right now but that it it would that the issue is not the acts of the perpetrator but the nature of that person's disposition and so these assault cases put the contact with someone you haven't see with visible contact is is required and i don't think there's anything in the analysis really so your answer to my question is yes it requires evidence that shows a well just not just that it is just it goes to more you have to have indications of the the person's just position so in this case we've got a situation where the captain of a tanker shi lures a person aboard the ship whining to her about his intentions his feelings and and then you know behaves in a way that is so outrageous that it puts the cook i mean the behaviors that of this captain on that ship wouldn't be tolerated by any shoreside employment and in fact they weren't all rated by a p l they fired him probably over this situation good morning your honors albert peacock on behalf of the defendant and appellee a p l marine services in this appeal the plaintiffs asked this court to create brand new law in four separate areas first the appellant asked the court to change the jones act and in particular the gottschall decision by the supreme court on what elements are required to prove negligent infliction of emotional distress and  to disregard the gotcha old decision which requires either a physical impact or an immediate threat of physical harm and to go back to the third circuit genuineness test which was rejected by the court in go was her claim of emotional distress genuine under the facts of this case and that's not the standard that the supreme court sets you think the supreme court adopted a narrower standard than the common last  emotional distress and they identified three different tests that various states applied one was the physical impact requirement which was very strict which some states apply they found a zone of danger test which other state courts applied which was a lesser standard and then they had the third party witness standard for lack of a better term and it evaluated the benefits and the detriments if you're already with the standard that has to do with where somebody witnesses the death or serious injury of another party then you have to be close closely related and you have to observant person correct and we saw that in the chan case in the ninth circuit and between those three standards the supreme court shows for application  act the medium zone of danger test and they said under the common law that the states use under the zone of danger test these are the two elements that are required physical impact or immediate or eminent where the two words the supreme used threat of physical harm and that was the standard that they oppose to apply to the jones act no court has carved out sexual harassment as somehow having a different standard for negligent emotions and what claim in your view josie member who is sexually harassed some of it occurs at sea half in the absence of physical damage in the absence of physical damage they would have to show that there was an imminent threat of physical harm to them and then they could recover under the jones act so there is no from just your your opponent on several courses of action in part because this is an unusual circumstance so what you're saying is that if a female crimp crew member sexually harassed at sea by by her superior unless she can shoehorn her claim into the jones act area she doesn't have claim no title seven your honor title seven is the federal law on sexual harassment and wrongful termination title seven is federal law it applies aboard a u s flag vessels on the high seas that would have been a claim beyond the jones act it could have but wasn't for whatever reason asserted in this particular being groped by the captain is that sufficient physical injury there are two parts to that question first i don't believe that reasonable apprehension is the test under god i believe god shall set a standard where the jury has to decide whether there was an objective imminent threat of harm or at the since there was the ject of reasonable threat of groping under the case law that is applied the god sha test to sexual harassment the answer would be no that as a mere groping unless it was a groping that was intended to harm the female see men and did harm would not disney group harm a female seaman psychologically i believe it does but i don't believe that that's that's the current state of the law it has to be that has physical harm the harms physically not psychologically j jury and presented evidence that not only was she not at risk because there was no history of violence but but by my point is that they got to say to the jury look i'm she's got to say she was really worried or she was in risk of physical harm because this guy she unlocked the door was going to hurt her correct and the instruction would have allowed the jury under those circumstances to find in your favor would it not correct it would have your honor and they didn't correct what do you make of that you for it is a finding of no harm or is it a finding of negligence i believe there was a finding of no negligence and i realized this morning that neither side put the special jury verdict in front of me right about why but i read the special jury verdict we trying to figure out what to make of that does it mean they found that the captain wasn't negligent does it mean that they found that even if he was she really wasn't harmed whether what's the effect of the jury verdict by view your honour's is that they didn't believe that she was that imminent risk of physical harm or that he was ever a threat to her that was the evidence present concern us i assume that that's the case what does that do with respect to the seaworthiness claim the seaworthiness claim don't suffer physical harm that you can have a c were things going for emotional harm i'm trying to figure out whether or not any emotional harm claim remains in this case in light of the jury verdict which found that there wasn't a negligent there is no case that says that emotional distress without physical harm or a physical attack is allowed under the common law and see where this doctrine so let me ask you the question i asked your colleague to assume you have the worst above the physical assault the case law requires that that assault be vicious the evil well requires that a result from a savage disposition of the of the assault are correct but there are cases in which there were physical fights and even though there was a physical attack the courts have determined and see where the needs didn't apply to has to go beyond the normal risks of being c correct and typically those cases require either a long history of violence on the part of the attacker or the use of a weapon or a very very severe injury and none of those apply in this particular case and that's another area where the appellant in this case is asking this court to create a new standard to lower the bar that was set by the yes your honour's the other area that the appellant asked this court to change the law and is whether or not california state law applies to a u s flagged vessel on the high seas and the california supreme court over one hundred years ago said that california law while it may apply extraterritorial e in the absence of preemption or some violation of the commerce clause of the us constitution will not analysis of the attention of the state legislature i don't recall either your honor but to say first off that was not a fee ha case and in this case we're talking about feet but also in that case the court pointed out that there is a debate or a dispute between the state of california and the federal government over who owns the santa barbara channel so we're not talking about the high seas off of yokohama japan here we're talking about local waters we're also talking about workers who live in california who are protecting the california coast from oil spills who leave and return to california without stopping in any foreign ports or even any ports outside of the state of cali vessels on the high seas would that be legal when it be within finally the you know with that conflict with uniform maritime it would and then we would be arguing federal preemption here as opposed to the intent of the california legislature the district court never reached that issue that's correct although he did i think it's a at some point if these were to apply there might be difficult issues exactly and that's what many of the courts including the california supreme court back hundred said this could be a problem preempted by our conflicting with federal law we don't have to address that but one other area that the appellant is trying to change the law and that goes to something that you just said which is a california vessel this is not a california vessel this is a u s flagged vessel what the appellant wants the court to find is that by selecting a california halley court that you know the city at below the name of the ship on the stern that that somehow is a choice of last election that somehow by choosing oakland as opposed to los vegas or some other hailing record difficulty moving in and out of las vegas with the ship but you see many recreational boats that put lake have a sou or lake laws vegas on their transoms as the hailing port that doesn't mean they've chosen that state's law to apply this is a u s coast guard regulated vessel it is a u s flag vessel and as a result u s federal law including coast guard regulations apply to it simply because they put the word oakland underneath the name of the ship doesn't mean that a p l has chosen california law to apply to all of the every court that has addressed the issue of whether fee applies extraterritorial your dot including the ninth circuit in a decision in late march of this year have found there is no legislative intent to apply feet outside of california no less there's any further questions thank you your honors thank you very much the case of