them just like my client actually before i get into my argument but i'd like to say number two threads that run through this entire case number one is plaintiff's credibility and he doesn't tell them about his products history of herniated disk he does not tell them that in fact after this accident he went back to work and as we'll discuss in a later for year and a half prior to the trial in fact been working as the chief engineer which was his occupation at the time he was hired and the time he fell at the time of the accident there was no other crewmember called there were two decades on the boat who heard him when he fell and went to his assistance but the facts as we know them come from mr luge and his admissions are very interesting and any event he's a senior officer i asked team well as senior officer if you saw a hazard or potential hazard on the vessel was it in fact your responsibility to remedy or rectify the condition or report it to the port engineer who's one thousand eight hundred miles away in los angeles at the harbor there he said yes that's my job obviously the top guy i'm  they recognize that the way they where the ropes are stored is actually on the nd act and this row could be four or five hundred feet long it's about three inches two and a half inches in diameter it's a towing line and you just not going to main deck where the crew may have to work with the hostages and then you know yeah ok so they do stored up above and they're not used in every job but on long distance telling they can be used  and part of the end where it loops around was in way the entrance to the nd deck you have stanchions and the safety chain when you climb up the ladder you get on to the safety chain and then step up on to the death lewis testified that when i saw that wrote my eyes laid eyes on it i knew it was a hazard as he said a big hazard it was a tripping hazard he gets up on the deck secures the chain behind him and then he says he spent five to ten minutes we don't know exactly what it was but he said five to ten minutes on the nd deck looking around checking to make sure they had enough room when need be done he's in decides to return to go back down so he walked back over to where he knew the rope was where it was laying and way of the entrance he was the safety chain that he looks over and at the corner of the deck maybe seven hundred and sixty seven feet away there was an electrical junction box secured the deck but it been knocked over he looked at that he said he said to himself i've got to get my tools and fix it he keeps us to an engine room he continues he turns around  he tripped on the rope that he was standing on or his foot was right next to it and fall to the deck below and here we are today now there are several principles of law that i wanted to talk about the st one is the most obvious and maritime cases and that is that the seaman has a duty to exercise reasonable care for his own safety in this case mr lewis saw the rope not only was it open and obvious but he recognized that it was in fact a big hazard he testified that when the district court found he was negligent and so is your quibble just with the percentage allocation yes sir and i have three arguments where you have two or three people viewing in a vent and you get two or three different versions some wildly different some similar except where this is the facts are really not in dispute now let me talk for a nd about the judge said well  the primary duty rule has no application in fact it does i will not be have never claimed that that's a bar to recover but in this case showing bomb tells us that  look i'm going to just look at my notes from that the seaman must have consciously assumed a duty as a term of his employment and he had knowledge that he said yeah i was the guy on the boat who was charged with safety for the vassal number t the condition complained of could have been eliminated by the seaman in the proper exercise of his employment duties and three the seaman no knowingly violates that duty he testified that there were no rush that day he had to able deck hands just feet away from him down in the nd deck he never called them he never asked to stop work let me ask you a question because i i didn't go into this in great detail but it following you judge becoming if i get found it found the plaintiff had engaged in negligence and that's the primary duty rule would lead you to as well so i guess i'm not i'm not sure what the primary duty role matters and it seems to go back to my earlier question just a matter of how much fault should be apportioned to the plaintiff if it's not an absolute bar when this world of apportioning fall right but if the apportionment is so outrageous for lack of a better get out i get that argument that's not about the primary duty making sure they're not ropes in the way of the entrance which was open and obvious and he tripped over to anyway he went back knowing it was there and tripped over it so he's exposed himself to the danger twice what is my client supposed to do when the eight hundred miles away and the guy who's responsible for moving that rope decides not to move it he doesn't ask for assistance he didn't ask to stop work he does the zero and so what that what you do in that situation is imposing upon my client's strict place to work outside of this case as these cases my brief the employer must have notice an opportunity to correct an unsafe condition before liability attaches so my port captain is over in los angeles he doesn't get notified by anything until after the accident happens and then he should by that time has already run out and hired an attorney what is my client supposed to do are we strictly liable if something goes wrong when the guy whose responsibility it was to take care of that problem blows it off and does nothing and ends up getting hurt i mean it makes no sense judge makes no sense in fact is placing a duty on my client on any vessel owner that is unreasonable no no boat owner who is has no control of the vessel when it's underway or in this case tied up in mobile alabama can do anything to prevent such an accident so you would apply the same you don't need to be in this line of business then i mean you know if that's if this if that's the situation that's how it works and your answer is well he's you know in los angeles how can he be responsible maybe he needs another line of work i mean well they they're not sane they don't have responsibility they hired a guy lewis had thirty years doesn't get we get a recovery i think it depends on the facts i mean if the if the kid if the kid if the cook had put poured the coffee a drop the coffee there and she knew it and did nothing about it and continued to walk around the gallery for the next hour and a facade when lewis was hired he concealed from the court skinny from the his employer and the fact that he had a herniated disc in his neck he then deliberately back to work expose himself as they say to the perils of the sea ends up falling complaints about an injury to the same part of his body when he knew that working with the chief engineer on a vessel is a hadassah hazardous occupation he can't claim that he didn't know he had a herniated disk because it records well established that he did know he had a herniated disk but he hid it and as a result he claims he reinjured it but there's no evidence that the his neck was any worse after this accident than it was before  his accident did he tell the truth to anybody except when he was on the stand explaining at the accident well i don't think he told the whole truth and he's on the stand he tried to make up i mean that six steps forward explaining  if there's any credibility given to and then that's sadly mistaken i would like to move to the last income question if you leslie have another questions guiding principle here is that shows reasonable certainty that a residual disability related to this accident occurs which prevents him from earning the same extent the same as he was earning to the extent proud of his accident no doctor testified he has any disability up his any expectation of the income stream the fact that two or three months before the act before the he retired retired he was talking to his boss that kim susan ank he was told he told him i'm thinking about quitting i want to retire career is going well so you have the retirement you have the fact that in the biggest test of all he went back to work for a year and a half working as a chief engineer with no disability  the portion is highly discretionary and that the findings of the trial court all of her findings of fact of the district court judge have to be looked at and considered and that the burden of proof in showing that they clearly erroneous is a very great burden and it's heavier in this case because it turns on the credibility of several witnesses including here witnesses one of the least credible i've ever heard of that he may be your honor but the district court found that he was credible in his testimony before her he did to his credit own up to the concealment and to the statements that he made to his doctors and so forth and i don't condone that and in any respect nevertheless in front of the district court she found that his testimony to him was credible because he did admit to all of these things to her the primary duty rule i don't believe is a political in this instance the judge assessed twenty percent comparative fault to mr lewisham in this case she found that when he went up onto the top deck to go and assess where to place the new rope that was on the dock that he discovered that there were was rope already there and that rope was covered with numerous heavy boards that were too heavy for him to lift when he was inspecting this and by the way that those items were placed there before he ever worked on the vass so they were long standing and this was not an instance of some sort of transitory and seaworthiness so the district court found number one that the vessel was on scene worthy for the placement of these ropes and boards that block the walkway for all of the crew members not just mr lewis but it was on see were the as a matter of law she also found that was negligent in that they did not provide a safe place to work for mr lewis because of that and when mr lewis went up to this top deck to assess where to put the rope but that was located on the the dock he noticed this and in doing so he saw an electrical junction box that was on the side of these ropes and boards that had wires sticking out of it and he did not know as the engineer on the vessel whether those wires were live wires they could they could pose a threat to himself to the other crew members and to the best set of seitan not diminish the primary duty  no it does not because he actually used his stop work authority as the district court found and he was fulfilling his primary duty in doing that as the determiner stop work on his in the words he didn't call on the of the fellow the sound stares he stopped to handle it himself and so we're talking about he did your honor and the district court found that it would have been dangerous in fact for him to call other crew members up there without determining whether or not this electrical junction box w live as they say and meaning it had electricity because it could have posed an electrocution threat so what he did was assess what tools did he need to go and check the electrical junction box and he was proceeding to go down the ladder when he guy was really bless he was he actually fractured his clavicle in the fall was rendered unconscious and he further injured his neck so i wanted to talk a little bit when we get on bad news brought up t concealment is another issue the macor been issue was already decided by the district court but i understand that pursuant to johnson versus an act they're asking this court to look at that concealment to somehow perhaps add additional comparative fault and i think judge cost was asking what cases do you have to support going beyond the discretionary function of the district court in assessing apportionment and i think what they're trying to do is look at johnson versus the knack to say that well we need to add some additional complera to fall and i don't believe the johnson versus an act or gav again are savile are any of those cases support doing that those cases all looked at whether or not i'm a corp and concealment can then be used to say that this person placed themself in a position to become injured but i do think in your honor and judge don't you that was your opinion i believe that the differences in johnson versus enact the trial court found one hundred percent fault on the employer whereas the findings of fact showed that the employee also had some some fault it was remanded to consider whether or not there should be comparative fault on the employee for that purpose but in this case i think it's discretionary for two and i looked at the record here because anything of that nature he did have the evidence he was or ridiculous at the after this after this incident there was evidence so the only evidence he took tylenol right now ma'am he was taking an initially he was taking a lot of very serious medication when he decided that he needed to go back to work because of the financial pressures he was facing he knew that he could not pass a coast guard physical if he were taking the prescribed pain medication so he took himself off of that and took advil instead ok so he had been prescribed that he had had a great deal of medical treatment but he knew from his experience that the coast guard will not permit certain medications for a seaman who is out working on a ves so he took himself off of that for that very reason so he controlled pain with that bill well to the extent that he could there was also testimony in the record that when he was not at work he drank alcohol and took  other over the counter medication that he took so much advil was making him sick because it's bad for you i always supposed to believe that when he doesn't tell any of the doctors his trail of the medical history and they you know the doctors are both actually compared the two thousand and eleven and the two thousand and fifteen m r i films themselves and that was not disputed really by anyone they both compared them and said that the findings on the nd film which was taken shortly after this accident were worse and they could point out the actual parts where they worship the pope and that he didn't have ridiculous that they before that accident which is the primary problem that he had and why the surgery was recommended issues under the macor been defense it was initially approved and set up and he flew to new orleans to have the surgery and they did not pay for it and it had to be cancelled at the last minute so he was prepared anyone back to work offshore for somebody else yes ma'am he did he did go back to work offshore we're not disputing that but in this case though the appellant would have this court impose on my client basically a duty to go forth in the future and not be honest with future employers which is what was their main complaint in here that they love me or i mean let's think about i mean just for the sake of argument because it's a client really is i realize the court discounted some of his claim damages but my goodness suppose he had he had actually stayed off work following this accident and insisted on having surgery and then been off work for an entire year the company would have been on the hook for that would it not well he did stay off work for a period of time i know about as six weeks of fun not missing out on and off and then he was not working offshore initially for a good deal of that time because of this injury in the severe pain and so on the company would have been liable for it right yes they still worth a libel and the district court found them liable to pay for it that well they did after that yet sectors several years later after litigation but what i'm saying is he didn't think he was that sick so he went back to work but the company would have been responsible for the entire period that he was off work responsible and what that and terms of maintenance in pure yes what they paid they ended up paying the maintenance after the fact they had brought that up to date but it was the surgery that was not paid for it was as i said it was initially approved and he flew in and then it was not approved not because of their climbing concealment they didn't approve it because they were claiming they had to go through an audit process so they did authorize that and then subsequently refused to pay for it and at that point yes he did go back working offshore but again a lot of these things were you know as distasteful as they may seem in some respects it doesn't it doesn't take away the fact the district court took away the mug corp and gave them a corporate defense and took away the maintenance and cure based upon that so whatever punishment the district court felt mr lewis deserved for this was already  taking out the maintenance and cure and by the assessment of the twenty percent comparative fall for the appellant to argue that he should be assessed greater fault i just don't see anything persuasive for them to base that upon because of the discretionary function of the trial court judge she was the only person that had the unique ability to assess the credibility of everyone and from the looks of the opinion and the findings of fact and conclusions fault they had some other issues in their brief that mr plan didn't quite get to about the income saying that my client was retired that was a comment that he made to his last employer at camp susan and that was something that was testified to a trial but it was inside of a document that really was not well how can there isn't any dispute about that because he won a nice wanted to set up a sea food truck in georgia well but he was actually selling buying and selling shrimp on the side of the road out of his trunk and then he found out right after that the state of georgia does not allow you to do that until it doesn't i mean it doesn't matter he clearly retired well he he didn't retire he told them that he was no longer able to he told them that he was retiring as was the testimony from the kim susan gentleman mr lewis did not say he retired the gentleman from kim susan was basically that speak louder the words don't they argue he actions speak louder than words he was fifty six when that's when he decided to not be on the sea anymore yes your honor and he didn't decide that the vessel with the kim susan was in a shipyard and mr lewis his testimony which the district court found persuasive was that he was not able to continue doing that work because once they got into the shipyard he didn't have an oiler assistant to do all of the moving buckets and heavy things and he knew he wouldn't be able to do the work and he was starting to have more and more symptoms was having left arm numbness and pain he was having difficulty carrying things was having difficulty going up ladders and he thought it was in his personal belief not can we believe any of that well the district court believed it and there was nothing that was offered to oppose that testimony in any way to controver the only thing that was relied upon by the kim susan on that was a form that was filled out by the company a notice of separation in the company signed it but the portion where the employee is supposed to sign it was blank mr lewis never signed that someone else you know with the company signed it and said that that was his reason for leaving was retirement well that's nothing not credible about that right well i mean that he didn't sign it now that was the point so  the district court found that he had not fully quote retired but that he stopped working because his symptoms because of not being treated and not having surgery continue to be exacerbated and get worse and worse and worse and that's worn out in the the medical testimony if you look through dr bowcock dreyer and dr bartholomew's testimony they said this is not something that's going to just spontaneously improve on its own if anything it's something that is going to cause a decline in the person and that's what was happening in mr lewis realize it at that point said he did not feel that it was safe for himself or the other crew members for him to continue working as a chief engineer on offshore vessels so at that point he did remove himself from that type of employment he did not he did not relent and say that i i in fact retired but he said i removed myself from that type of them plummet because i was in a situation where i didn't happen assisted anymore and my symptoms were getting worse and worse from trying to do this work myself and going up the ladder which he has to do all the time as a chief engineer climbing up a ladder when your arm is gone as is a hazardous thing to do so he elected to take himself out of that employment sector he does still work in the district court discounted for his future wages for the his ability to do other employment so he has not he's retired not retired but removed himself from doing offshore work but he is still working he's always worked before and after this incident and he's got an excellent work history actually and very good wage earning by the the records in this case it can show time i got finished with his deposition after he was shown live which is probably true medical history he said i've changed my mind he doesn't need me if he's getting by with advil he doesn't need neck surgery it wasn't because nobody paid for it's a good thing we didn't pay for it two or three years before the trial because once but stalin you knew the truth he said no way i'm not going to operate on this guy doc to all than who counseled mention said i haven't seen this guy testify to trial i haven't seen this guy for three years i don't know what his prognosis is and then he was he was asked well if somebody with these kind of issues has an injury like that is he go worse you're probably so but he doesn't know anything about he took three u s coast guard physicals designed to test for capabilities at an individual to work as a chief engineer one for blackwater diving two for kim susan this is in the year and a half before trial he passed all three he was found to have the strength and a bit agility to do the job  he said yes i said well dr can you tell if the changes are shown on the m r i are consistent with continued degeneration because degeneration doesn't stop when she went we all go through we all have it it's not going to get better it's going to get worse he said no i can't tell it may have been made a little worse the findings on the m r i little worse by the accident but it could be the progressive disease disease that he had his neck in a trial a kresty because it didn't make any sense to me why an engineer with thirty years experience knowing that that rope is there knowing that it is a safety hazard would walk back over to it and not have done anything to get rid of it to fix the problem and at that point which boards out i'm not going to sit there and wait for somebody to come around while we can go down and say we got a problem  he went down the ladder because he was impatient he never had anything never called stop work he goes to the latter he's going down he looks of the junction box he turns around to go there's no hesitation and the next thing you know he's football is off the top deck onto a big data locker balances off of that onto the deck below he's lucky he didn't break his neck there's no evidence to support a fine of eighty percent benefits etc doesn't fly there is no evidence by any doctors that not even his folk rehab expert was going to get on board with the idea that he has a disability he said in the district court even