case the issue that's on appeal are the multiple issues of fact that exist regarding the nature and extent of e t s in nature's operational and navigational control of the vessel th case arises out of a time charter agreement that apparently existed between us in age and no love boat arrivals now i say apparently existed because here we are after two years of litigation in the district court we still do not have a copy of the written agreement that supposedly exists setting forth the terms and conditions of the time charter agreement what we have is a time charter agreement that existed between the us in age and what they refer to themselves as that delineated entity but we really do not have and it's not contained in the record that any actual written time charter agreement but what we do know is that there are two aspects of whatever gre existed that are important for this court's consideration what we know is that yes an age agreed contracted with no love boat ronald's to take its employees from venice marina out to a job site in bri clearly determine the routes clearly operated the vessel it is description at his discretion presumably determine the speed so on and so forth and the yes in age employees were along for the proverbial ride they were passengers in the boat during the transit but captain trust was not one of those employees definitely not he is the owner and operator of no love boat runnels the owner of the vessel the saint on site things significantly change these all as best as we can tell all of the e s n h employees including mr pion and including mr scruggs relocated at the front of the vessel by doing their work their work of course was the repositioning removal in placement various types of oil containment boom in order for the work crew to do their work required the movement of the vessel both to position and deploy the boom and to reposition and remove the containment the movement of the vessel was done mechanically by captain trott back in the wheel house but the control over his activities was done exclusively by orders given by exclusively mr scruggs the e s n a supervisor that is essential in the nature of the work that they were doing captain trott being located quite literally thirty feet away from the work  couldn't move the boat couldn't put it in reverse couldn't operate the wheel couldn't operate the throttle without mr scruggs he was up there watching the employees do it giving him the instructions of what to do  operational and navigational control of that vessel on site was a buy in through mr scruggs and that's important because if we do look to the only contract that exist which was a time charter agreement that existed between us an age and what they refer to themselves as an affiliated entity delta boat arrivals what does state in that contract is on site all of the angel what do you do what do you do with captain troughs statement that quote at all times i captioned operated and maintained show control over the same as the individual investor captain located in the wheel house as a matter of common sense step or c has the operational control of the vessel but what he does how he does it where the boat is moved where the boat is positioned where it's turned the force and speed that the scruggs to captain truck it becomes critically important here beyond the issue of control when we look to e a s in ages duties and obligations as a time to order dealing with sea conditions it was reported by both mr pion and mr ferman that the sea conditions were rough that the wave activity was was hot and that the rough sea conditions and that the high wave activity that they face while they were quite literally on their hands and knees that the vessel bhalla tempting to retrieve this containment is what ultimately caused the injury that we're here for today mr pion is right bicep was quite literally torn from his shoulder as he attempted to heave the containment boom but during the wave action is what caused him to become injured it is that event it is those conditions that yesterday took place the vessel and the crew which was the cause of the casualty that we're here for today and if we look at the survey of case law within the circuit that deals with a time trying to reach duties and obligations placing a vessel in heavy sea conditions in dangerous sea conditions as long been recognized as one of the duties that a time charter can breach and can be found negligent and it's dual capacity role as both an individual's employer and as the charter time charter of a vessel as in this case now to the extent that captain trott than even mr scruggs may disagree regarding what the sea conditions are again that is another material issue the fact that i've provided not one but two witnesses for testimony that on didn't didn't address the wave action didn't address the sea conditions that were cause of this casualty and i think that when the court looks at the record when the court looks at the cases within the circuit that of the dressed a time charter is duties and obligations when facing heavy sea conditions such as we're reporting here that does create at a minimum a question of fact as to whether that vessel should have remained on site out  sound in the open city facing those conditions or whether the job should have been stopped in that vessel taken back to port and had it done so we wouldn't be here today i have five minutes left i think of addressed every question i mean every issue of the panel has any other questions  that afternoon your honour's may please support matthew mohler on behalf of environmental services and just a matter of housekeeping your honor the argument that there was a breach of yes an h is a duty as a time charter i believe was raised for the st time in the reply brief in the original brief mr payen no argued that yes an h breached scindia duties i think it's clear that this indeed duties do not apply in this case yes an h did not own the vessel no look at all times control of the vessel and mr pay on a even a farm's is much multiple times in his pleadings specifically in his nd amended complaint and his provided the basics in terms of the days of the job and the material and services to be provided specifically the equipment and personnel needed the work authorization form for the day in question demonstrates that d d a through no dollars further explains that the time traders traditional responsibilities include the designation of cargo and the terminations of when and where the vessel will travel specifically the charter can be held liable for sending the vessel into treacherous weather selecting a dangerous combination of cargo or the knish eating loading and unloading operations in dangerous circumstances hermie also emphasizes that the language that expands the charter of responsibility must be clear and express to prove that the charter took on greater responsibility than its traditional spheres of control the work authorization form that mr pay on all relies on says e s n h personnel on site and i think that's important to provide some instructions but that wind which does nothing to impose on e s n h in greater duty than it would have under the traditional spheres of control of the charter we know from pay on his own affidavit control performance of the details of the work which may be supplemented may be supplemented by instructions from the companies represent any instructions that scruggs gave trellis were merely supplemental to the primary work of d d a providing vessel services through no now in this case we do have a dual capacity situation we have yes n h acting as the employer and as the time charter and th circuit precedent is just as clear on the duties of the time charter in this in this dual capacity situation the time charter retains its retains its toward immunity for actions taken in its capacity as a lawyer and while not completely factually analogous to the l case in this it is a great example of this court drawing a clear distinction between acts of owner negligence and or time trying to negligence and acts of employer negligence when an entity ac capacity and living in the court found that the allegations against the owner employer for failing to eliminate and or create a clear path for the plaintiff to work were acts of employer negligence and i think it's important to talk about these the allegations in this case because it's consistent with mr pay on his own testimony at page two hundred and sixty five dollars that he's unsure about what caused this injury and when you look at the allegations you've got failing to properly operate a vessel owner negligence failing to to properly train or supervise employer negligence failing to warn play on zero of the vessel of its movement owner negligence failing to maintain a proper lookout owner or employer negligence failing to maintain the vessel and its opponents owner negligence failing to do what they should have done to prevent the incident employer negligence as to instructions owner negligence of top or a failing to provide a  and or government or quasi government agencies employer negligence failing to provide pay a no with a safe place to work employer negligence failing to provide pay on it with reasonable working conditions employer negligence failing to do what they should have done i guess i could be owner for employer negligence the point is there is not one allegation of a breach of a time of duty that would give rise to negligence your honor's the purpose of a long shore harbor worker's compensation act was to provide a no fault scheme to compensate longshoreman for accidental on the job injuries that's exactly what happened in this effect in this case there was piecemeal discovery conducted by yes an h even after it's not won but nd somebody judgment was filed they still produced over five hundred dollars ages of additional response at documents as in any case the what was argued at the district court and it was a brief before this court in eat nuances of yes than ages role as a time charter her were distilled during the during the progress of this case yes  there's any fall to be cast as to the what was alleged in any preliminary pleadings both the facts are with they op this case presents a deviation of any traditional notions of a time  relationship once the vassal was on site the contract itself as an the side it to the court by both me and council provides that on site e s an age was to assume pion mr firman by kept in troth end but yes an it but it's those factual disputes that must not be decided at summary judgment but if sense factual disputes that can only be decided at trot when the trier fact in see the witnesses can evaluate to credibility evaluate their demeanor tone of voice inflection that's what is called for in this case that needs to be decided by the district court by the trier of fact in for that reason i submit that