court a man named david george and i represent gilbert sanchez the supreme court has held that the purpose of the jones act semen test is to separate semen from land based workers who happened to be working on a vessel at a given time people are not seamen when their presence on a vessel is transitory or sporadic sanchez were spent over ninety percent of the time he worked for fabricators working on vessels in navigation he was injured while in the gulf of mexico on a vessel in navigation this court se that was met and next the person must have a connection to a vessel in navigation that is substantial in terms of both duration and nature and mr sanchez had that during his time test and that it used the nec when and in endeavor marine is it somehow inconsistent with the supreme court test because in the in the just  actually go to see and because the the vessel in sabine pass was jacked up next to the dock during the time he was working there he did semen status and then the court said later in the past i you know that this is the holding in chandra's and we adhere to it here so the supreme court's message and the pa i was not a new test with a new factor of a literalistic going to see instead what they were stooping as as this court said an endeavor marine that is when readin doing different from the work the course talking about in the pa what i think is looking at the question is is this person you want the member of the crew now to be a member of the crew you don't have to actually be employed by the vessel or you can work for  enterprise then the smart fabricators has met mr sanchez working there for forty something days that he's there every day it's his full time job they're all his work is there and then he goes to see him in a literalistic sense with the the other vessel where he's actually you know it's sailing and then it's out in the gulf of mexico so we consider all those together qualify as a vessel crewman so he is there for you know forty five days day in day out all of his work day is spent there that is allegiance to a vessel very different than the allegiance one would see for a one to one time thing and then it's also important thing to look at the supreme court's coast pat i case that that's good do trigger construction case in there  go home at the euro believe in the concurrence and in this case at the panel that will made the point that mr sanchez could take two steps off of the vessel and be on lame and therefore he was not you know exposed to a certain perils that other people with the well that's the same thing in that we would see in the end in the dew trip case where the man who's working in the middle of boston on a dread ship comes and goes in fact almost all direct workers on reverse go home or go on land at the end of the day very few of them sleep on  was put in drag it one point and the question the question was and the time the vessel is actually dragged out not even in the water be considered when determining whether the person is a seaman and the supreme court said yes absolutely that case must be considered fact reversed but district courts jury instruction to not consider it because it's important to remember that it is tha basically an engineer who supervised engineering this brings up endeavor marrying in a way and he occasionally went on a voyage with the vessel and in fact it was on the particular voyage he had  and that is to say the vessels in navigation the vessels her sewing their mission and you can line up all of these cases the zone e stewart  wrists in terms of whether the semen the the people were pursuing their profession in connection with vessels  the question you're exactly right the question is were they you're working on a vessel in navigation now a jacket rig is a vessel there is no question of supreme court specially in detroit goes into this  extremely broad category is and it's a water craft that can be used as a means of transport is a vessel in addition the vessel was a navigation the supreme court has made clear and chanters as well as in when you read that the supreme court says it could have been taken he overall work well yes if we look at the well i think the key point trying to make is that the vessel when there was never a time when either of these rigs were not considered vessels in navigation under the supreme court test because regardless of whether their doctor not dark they're in navigation now the question much like mr chandra's who was injured on one avoids mr sanchez was also mr sanchez was not injured during on the ws d during his time in sabine pass instead he was injured in the middle of the gulf of mexico where he had been sailing there and then he was doing work and we talked about the getting the vessel ready this is a special purpose vessel that it's going to drill for oil and gas and he was doing the welding and the fitting to prepare the vessel so that it could do its function and there's no indication that he was he was injured on the th and then the work was finished on the th and the vessel begin drilling on the th there's nothing in the record to indicate that he wasn't going to be person on how the ships from one they're running but the fact that the accountant may go along board to view the document song the ship and occasionally ride with the ship maybe to one port so in order to see distinguish between land based people who have a sporadic time vessels and navigation and those who work there basically full time mr sanchez spent two days with smart fabricators less than three percent of his time there ever own sure he works soley virtually soley on vessels in navigation now those vessels you know may have been docked at times but they but the supreme court also make clear that navigation so we had your yes i have to sort of very thinly sliced questions one is if we do conclude that our neko in decision wrongly applied chandra's does that necessarily mean that endeavor moraine was wrongly decided as well that's one question and the other question is appellee enemy key extensively rely on scholarship that is critical of our alleged over application of chandra's in naik when i think as i read it they rearrange a focus more towards going to see because maritime law scholars are actually all this time of his time with with smart dad he's been ninety one percent of it i believe working for the enterprise vessels two vessels is a special purpose vessel getting ready to go to sea and you know it's not doesn't take passenger drills for oil and gas and he was doing the work in getting the vessel ready refitting it so it would be ready to drill so that is the ship's work it was as much as anything just as a you know a carpenter on a ship and when the old would have been spent sailing vessels plugging a leak would be doing the ship's work now as to whether he  still exposure to wrists and those risk include i mean this was not even a brown one of this it's a being passed which is where the the sabine river in the gulf of mexico meet so it's basically at the mouth of the  honor well it does matter because as you started your argument there is a de congress created his thinkin between coverage for longshoreman and coverage for same and the supreme court the whole point wieland there and shondra as well as the that the supreme court have been overruled several times by congress when it when it was blurring those distinctions and they were trying to redraw the dis but distinction in a way that made sense while also acknowledging that in a few instances someone who does ship repairs is exposed to the it is but those they would have had no reason to bring up those cases if the law preexisting wieland or had not done contrary to for thirty three years or more  subsequently we had not been a vessel repair supervisor who worked in a shipyard on canal seventy percent of his work as a special repair supervisor consisted of what we know from will enter a purpose a substantial connection both in duration which is the quantity of work and connection which is the quality of the work is to separate those chandler's and we know from chandler's the supreme court stated you don't just look at where the person was injured you look at the tally of the circumstances on the best was in question and the ultimate next we have paid in that case supreme court dug deeper into the substantial nature for the court found that a worker who only worked on the vessel that was docked was not engaged in sego activity their duties did not take them to sea they did not travel to basle and they were therefore not in jones accident so why we here today will what has happened is it appears that and i'm reading not to stray from this press it they have decided to latch on the exposure perils of the sea rather than focusing on whether the employees duties take them to sea and they travel the bustle the busses do its work and as a result were a situation like we are today or you haven't a gentleman who spent seventy two percent of his time worked he took two steps off of it he went home yet there was family he brushed his teeth he went to bed the other thirteen days he worked for enterprise it was on  sixty three dollars now i will readily admit that the time of his injury he was welding and the jacket really was on our common self and it was jacked up that was nine days of his work nine days of the nineteen percent that's the problem we have a gentleman who is not a jones axeman but because of the decisions and definitely not in the course constrained as a result of the props and focus on the sea the fun in to be a jones axeman so so how do we fix this the court should follow supreme court precedent and the court should refining its semen status test in line with that and ensure quire to satisfy the substantial nature acquirement that the employee's duties take the missi and they do the work of the vessel on its missions that means people that work dockside on vessels the worker we're be both peripatetic and migratory and my retore sounds to me like actually a voyage of some of some crime but if you look at the facts of endeavor marine that be in c i don't agree with that i think it's anyone working in brown water for example what you asked about earlier regarding the ferry worker it would obviously be a member of the crew and he would be traveling with the vessel while it does its work  would have to look at the totality of circumstances i'm not suggesting there's a bright line number of that you have to be regarding the amount or if you do but i think based on the fact that they were traveling the bessel doing the vessels work while they are working that was on regarding the very member if it in monastery those are generally always crew member so they would not be subjected to this test as compared to the situation we have here which is a land base employee who and they were also injured and i know we not only focus on the injury but they were injured in a lesion which is a classic maritime injury estimator here were getting on the trip on a piece of pipe which is more akin to a launch from its type of injury i mean don't you think it's fair to say the supreme court has been trying to draw a reasonable distinction between the jones act and the longshore act they are they believe there are certain people who do work that might otherwise be covered by the longshore act may in fact bleed over or be siemens work but there's little question the way not plan would have had compensation under role in regard to people who were basically dockside don't you think that's correct in congress and rational tinnitus has shown this is the way they want the course a go every time the court has improperly cleared of these it's clear that these workers were not intended beneficiaries of the jones act because the type they work they are doing is not jones at work the u s any opinion on the or on the test that  states i believe and his test is very much a capsule it's what our testers the one thing i will say that artists somewhat different is that i still think we do have to look at exposures to paralyse i don't think you completely be constrained by the exposure to the perils of the sea as a determining factor seems you would find it just rosenthal and all the other panels that looked at this case found these not in john's axeman were correct and rules a matter  dispute so this is a decision that the court can make other know are no factual issues the court is able to make its decision based on what we have of course today and regarding that i would point out  response to a poet's argument that there is nothing in the record indicated that mr scientist was not going to travel to sixty three dollars after he finished his work likewise there is nothing in the records she was going to travel to my difficulty especially with the supreme court not you know with this is because it's been presented to our current supreme court trying to define something congress didn't my concern is not so much that we modify the test but that perhaps we correct one maybe two circuit decisions that went beyond the supreme court totality tatts in other words i'm a little reluctant to say that a professor suggestion that we have called a quantum of movement test that seems to make the same over correction in the same way that maybe in a quinn we highlighted perils of the sea too far so to turn this into a question to you i was very grateful in your brief it pages eighteen to twenty where you emphasized the circuit sure if it was the same situation as here is mr sanchez or we actually in fact are all that worked on this vessels while their operation and i didn't because of a factual dispute that i will point out the majority of the cases outside this substantial connection nature to the vessel that was not the focus of that case that case was mainly if not almost wholly concerned with whether or not the dread was of us so that's modest cost to do true regarding if the completely could see he was a jones axeman if he worked on the two hundred and sixty three for seventy percent of time and the reason why is all the work he did on to sixty three was all about so it was not an operation it was just about the water and career that's a little more difficult for me to accept but i don't speak for my colleagues that man seems to have gone way forward to see and he is very exposed and i say this with respect to the st panel in this case i don't think just because you're jacked up high on a rig you're not apparels to the sea so looking at the metaphorical language the supreme court seems to have given us gone to see perils of c even allegiance i would have said that is that hypothetical would say this is a jones act seem but when i respect you you know the list in flames i consider i don't i think the reason it's mentioned is because congress focused as focuses on out semen are exposed the perils on the floor and in these remedies but that doesn't mean it's the test not coexistent with c f s said another way exposure perils of the sea is not the end all be all because it's just an inherent part of doing this type of work just because you do this type of work and let's say you're working on a that that is problematic for at least two reasons one is it chandra's the supreme court rejected the so called voyage test the idea that if you're on a voyage that would be meeting it if you're not you don't it's pacifically said that that's not that kind say that it should not count if the vessels jacked up but i think that which is a bit huge problem here because if mr sanchez was to be doing the work of the ship when it was is so under their test even when it's doing the work that it's supposed to be doing it could not count because a bet which i think is is in no way any indication of supreme court or congress would have intended such a a mister sanchez on the vessel getting it ready and then going to stay while it's working and as i said there is no evidence he would not stay because mr jett pointed out there's no evidence he would now we did not need that evidence because specifically but they follow the approach of nec when it and if we dressed in our in our briefs so i think but yes there is some dispute or perhaps just maybe this case or one of these will maybe need i created an entire new test of going to see and overrode chandra's is we believe in correct and instead this court correctly ruled and endeavor that that was it was just a restatement of court if his foreword to change the test we requested we be allowed to provide evidence to see if we can meet that test to sense the rules would be changing on us in the in the middle of the game you have any idea what evidence you would offer if there were a closer look perhaps evidence regarding his plans or how long he was going to be on the vessel if he was there to work on the vessel throughout the entire trip in the uk that the entire time it was drilling at operating and the only thing that kept him from doing so was injury i think that would that would weigh weigh in favor i don't think you know just as people don't flit in and out of status the idea that someone believes what they're meekest that in support of us made the point you know if a person goes on a vessel ready to go on a trip around the world and the ship explodes before it leaves the dock is that you know that as it's pulling out is that person not a seaman and you know that we look at what they're calley where they would they would be doing it so i think that at a minimum you know none of that is in the record because it didn't need to be in the record because as the panel unanimously agreed we absolutely met the test as