you know as we're here today on what would ordinarily been a simple issue of statutory construction of whether the injury to the plaintiff mr flo on an offshore drilling rig which was floating but attached to land is covered under the long shore harbor worker's the reason it becomes less than a simple issue of statutory construction is because of what i called the perine grandfather clause and that is that there is a class of workers who may still recover benefits under that statute without proving maritime employment status and that screen but it is the perine that is the perine grandfather clause if in fact the injury which occurred on the big foot oil platform while it was under construction and attached to land is an injury on the waters we believe that the precedent in this it does that later this court clarified in what we call the what i call the work platform case of starting with versus belgium that permits is not the test permits might be enough but if it's not a permanent attachment it is still possible for a floating object attached to the land to be considered an extension of the land and thus we have the cook versus belden manual versus  but the decisional point of the case harken back to the code vs drive out company which was probably the seminal case on when an object attached to land is an extension of the land rather than a vessel and what we have is beginning with that case a decision that if it is an extension of the devotee versus say it actually demonstrates the two opposite ends of the spectrum with travelers being an injury on a floating object that is attached to land is considered to be an injury that occurs on land whereas in the avondale the williams case the vessel was safe it was floating and not attached to let me understand what you're saying that the that there was anything floating sabine river from ship it wasn't it wasn't to the particular structure concrete concrete pilings from the structure all the way to the bed of the river connected for eighteen years so there were floating barges so the barges themselves were floating in the barges themselves functioned as the actual work platform with that worker was injured those floating barges themselves were tied to into into each other and some of  can't say that for certain but we know from pete pete of and how do you pronounce a case that two cables is not sufficient to make something an extension of wind we know from shape a big concrete pilings and just you can confirm and tell me if i'm wrong versus belden is very instructive and in that case this court said that permanence the degree of permanence is not the task it is a factor but is not the test of the actual test is the function of the object on which the injury occurs it doesn't having maritime function what's good about that language is it ties together the history of different changes in opinions from cope versus the dr dock all the way to the present cost though it was originally interpreted and many times is interpreted to refer to the permanence of the attachment as being the key decided that the objects were not vessels because they were attached to the land in other words it wasn't the question of the determination of whether it was a vessel it did not control the decision on attachment to land it was the attachment to the land that comes st and whether as an attachment to the land isn't it isn't it an extension of land or does it function as an object in maritime commerce but if all we care about is the attac container barge rates to the same attachment to lay in question as you say comes st and then the shipping container barges all of a sudden while it's being loaded and unloaded safe being unloaded unloaded for three years just sitting in the corpus christi bay that somehow becomes an extension of l sense and the reason it doesn't seem to make logical sense is because we know what the purpose of the structure that's attached to when we know that its purpose is to function as a vessel to carry a where it was a floating pier part of the pier was underwater but the part of the pier that the guy would injured on was floating and so that the floating part of the pier had been attached to the  to the underwater part and it had been permanently attached for eighteen years and it was no intention to ever move it and so the court said it's a permanent home was in the water that i find it interesting going back to run through the history of determining the difference between an attachment to lay and and a vessel tied to the shore the courts have struggled over what the actual reasoning is for making that distinction some courts have discussed this concept of the water being removed from navigation some have discussed permanence the degree of permanence of the tapping then it doesn't depend on the you gave in maritime commerce well i think having some uniformity across the spectrum of abducting and maritime causes of action is of great benefit in primarily because even the long shore harbor workers cases that have found injury on navigable waters to be covered they have harken back to the very beginning of the coke vs and actually the blackheath and some of the other cases that deal with fixed structures or structures attached to land and whether they are the vessels or extensions of the land and here it is the determination in those cases that the object is an extension of the land that drives the decision for the rest of that case and so i believe the starting point even finished the construction that's that's correct and we don't dispute that but it does make you wonder whether the subject of inquiry into human intentions  productive inquiry because for example in the traveller's versus suppose there had been an injury on board one of those barges in the early days of of its use when they were there were only one or two barges attacks and they had only been there for a month and i thought your entire push into my question about the container ship was about human intention and purpose and so the courts of have have had a hard time dealing with that and they states supreme court says that's not the test in the us arraignment operating company versus johnson and i'm quoting here piers like bridges are not transformed from land structures into floating structures by the mere fact that missiles may pass beneath them so it's not actually the removal of the waters from the vacation that is the determining factor and if you look in all of these cases the true determining factor is the purpose of the structure is it being used for a purpose that is somewhat foot which we argued was an extension of land while it was a test shore of the construction it was destined to be an attachment to land it was destined to be an artificial island and the only time during which it was not navigable waters the injury occurred on navigable waters within the meaning of the longshore act because mr flores was working on an object floating in navigable waters and temporarily mord to the dock i want to make three points explaining that conclusion the st point is that a floating object does not have to be a vessel under maritime law for an injury on that object to have occurred on navigable waters within the meaning of the longshore act there is no vessel requirement in the relevant statutory text and the lack of a vessel requirement follows from this court's decision in williams said states davis pointed out the williams court observed that vessel status isn't necessary for maritime  intent the final intent for big foot was to be an artificial island in the middle of the ocean and therefore if that's the issue and why doesn't that make it not happen the issue is the status of the object at the time that the employee was doing the work and incurred and suffered the injury at that time was the object floating upon navigable waters and temporarily more to the dock or was it an extension of land and the  doesn't the human intent is it doesn't matter it matters what's going on right at that moment at that moment it's temporally more it's floating and the fact that at some point it might be secure to the dock permanently or at some point it might become an artificial island we don't care about that we just care about the here and now as you know as i understand this court's cases and the supreme court's decision in nasser iemma which established the standard here came a couple of years after she and resolved some of the issues that the courts of appeals were debating at that time the question is whether the structure is permanently attached to land so permanently affixed to the shore permanently affixed to the sea bottom and the way you make that determination is you look at the nature of the connections so is it a bridge war for appear is it driven into the sea bottom is it permanently attached to the land and that answers the hypothetical that mr manning gave about what if there was an injury in the  month that the outfitting pier in shea was was in operation well same answer because of the nature of the attachments the piling clusters throughout the length of the outfitting pier demonstrated permanence and sued have the same result in this court's decision in protg been it recognized that when you have a floating object that's only attached to the dock with cables that that's a temporary connection it's not a permanent connection and so the structure is not an extension of lino you think it's not a matter of the number of cables or the number of pilings it's just cables are not permanent and pilings are i think that the clear it minister standard here is the standard that the supreme court articulate nasiriyah which is is this permanently attached to land and the only examples it gave of that were a bridge a wharf and appear classic permanently attached things driven into the ground by pilings they're permanently meant to be permanent they don't float injuries occurring on those things occur on extension on an extension of land and the further we get away from bridges worsen peares into other types of objects the test becomes more difficult to administer which is why the test that the employer urges in this case would undermine the certainty in the law would make it more difficult for employers and employees to figure out whether those longshore coverage if i could turn to the vessel cases that the employer relies on cook man well cope judge davis as you pointed out those cases deal with whether an object is a vessel under maritime law for purposes of the jones act for purposes of the doctrine of an seaworthiness does the owner of a duty of sea where the news you have to figure out whether the thing is a vessel and the test for doing that looks to the transportation function it's a different inquiry it's different statutory seems different causes of action it's just a different legal question from figuring out whether something is an extension of land such that injuries on it or on or not on navigable waters out the hossa to tional argument how far injury here occurred on navigable waters so it's the heartland of maritime jurisdiction but this court's decision in jacksonville shipyards went much further than that it is addressed the constitutionality of the land the word extension of the longshore act in the and seventy two amendments and held that that was a permissible exercise of congress's power under the admiralty clause and the court noted in jacksonville shipyards that it didn't even need to reach whether the commerce clause could have also one and there's no response there's no response in the reply brief this argument is dropped there's no explanation of how the argument could be squared with this court's decision in jacksonville shipyards or with purina for that matter which payable for someone who's working on navigable waters but only if the death was this ability result from an injury occurring on the navigable waters which is a super weird way of writing a statute is that what the supreme court requires us to understand  in the employer definition no your honor and here's why the employer definition when it gets to the language that describes the side as upon the navigable waters it also includes the other adjoining land areas that were encompassed in the  two amendments and so the argument is that there's a superfluity problem because you have maritime employment you have upon the navigable waters perini tells us that regular work on navigable waters is maritime employment so are the two phrases essentially doing the same thing they're not because when you look at the rest of the definition and the inclusion of those additional land areas somebody working on a pier which is one of the additional land areas under the nine hundred and seventy two dollars amendments is not necessarily engaged in maritime employment as premier recognized as the supreme court's prior and subsequent decisions in this area have recognized additional inquiries are necessary to figure out whether a worker in one of those land areas is the aged in maritime employment so the this court's construction and hoeing horsed the supreme court's construction in perini the plain language of the statute there's no separate fluid when you read the employer definition as a whole like the people who work on argument that what what was perini do is saying when it said of course the person has to be an employer you know there has to be a statutory employer in order for coverage to be met an additional point i want to make about that is that the employer  requirement has additional teeth in a case involving for example a compulsory river pilot which this court addressed in boxers is tried and steamship an individual independent contractor does not have a regular employer to which she can  for coverage under the longshore act and so you know that's an example of where that statutory requirement as additional work i see my time is about to expire or if the court has additional questions i'd welcome the opportunity to address them otherwise we think the petitions for review ought to be do not thank you thank you what's the point at which we look at the structure and the point on the launcher i was always at the time of the injury because that's that's what we're looking at when the when this person was entered what was that structure serving us so i think that's a simple answer that  constitutional question because additional question is really kind of just a red herring because the only way you can accept the cost and lift cost to the question that this was outside maritime jurisdiction is if you accept the argument that this was an extension of land because it was an exemption of land that was in the novel waters if it was in an audible waters but it's clearly a marathon so i think the constitutional argument is i just can't help but think if i'm walking out of here and i'm go came down and knocked him over into navigable waters on appeal he was found covered so if you're if you're injured on the pier under three don't preach imprinting seventy two you're a look a pop if you're if you're not going to tolerate water right and out of luck is probably a briefly to what mr manning said about what is per what is important for the coverage is the purpose of the structure serving and i think that is clearly not relevant to to free coverage because if you look at the wide variety of uses to which things that have been covered have been found covered so i've been put have haven't found covered the bargain we're ganci was used for research clearly not a maritime purpose in perrine and i and walker the barges were being used as construction platforms which is one of the very things  circuit case in the case the structure was a railroad car float and michigan mutual called their own tow or the courts were examining gangplanks and skids so this does none of these things necessarily have maritime purposes in fact almost none of them and i just mentioned do but they were all found to be covered so it is clearly not the purpose of the structure it is whether it is floating on that of the waters i think there was some question about the permanent connection to two land and i want to address two things with regard to that one is the difference between something that is sure side and something that is in the water if you are sure side you are if you are pointing think it's the land because you are not floating anymore judge told him what you were saying is even though these steel barges were floating or it is once they are test the pilings they're not going to sink so they're not floating any more once you're out in them in a body of water whether it's the gulf of mexico or the lake in more dancey there's nothing to to attach to there's nothing to extend from so you can't be an accent of leather but you can still be floating which is why the barge in morganti was was found to be covered ok so what's your view on  it and the reason is because there really is no such thing as a floating pier if you look at shea it says these were barges that were end to end but once you attach them to close to piling cluster yes i don't understand why the cut off line isn't water versus when i understand the law is what it is we have to follow what the supreme court says i understand the language of war from peer and all of that but it just doesn't make a lot of sense to me when you're on the water you're on the water i agree here and if you're if that's the standard either standard but i'm not trying to say that is the moment i don't understand that no idea why we are even having this discussion well not on the water the problem is around what kind of structures eon is a connected i mean to me i grew on the river i knew when i was on land when i was in the water and i don't know why that isn't a distinction but i understand we have to follow the law and i respect that but what i think it was your are big because they originally had was reversed action could only cover you when you were actually on the waters and if there was something that was exist because as in the shade case you do have these floating barges that extend out that once you attach them to pile and saucers are really floating anymore not really because they're not going to go anywhere if if if you get a hole in one of these barges it's not so herb's welding specifically for specifically drew the distinction between a fixed platform and a floating platform yeah i mean it isn't my view of the law it's not important what i have to follow what the law is and so that's what we're trying to address i'm sorry i look case it is a little strange st of all because the judge day was pointed out it is a jones act case and the question was whether the structure involved was a vessel which i think we can all agree is not relevant for corrina coverage in atkins which is also see where this case that even though there was it's clearly not of us all the court had the claimants had already received longer a compensation then the only question was whether they could receive the other remedies that they're going in the absence between what's on land and what's on water and why isn't the rule i'm sorry i don't mean that you reckon well i think it's an important that i think it brings up the important question and that in that is what did congress mean what are the courts me by using the term on the global waters and if you look through the history including we've cited some of the cases in our brief on what that term means and where it came from and it's actually was sort of the issue the court there said this court there said that it wasn't going to affirm the use of the land doctrine as the exclusive basis to affirm the dismissal in that case longshoreman's harbor worker compensation act then my argument doesn't hold water but if they're waiting to say yes but if there is a connection if there is to be uniformity in commerce which the long long storeman have a connection to that even though they may not be engaged directly in maritime commerce there is a connection that is not the case in this situation where there was absolutely no connection maritime contracted under the you know the kirby and oh i think there's our on line of cases if we got into the maritime contract cases where completely we're going to i don't really know if they're relevant directly to this but they seem to be relevant to the constitutional question because of the connection to maritime commerce and if there were no connection to maritime commerce congress wouldn't be able to govern them under every teacher of stitches and there may be other provisions of the constitution but allow congress to regulate those but in this instance in the longshore hardworker compensation act the courts have uniformly interpreted it to mean that congress was attempting to exercise only the you know not powers under the commerce clause or some other provision of the constitution i also want to address the issue of cables versus pilings that's kind of a rectory to the land and so in some ways it had a better more certain connection to the land then barges who were floating into end for seven hundred and fifty feet into the water that were jurisdiction law under executive jet what we're seeing is that the supreme court is coming back to that to protest i was using coke versus the left which is not just you know the permanence of but also the connection to maritime lambaste injuries that were related to the maritime commerce they put in the statute because they understood that to be part of the restrictions on their jurisdiction to have little doubt we could all talk about the case is under submission and we will take a ten minute break