to return for not opposing their summary judgment which i thought was probably meritorious fortunately frank knew their attorney and i realized what a mistake we were about to make and cancel the entire transaction prior trip check being semen i know you made that argument about being bound by the a l j but where do you present any argument that aside from the a l j being a binding decision factually settle there isn't any there isn't any any anything the record to sense for the l j never awarded any money no they capitulated it was what they did is they said we're going to pay you and then all of a break but we cancelled the whole thing all of a sudden the youngest and i think terrible and so are and so i don't know why judge hike decided even have never agreed to the terms it was no money passed hands and we finally pulled ourselves from the brink the brink of capitalism i don't i don't i see this is a subsidiary issue in your appeal because you have and then for and then to have them unload their cargo at the offshore rigs in the gulf of mexico and then laid it to read use cargo and return it to the seaport dock in solution although longnecker make choose to assign a particular hitter to look to the to the lead batter as a regular on first mr willie and then he was assigned to the sequel washington where he would have worked had he not been injured on november first two thousand and eleven for some eight months according to analysis yes so what does that ok he's a rigger who's very job is to go work on different vessels well that's what it was but then they stopped doing that and they put him on the same vessel for almost two years and then they own people to do that and when they run out of it they get they get longnecker or some other labor supplier to provide a group of riggers so rigger through semen work and and the nor under they a sleep on the vessel they don't let them out on the deck from the time they leave the dock to the time they got to the to the mare ass explorer in this particular case at that particular point they let them out and that and they and they and they  they all love that was when they finally saw that it was picked up on the pipe a week after the accident so that brings us that brings us to the issue of what happened ten five what's exhibit six you will see a picture that was taken from above of the high casing that was done and the location of the accident which is so what happened is that the lighting was bad enough that no one saw what happened and they didn't realize that what was piped up there the man fell dale they immediately an action report which and they notified joe pugh the operations manager eva later that night or early in the morning that what had happened that they did not attributed to piped up because they didn't see it very competent conscientious and they cleaned it out so nobody ever thought that they may be piped up now you're not supposed to get on the pipe because if it's conversation or anything but that's from the the this to a march with a seaport crane operator now there's a big there's a big deal about whether there was enough light or not enough light but as you can see from  front from the picture there's just not a whole a lot of what's there and that's taking down where you can where you get the benefit so it's not until i said week later that they actually see it then it's not until we took just say some excerpts from the deposition you know the key i guess he's asked how he knew he slipped on pipe dope he says what else can it be i'm just saying that's only thing they had on the pipe did you see any pipe dope on the date of the accident no did you see any pipe dope on your boot i didn't look how do you know you slipped on pipe dope because they had pipe all right here indicating but do you know that you slipped on it so you  not perfectly clean are you and you're in big trouble that's basically where we are in those are those are the factual details we have joe q who say she's not supposed to do would why did the intermediate defendants have any liability to him at all because it's an open on obvious condition it's within the scope of his expertise he was not required to do it if if he didn't want to piped up you can see piped up here this is where the action happens right at this point you can't see the piped up there because the two boxes that you would see elsewhere on the pipe where one supposed to that's when not me and i couldn't see anything but i'm talking about the people who are who are who are regulars yeah the people who actually there when they looked at the pictures they say this piped up all of that all over the place that obviously is what it is what occurred  me again i think i think we've got a little bit detail over the fence that's all we have to do with this point ok yes me thank you then even more of a surprise as you read some of the testimony judge johnson you alluded to where he can't even say what happened or what he slipped in or or that he didn't look at issue he didn't see anything there it's a case that i think  employer i guess and so i've got a couple more minutes because that's an issue that my other pelleas don't actually know touch on the jones act and bars serving question briefly before addressing other liability issues with  thirty percent rule that was outlined early in robeson here in the first circuit and then later in chandra's is well established and it's got to be thirty percent with with some single employer even  the jenkins district court case which is the only case that mr mr roach karner cites even that recognizes that it's got to be a single employer in the history of his of his employment aboard different fleets of vessels to establish himself as a joint axeman judge i carefully went through his entire employment history three on the properties and none exceeded roughly twenty or twenty one percent that seems to be an issue that's more or less conceded by opposing counsel because it's really not briefed at all instead it seems to focus more on the issue of whether this was a new assignment a court talks about in order to have a new assignment there has to be a change in essential duties and a fundamental or fundamental change in status you know mr mr seimone was a rigger the entire time of his employment that throughout  said his essential duties never changed from import import just like mr wilcox who was a welder his duties never change whether he was on a platform or on a rig is his essential duties remain the same just like vessel which is what he was doing then he's got a nano fog beat going against the vessel and nine o five b is very clear the duties owed by the gus a lot are in time hidden detax well here there was no doesn't roll of the vessel it's allegedly some cargo that mr simon she one was personally handling and touching as it came down for hours he was the person in the best position to see if there was any defect in the cargo certainly not the vessel and that's not not our burden at that point we turned over a sound vessel all the witnesses agreed that the second test and again i should point out the  five b all the cases that follow are not cited in opposing counsel briefs so i think it's pretty clear just from his lack of briefing that he must realize that he's not going to be able to meet meet this india test but the second one is the active control of the vessel did we take over active control of the work area again the answer is no mr seimone said he was the he was in charge once the operation began he gave instructions to the crane operator he did not want any instructions from the captain it was his job at that point and he did it and he knew had the experience to do it and then finally the and the third beauty is one where the first vessel owner a time traveler must intervene if it knows both that there's a known reason one hazard and also that they couldn't rely on plaintiff or his coworkers to remedy that hazard and here there's no evidence that she called was aware of this hazard the plaintiff wasn't even aware of it he was touching it to assist in moving the pipe from the dock to the vassal in this case judge high properly dismissed mr simmons claims against seaport and all of the liability defendants because there is simply no evidence in the record if you take it as a whole from which a reasonable juror could possibly return a verdict in favor of mr merrett on his claims his lawsuit had been pending for three and a half years at the time that judge hike dismissed it he had filed original complaint in seven and then to complaints discovery was complete his entire lawsuit is premised on the idea of a theory that he slipped on a pipe to it but in both his briefs and in his deposition testimony as judge jones noted he repeatedly testified that he had no idea why he felt he was asked that question repeatedly and that's in the record it twenty six thirteen and twenty six sixty one retarded if you for your coin is in your argument that even if there by what other arguments do you have is that require remaining the claim against your client now no not at all so you're saying if there is if you find there is pipe to is that we're going to find you don't you have other arguments about your client there the seaport riggers were had a fraction of the time with the pipe as compared to mr samantha and he personally handled every joint of pipe for hours on the deck of the vassal before his accident happened bottom of his boot but we don't know that because he didn't he didn't keep his boot but it's his it's his burden of proof and he has admitted on the record that he has no evidence that there was piped out on any of the pipe and that that's what caused him in charge of the operation and he took no directions from anyone he didn't need any directions from anyone and that killen made the decision to walk on the pi and he further admitted that it would have been safer and faster for him to simply walk on the deck of the vessel and under the circumstances my client had absolutely no duty to and you are correct they should be dismissed for carla's of whether there was evidence of pipe dope which we don't think there was or so in some amount of time thank you very much i appreciate that thank you m as follows number one and most importantly the plan of did not oppose try to draw summary judgment at the lower court and so its opposition to our cross appeal in this case should be waived it consented in a footnote in its opposition to the standards involves application of the red compound but it does not know where the pipe is going it does not know who is mr kerner pointed out the people are going to climb on top of it it's inspection process is for use in offshore oil and gas exploration and production it does not inspect pipes to be fit to walk on the record shows that there is absolutely no evidence in this case linking tried rose operations to the of the plaintiff in this opposition to this court relies wholly on unsubstantiated assertions improbable in france is an unsupported speculation which is insufficient to defeat dr rule summary judgment the plaintiff admits he does not know why he fell he never saw he was loading and missed a billion admitted that he has no personal knowledge of what claire seymour slipped on even if this court believes that there was a substance on the end of the pipe there is no evidence in the record to suggest they tried those operations or the reason that the pipe dope was there under the circumstances no reasonable jury issues none of which challenge whether or not the some agreement should be enforced based upon the terms of the it was really whether we had standing in the way to issue their own appeal not factual stuff about what we had a tentative agreement and then we moved forward all that of litigation pending before them so that's the point even if they had alleged it we say that the courts have that jurisdiction to enforce it and the second point is that is because it wouldn't raise we didn't put it in there but the standard for this court review of that is abuse of discretion and that's in re deepwater horizon seventy six f thirty three forty four two thousand and fifteen so that's the first issue going to the merits that are actually in their breath collateral stoppel obviously we don't think that even applies because there was no follow what occurred at the in the a o j level before judge hike in for some agreement was we had thought of motions just based upon some evidence that we had heard because one of the defendants did he's paid a mediation so we learned that there might be a settlement we thought there was a settlement they didn't participate in mediation we thought a motion dismissed for the a l j that was in october two thousand if he was heard in the l j did not issue a final due cation what they will jay said which is in the record that look this is just premature because we think there may be you know response of you the logistics and then we use that evidence to follow our motion to dismiss before judge cheick and judge hyde looked at that and said you know in a short statement based on the clear convincing evidence there is a settlement and at the district court we cited louisiana co under thirty percent rule if you look at the first three or four years of his of his employment he went from place to place to place but in the last two years of my me he stayed on basically two vessels and for a very brief time another he was trying to charge for the lighting and he also as a person who said they had no choice they had to get on there because that was an in your clothes room now he had the ability to say i'm sorry