involving a workplace injury i have a few just a few things i'd like to cover with my time here if i may first a brief refresher on the most pertinent facts that are under spewed it is a clarification of the precise pennsylvania rule specifically with respect to the mathis decision and its predecessors and of course the alaska supreme court's recent decision and then finally the conceivable connection by the united states coast guard the flick ability of osha regulations or not to pick ability actually was phrased in terms of a click ability to the operation of the vessel and i think that's an important concept that helps us to bridge this gap between whether these particular regulations should be separated from any injury or workplace incident during the test was operation a more correct rule we would contend that the on the regulations are made to pick a bill to the employer the employer's operation of a vessel there's no proper way to separate it completely and ignore them as the current indecision we in our meeting and i believe absolutely not i think it's clear well ari does a deal with those for example those that discussed putting pressure on the nose and blowing up gently into it if you're a scuba diver regulations are quite that specific although they're very specific they require they require practices manuals designated persons in charge from which all flow institution of s practices in this particular work environment equalization of years is a critical thing and a very easily injury producing thing you know exactly what it is because you spent a lot of time with the case the route that was violated relates to scuba diving but you're supposed to have an operations manual that has the safety and health of  divers including safety procedures and checklists for each diving mode used so one can imagine that it might say that you should not go below such and such a rebel without appropriate manual regulation when it was violated i think again your honor if we're talking in a textual sense the answer is no and that we contend was the error of this record and in under section fifty three but i think your honor you've hit it directly on the head when you said one can conceive how these regulations would have an effect indirectly i think that's a very very very important concept and perhaps dispositive of the appeal  senses because if you examine the case law for example the horton case the claim violation was that the operator of the tug the call this barge away from a dark in the in the violation then the injury and i think that the current and doctrine is much the same especially if you look at the facts of the current case itself you have a navigational light that was too low to the water that ignites fumes off the river in pennsylvania not not even fumes from the deck of the barge on which this poor seller lost his life but but fumes from perhaps spilled oil or petroleum product in the river  days an open flame it seems amazing to think of but the the navigational like the violation of a navigational rule could could not it wasn't for fire prevention it wasn't really even for crew safety directly but during that second conceptual step where in the court says we're simply not going to turn a blind eye to this violation of rules  recovery for workplace injury where you can work justifiably improperly can in the current case the horten case there is that indirect half step conceptually linking the violation everybody who was working on a boat just commercial dive operations if they run their life then wouldn't you still need additional findings that there was the causation in other words that causation i think has been determined on this record by operation of the presumption in the pennsylvania rule and rebut it if the pennsylvania rule applies this court reading this record and fortunately it's a small record least small record can find that there's not a sufficient level of proof to rule out any possibility that these regulations are you saying that we can apply the pennsylvania ru even if the current rule is not sound smart and i'm referring to the proximate cause ation requirement of current incurred and there was a violation of the regulation about faith i think in this particular case i would have to say no because the district court below passed on the questions of fault with respect to the n c were to see with this doctrine and the question of general are com pennsylvania rule and the negligence for say rule do not apply here the argument that was made by the appellant for application of both those doctrines was that free diving is an inherently unsafe activity and that a scuba diving manual as required by the federal regulations governing crime mercial diving which are clearly in applicable on their terms thing had there been in place a commercial diving manual that it would have precluded dives below a certain depth that was the testimony of one expert and additionally the argument was made that if there was a scuba dive manual or surface supplied air or dive manual that maybe that would permeate the safety culture of the company and as a result that would somehow result in free diving not occurring at least below twenty feet in fact what the court found was that a free diving is freediver before the appellee even hired him and he worked there after on another hundred twenty trips making multiple dives to twenty feet and significantly below and that in fact during the course of the company's operations there had been between forty thousand and one hundred thousand such freedom i was made without any incident of injury th that's the only thread to even talk about here it's not all these other things that much is does that mean that them having operations manual per the regulation sort of encompassed indirectly anyone who would you know want to go below that level so we're clear what the regulations talk about is there needs to be an operation and  sets out some guidelines they don't talk about very big in any way shape or form the expert in this case for the plaintiffs testified that had there been a dive operations manual it would have provided that you don't free dive below twenty feet because in his opinion that would be unsafe what the court found based on the testimony of our expert who was the freed i have much more experience in free diving and fact plaintiffs expert indicated he knew nothing really about it except that inherently he thought it was unsafe the testimony that we presented was from the us national free loving activities what goes into it and how it can be learned and the fact that it's safe what the court did was accepted without question what our expert testified to there's nothing inherently unsafe about it it can be practiced and the safe manner and that's based on her findings and what i am suggesting is that if you look at all the pieces that talk about either the application of the pennsylvania rule which i think has nothing to do with our case here or the current in negligence per se rule whether it's under section fifty one or fifty three or the common law which is a very tangled issue as you've seen in the briefing the courts have said you need to take a look at whether or not there the test is not whether there is some connection or a possible connection the test according to the wills case is whether there is a logical reasonable connection between the alleged are in between the violation and the injury that follows and i think that's part of what has caused all the restraining in connection with these cases as it rises or as it pertains to both the penn pennsylvania and so the court clearly adopted the point of view that making a dive like this was not on say tween the activity which was performed and the reasons why you would apply negligence per se leaving them really only with the argument that had there been a dive safety manual for scuba divers or compressed air divers that that somehow would have made the operation more safe and the other just doesn't doesn't support that in any way shape or form as it relates to the pennsylvania rule i would submit that if you look at the cases it is it is to my mind very clear that given the fact that the pennsylvania rule arose out of collusion cases if you look at what the courts have said in the commentators have said you know more in black in particular the reason for the presumption that is applied inclusion cases is that where you have a violation of the navigation rules and collusion is a very natural logical result therefore when a collision occurs and there is such a violation it's proof on the the vessel owner to show that there is not that connection because of that logical flow but the cases of also see if you look through them carefully whether it's the wills case where there was an attempt to apply the and in that case said there that's not necessarily the case and so the burden shifting should not apply the other thing they've said in the pennsylvania rule is that usually in  cases or navigational error cases the party that controls the evidence that is going to determine whether or not they violated a regulation or acted negligently is in fact the vessel owner and therefore it is reasonable to put the burden on the vessel on her to come forward with that evidence in order to rebut what is that natural and logical conclusion that's not the case in the normal  and i think you see that we said it will the benzene exposure pace wilkens which was a heart attack case due to overwork the puro case another collapse due to overwork and in fact the math this case the ninth circuit what the court said there was that in certain cases they implied that in certain cases jones act cases application of the pennsylvania rule would be acceptable but in fact particular case they refused to give the instruction on either negligence per se or the pennsylvania road because there was no such logical rational connection between the fact that  constant and that's what we're submitting is the case and ours as well the at the cases in which the the jones act cases in which the pennsylvania rules have been applied must exercise the highest degree of diligence and attempting to rescue one of the seamen that's gone overboard and that makes sense as well again as it relates to the negligence per se standards there is certainly up to up to this court to the side and you think that this oh absolutely and the reason yes tell us under kernan if you simply apply that to court do you criterion standard or point of view as again if you look at the underlying facts that were decided by the court she says yes there's a violation of the commercial  regulations however given the fact that free diving it's not governed by those regulations given the fact that freed i think it's a given the fact the plaintiff was experienced given the fact that there invent thousands and thousands of such dives including hundreds by this individual in particular that there just was no reason to apply that so that that regulation and i think based on causation and the underlying record and her findings on the underlying record that's accurate and in fact if you look at the cases this is where it's it's very interesting if you look at the conclusion that this accident occurred or would occur and i submit to your honor's that the court in this case has ruled it out very clearly all of the other remarks that mr wood made about fact findings are utterly irrelevant and this court made no factual finding about that causal thread because it didn't reach the issue now the thing that i want to emphasize is that the current  of per se liability and the pennsylvania rule are essentially the same rule intertwined and this court recognized that in the mathis case when it said that the only relevant difference between the two theories is that the pennsylvania shifts the burden of proof on causation to defendant well the current rule still requires some proof of causation but they are they are both basically fraternal twins if you will now there is no requirement in the current in rule that according to that dissent the court has decided that that any violation of any statute of itself holds the shipowner liable for all injuries flowing from it so the only undervote and pennsylvania is whether there is a causal thread a conceivable causal thread under which irrational trier of fact could conclude that the cause the injury that there was a causal link to the jones act and not as all we have to show is that there was some causal link however slight and the pennsylvania rule modifies that to the extent that we have to show that there  conceivable causal nexus between the two so i think when all is said and done this appeal boils down to the question of whether we can demonstrate to the court that under these facts there was a conceivable causal link a threa between the violation and the injury now we begin with the understanding with the realization that the scuba diving regs were designed to prevent hyperbaric injuries that's exactly what mr mcdonald suffered as a hyper very injury mr wooten i believe distracted the court by suggesting that the free diving is somehow easily learned and safe consider this you're on in this courtroom is about twenty three feet tall the free dive we're talking about violation we have occurred in violation here the question is whether that violation had a causal link now again i think the key to the causal link is one understanding the realities of what this man is being asked to do and to recognizing th to prevent injuries this injury occurs from a too rapid descent the risk in this this man had to make sure happenstance because he had to get down to the bottom quickly the manual and indeed most manuals in rates and the whole reason for those descent rates is to prevent inner injuries of the exact type that happened here if there had been a manual if there had been a dime supervisor if they had followed the scuba diving regulations this dive would have never occurred that's the thread what's more your honor if this court were to conclude that we don't have a causal link in this case the way that employers like he call it could avoid the scuba diving regulations would be to fire some of the drivers but in the davis case wasn't the violation of the regulation clearly the proximate cause of the injury it was your honor and one of the things that surprised me about all these cases with the exception of math is that these doctors are intertwined and you of the alaska state supreme court and horton relied on mathis for that very proposition that's a ship that has already sailed that's not an issue here the issue here is whether these facts permit irrational finder of fact to conclude