who clearly fits all of the definitions from the chanters decision and the other supreme court decisions to make him a qualified seaman in this situation those tests start with the question of whether there was a soul related employment that was clear he did mr doty work on a fleet of vessels that is clear it is not contested did he contribute that his work contributes of the mission or the function of those vessels again there's no dispute that the work he did did so did he have a temporal component sufficient to meet the thirty percent bottom s that he worked on traveled along a three mile stare in a span of open water and the dangerous floods in river and performed the mission of building the the bridge but his work was specifically focused on making the vessels and their pertinence is be able to perform that mission and accomplish that function and the last is that  their work it did the work need to be done on a routine basis of course it needed to be done and he did also as and it is only case which we cite to the court decision and clearly they two cases are absolutely distinguished aware as in you can and marine mr vo was focusing his work on the loading of the barges at the  hudson river we point out how dangerous the this project was from a navigation standpoint cancel excuse me if i may drop you crucial language i think it matter who cat in tied up ad and more in a safe marina where the worker could walk on and off the vessel onto the piers here you had mr dodi out in the middle of a three mile  location on they on the busy hudson river with some sixty million twenty eight thousand vessels passing under that bridge or the evidence in the record you have subjects of the tides and w that we were talking about a very fit fancy a mcdonald's a mcdonald's restaurant that was in the middle of the hudson and it was just sort of this new concept and that's where mr duty was working and he was injured with that as a server of hamburgers get that it's clearly set a very that's not even with all due respect that's not a very good analogy because mcdonald's maybe was floating on a barge and might be a different issue but here why is that because the so the crux of it is not the location really it's that he's got to be working making hamburgers and serving them that's really not what we have here we have a man who is going to the train on his barge which was absolutely necessary to build this bridge ship's a specialized training as ringer  was down and they couldn't do the work they couldn't accomplish their mission at that time some strict dodie is sand with his tools and his materials from the materials parts and sent out there to get this crane to work to be able to use really performing mechanical work on the crean's not the barge thank you very much he's doing add but there's no distinction under that you're wrong group versus a great lakes case the appurtenances other vessel are the same as the vessel and that was involved in the equipment on the barge so that he could perform its function it's the same as an engineer that would be in the engine room of a ship judge said that engineer has to keep that engine running so that the ship can do of the circumstances test right i mean we can debate any one of these individual factors and it may be that you have a strong argument about one factor or another i mean i don't i don't think the other side maybe they are  on the river and even if he has some factors in his favor you would agree we still have to look at the two teleni of the circumstances correct i will agree that's the supreme court's  direct that this is a case of a seaman but and we can get to point to is in case you say well it's a jury question but the point is all of his work compared to what mr bouck was doing all of mr dodi's work was focused upon making those vessels be able to form their function whereas mr vote in the buchanan case was focusing on the loading long shoring of the work that vessels but mr dodie wasn't building the bridge mr dodi was fixing the machinery that could be used to do it so that's why he's an engineer that's why he his job let's face it an vessel that that has to work ultimately has a purpose to do something whether it be transporting cargo you could say that the ship's engineer using but i think you're trying to analogize you could say that the ship's engineer was really just doing long shoring because he's helping move the vessel by his engineering work here mr doty could you could make that argument was doing bridge building because he was fixing the machines that had to do the work but if it's b yes or he's fixing the cranes in order to are necessary for the bridge building that's right and not just the cranes ray was ok you know on one hundred and ninety percent of his work was on the vessels whether it be fixing a crane whether it be pumping out the vessel whether it be changing oil filters whether it be handling the the spuds all of these different things at times he actually operated the crane as that estimate shows so his work was focused on the vessel whereas again and vote his work was focused on the loading of that cargo in the safe waters so you've got the two distinctions not in safe waters out in the open sea and we point out all of that there are the deaths that  occurred during this project and also that his his work was directed solely and to the function of those vessels of a could accomplish their mission completely different from what we have in  test is a multi factor test and to give it some context the reason why one prong of the test talks about the serving the function of the vessel or contributing to the function o but doesn't need aid to navigation might still be considered a crew member so there they said yes and that is why they added that test if you are sailing with  contribute to the function of the vessel and the accomplishment of its mission you may be a seaman but unfortunately a lot of plaintiff's attorneys have taken that factor and tried to apply it to situations where  the employer is not traveling with the vessel and to do so is not only inconsistent with the law it's inconsistent with the common sense definition of a seaman seaman means a sailor somebody who longshoremen contribute to the function of the vessel function of the cargo ships is to transport cargo loaded or unloaded longshoreman do that they're not seamen so that in and of itself is not that test the key part of the chandra's task is what the employees what relationship is to the vessel in terms of the nature of what the employee is doing that's the key p and if you're not traveling on these vessels while they're moving you're not a seaman and there isn't a case out there that holds all of them can i can i ask you about that point is it really critical that the vessel be moving i mean what if the barge were floating out in the middle of the hudson all the time is bobbing around not more to the steel sp s and we're literally in the middle doesn't that expose it to the perils of the sea the wind the waves the passing maritime traffic i mean is every call there was evidence in here of a couple of crashes in the middle the hudson where five people die so how do you for example how do you draw a line at whether the vessel is stationary and i understand that may not be dispositive in anyone's you yeah i think that's known as like you're saying stationary versus traveling becomes dispositive that if the ship is not moving you're one hundred percent out of the game but can that be true well that's certainly what the courts have focused on when when analyzing a seaman's duties on the pearls of the sea part that's cited to a district court case in kentucky this dense in case where the court there in the st summer case where there was a bridge builder out on a barge in the middle of the river who made the same argument i'm exposed to the associated with siemens that is and if you look at the dense incase they explain what that means if we took the definition as simply big accomplishment contribute to the function of the vessel accomplishment of its mi characteristics of the employee's employment and if you're not traveling with a vessel you're not a seaman and the court in and you can a marine and other courts there and it seemed to me you're suggesting that say staying in the harbor doesn't matter is a harbor pilot a professional harbor pilot a seaman yes so it's not a question of whether you are in the harbor or not or going a long voyages or not right it's i mean that's what i don't understand if i harbor pilot who's just puttering back and forth and back and forth within the harbor owns of the sea why would someone going back and forth to barges in the middle of the hudson for purposes of that factor alone similarly be subject to the perils of the sea not that that gets you over the totality of the circumstances test why does that factor not satisfied because with harbor pilot you're looking at the nature of what you're doing so if you look at o'hara the two thousand and two seconds or kidneys you can discuss  they talk about certain factors that need to be agile eyes to determine the nature of the job duties harder pilots actually navigate vessels there in their navigating vessels traveling over water know that's the classic definition of what a seaman is but now we're turning to the function relatives of the vessel and i get that you're saying that say for a harbor pilot that is closely tied to you know sailing right that's what a seaman does is you're piloting a boat i'm trying to isolate the various factors we're talking about what i'm trying to ask about is the exposure to the perils of the sea you know i mean following up on judge lawyers question about the mcdonald's it put me in mind of you know the galley cook you know you could be you know serving up the hash every morning and you never see the deck and you never weigh anchor but you are a permanent member of the crew right and i can see that you're getting into other questions would you not agree that with regard t the galley cook is as exposed to those perils as the captain yes but the if the galley cook is actually traveling on the vessel he is a crew member in mind here mr doherty was working on barges that are worn by some buttons and they are stationary they are a place when he's doing repair on the equipment on these barges they're no longer acting as vessels they have no crew so you're saying there are danger of them so and i understand that argument that when they're mord they're safer right they're not going to float away or something and by the way what is a steel  could you just i am curious what that term is is not a potato i take it no it's a steel pilings so a barge has a centrally the pilot can pass through the whole and effectively because there mord to these pilings as a factual matter in this case the barges were less exposed to the perils of the sea then you know a shift is going back and forth and back and forth but i think i think we're isolating one to one target and making that the test so no i'm not asking that to be the test i'm just saying that if you have a multi factor test we do have to ask whether virtually every land based maritime worker would be considered a seaman because many harbor workers do work on water and for that reason alone you c out of the st circuit coming back from the supreme court where the supreme court ruled that the super scoop which was digging that tunnel across the boston harbor it was not moving other th same stuart of work as mr dodi changing air filters putting oil into the machinery while that construction project for they staten island naval yard was going on those vessels are traveling back and forth which is what he's trying to convince you is what a seaman does but this court found as a matter of law in the us to be in is that mr as to being as was a seaman rejected that he was a longshoreman why because he was contributing to the function of that vessel and it's a person and says the same thing as mr dodi that letter what council wants you to do is to reject but we landed a decision which got rid of the aids and if you look at the stewart decision that came out of the supreme court in your honor stuart that that dredge was moving hardly anywhere but it had a big crane type of device just like the suit the the  strong island here and it had to be moved to move along to do it stretching just like the strong island had to be moved so this vessel was moving at times whether or not it was moving while mr dodi was making it capable of had to take his tools and materials and that page five thousand and seventy two of his deposition he testifies he said well you had to be a pretty hatchell guy i'll tell you you had to be able to carry i don't know sixty or seventy pounds because everything you did everything you carry tools and materials on that work when you got to your destination you carried your tools and materials off the boat onto a barge sometimes across two or three barges that to get to the one you wanted to so what we is transportation function of which he participated in of his tools and materials seven times a day over a half hour it's one thousand two hundred and sixteen percent of his day transporting tools and material that's where he was loading barges with rock walking off the barge that was tied up securely to the pier and could protect himself and some of these issues that are pointed out in some of the cases out well if you're out if you can walk off  when there's danger well maybe that's not the same but certainly mr dodi where he was couldn't just walk off the vessel and he had big he was on the vessel in the middle of the river and he subject to two certainly the question and we didn't get to the point that if it if you rule that he wasn't a seaman a big guy i point out and just sum it up in my reply we talk about something else at the lower court said well condition that was involved in was open and obvious and i want to point out it's clear that the concept of being an open and obvious condition is merely a factor that goes to comparative negligence it does not preclude a longshore worker if that's what he felt to be as from being able to bring a nine o five case i thank you for nice argument