versus new york good afternoon your honour's andrew boe experiment here on behalf of the bill and charles moore tina's may please the court this case presents an interesting geometry problem how to  marine oil or to safely exit from a confined space via a vertical ladder with hydraulic oil on the bottom of his work but we believe the court below did not perceive the nature of the dangerous condition presented here and we urged the court to reverse and essentially we have five or agreements as to how the court below erred first the court said that there was no proof where more tina's was the letter and that's to be muddied by the record at appendix in numerous places martino's the definitely testified that he was between the fourth and fifth wrong on this letter and that's heading up counting from the bottom now going from the bottom your honor that's to appendix page forty eight in appendix page forty six he testified that is left foot was on the fourth run from the bottom and  confined space your client is i understand it was in that area with the oil in order to clean it up corrective that was his job so what is the hazardous condition piece of the your client when he is on at floor in order to clean it up he's there to remedy the dangerous condition help me help me out i agree with you there your honor this was a known conditioned and i don't think that's the main point we're trying to make here that the oil on the deck was a dangerous condition set that aside and just focus on the latter when we can set that aside with the proviso that it quoted his boots and there's no way to get it off his boots while he's down there so he's a unique supply scam the first thing you have to do to clean these boots is to take them more and to use a grease or and there's nowhere to sit down there who are untie your boots if you look in the record this is a record and was unsure and i saw it have to sit down so i just assumed you could use the supplies to clean them down there because there's no there's no challenge here that the hazardous condition is not being able to clean your boots before you leave the area that's correct but i think it contributes to the danger the lack of the handles because his boots are coded while he's going up the ladder we can certainly put aside no we're certainly arguing that only when you retract that statement your honor we believe that these this longstanding condition constitute an unseaworthy condition because if there was excessive oil on the floor he complained about that that given the task to certain people to clean and i'm trying to understand what is unseaworthy what a condition that's inevitable the release of oil on a ship is the ship provides for the cleaning of it your client is the person who supposed to clean what's on seaward there's an excessive amount of oil on the deck and instead of fixing the steering pistons to a well is it an av would be one thing if there is all an oil in that ordinary you expect it because by the nature of these machines they spin off while that would be one scenario another scenario would be the machines more being well maintained they were leaking when they shouldn't have been leaking and that was creating a house or just construct you know from the we don't know you know there's nothing in the record to indicate that these machines were leaking excessively what we do know is that there was enough oil on the deck that there were buckets to pick up that oil to reuse the oil so i think the inference can be drawn that they were leaking an excessive amount of oil onto that deck who wouldn't be if the buckets were enough to capture it i mean it's a little unclear what what exactly you're saying is that has serious condition if i can move on from the real hazardous condition is the lack of the handles while he's going up and in order to you need to visualize what this  i'd like to actually to ask you about that because i was confused in the record about the hatch and he look at page eight one hundred ninety four and a ninety five the record the hatch cover in figure one that your expert  has a ninety four and a ninety five this is the fisher maritime report figure one says hatch cover an entrance to steering compartment and it describes one does not it looks to me like those are different yet it seem the same to me your honor and i have no explanation for that it seems to me that figure one is not the same hertz as figure two i think how can we tell which is the one to look at  see i noticed the same thing figure to your expert's report i have no explanation for that but figure two is the correct figure how do you know that because we were on board the vessel and and the latter infeed you two is on the left side of the hatch as you're looking at figure two and it's going straight up and it's adjacent to the open hertz cover ok if you look of the rectangle which would be where the hatch cover is on this not along the left side of it if you look at for you for you're correct your honor the you're going up to sweater you cannot see you through the fifteen inch diameter facing the hatch cover in the record mr martinez is shoulder with is twenty two inches  he's going up the ladder in that hatch were wide enough you could conceivably reach the hatch code but because the hatch is fifteen inches wide he needs to turn to get up to use the thirty inch wing of the perpendicular from the hatch cover there is nothing to grab onto to prevent him from forming but he said he facing the hatch covers it comes up the ladder initially not he's not of going down sideways fifteen inches wide this is a yardstick i weigh one hundred forty eight pounds he weighed two hundred i mean this is a foot long he weighed two hundred forty pounds there is no way he's going to fit through a fifteen inch opening facing in that direction ok now as far as the combing l m t years that he worked on this ship i believe nine years and that's what he had been doing for the nine years right that was one of his jobs you know but he'd been coming up and but this is a dangerous situation here especially given the size of this hatch and the fact that you can get out on the side where the hatch cover is so far as climbing you need notice well constructive notice just because of the size of the hatch regardless of the absence of accidents over the course of that that sells absolutely the obvious that even mr dune the vendeans expert in his report said he had to twist while he was going up the hatch and why wouldn't the coming in the side of that i had to cover be sufficient to hold onto it seems like that wouldn't work for a long time but first of all accounting is not a handhold if you if you look at the combing not to say it's ideal but right that's what in the position that mr martinez was when he slipped he could not reach the combing or expert has dr fisher has has gone through this so he could reach it i thought he snapped his body's above above it but given the the average length of the your which is twenty inches and of the height above the calming that dr fisher has extrapolated mr martinez would not be in a position to reach the combing to use fires and he's too far above it the calming is too far below it and just visualize if you're holding something below as you start to fall it's not an effective means of stopping the flow it should be something above you on the side as you're facing the side to allow you to stabilize yourself and prevent a floor where what is the hold onto are all the other cation see came through the hatch i'm assuming he did his best your honor i mean i honestly don't know how anyone would really get down into this hurts safely when you're coming at it from the side with the hatch cover open i understand your argument and in the abstract persuasive it's until we add in the fact that the man somehow did it for nine years without a fact rather a sight to judge hand in the t j who merely because something has been done for years doesn't necessarily make it correct in on seaworthiness i understand but i'm trying to again understand how anyone had noticed that this was insufficient when you know there with it would it was designed to specifications at the time and and your client both successfully used it and didn't complain about your honor there's nothing in the record about complaints you're correct about this or anyone else's complaints right that there's nothing in the wreck or anyone else's accidents there's nothing in the record about other accidents but that does not make it safe and as i've tried to demonstrate again seaworthiness or negligence they mean you're saying that you have the notice obligation on it well new or cabinet where he started with the leaking pistons he says that there was an excessive amount that he complained about out on a number of occasions so white why and why don't we have it at least a colorable claim of this here because he fails to describe a condition of an reasonable slippery miss as this court's cases have held mr martinez from his own testimony entered the steering compartment  performed all of his job duties emptying the pail the collected the oil cleaning up the steering cabinet back and then preparing to exit and then her way up the ladder he then slept so the and so the devices that you had to capture oil were not sufficient the overflow and therefore created the hazardous condition of the oil on the dash but the oil on the deck was not unreasonably slippery so that he could not perform the duties that he was charged with performing in the steerage about in the question of fact as to why there was a reason why slippery because there was no evidence that the steering compartment deck was honor his own testimony he knew of the oil condition right he was charged with cleaning it he said he was wearing oil resistant boots he entered the steering or bent he completed all of his tasks it was charged with doing there as reggie pointing out previously he could have cleaned his boots with the existing cleaning supplies there was no testimony or evidence that it would have been difficult or impossible to do so he apparently neglected to do so or neglected to sufficiently do so and upon exiting due to remaining oil in his boots he slipped on the ladder the photographs do not show pales in cofferdams spilling over they show them containing the leaking oil and grease they show that the containment measures were weak yes there's no evidence in the record one way or the other your honor and i would just record seem to dismiss this claim in part because it was based heavily on mr martinez affidavit which he found inadequately corroborated by documentary evidence but was that correct why was it mr martinez his own testimony about the state of the compartment adequate to find that there was an excessive amount of grease i'm not sure that would be the basis that i would rely that decision upon your honor i think that the i think that none the less other record supports the conclusion that there was no defect of condition caused by leaking oil and grace because other evidence in the record in addition to his testimony about his duties about his successful performance of the inspection and the and the recycling of the oil in the cleaning of the cabinet in addition to the photographs of the containment measures together to support the conclusion that there is he cannot establish a sea were in syria where the display record reflects that he had complained about this also to some engineers as well i was a little unclear who they were and who else he might have complained to who went to the city did anything in response to the record answer those questions it does not most critically here although the record does reflect that he complained to somebody  there was a thick coating of oil and grease that the paint cans would routinely overflow onto the steering compartment dak i mean there does seem to be evidence in the record that there was excessive leaking certainly honor and arguably that is neither oil we can shrink this in his favor your honor that is arguably why the oil men were charged with cleaning the cabinet and provided all the supplies when they did so as to the complaint that he made in response to judge carney's question there is no evidence in the record as to whether he complained before or after these containment measures were put in place and before or after the oil men were assigned this duty says before the august twelfth accident i complained to yours about the yes before his accident yes but we don't know whether or not he complained and then they put the confidants on the oil pans there we don't know if he complained and then opportunity to introduce evidence here and he never stated you know whether he complained that these containment measures were in adequate that this was that this excessive leaking was not  your obligation to refute it was question back to say that well after he complained we took the following additional yes but there's no evidence that you put forward that it's either that's correct your honor the evidence is are more modern and updated safety requirements they don't supersede the existing or safety requirements so the fact that a safer letter might be able to say for handholds today doesn't establish that this is defective and with no record occasion for what was acceptable include a hash of that size yes your honor that at i believe i don't have a citation for you but i believe that the hatch in the latter met the required standards and have not the existence of us the hatch cover and the combing are have been recognised in other contexts as and if you know the next available effective means of getting gaining a handhold and although the more modern industry standards might provide a certainly a more comfortable or more accessible handled it doesn't render the existing configuration of this ship a defective unsafe condition notwithstanding the fact that for a large person it may be an awkward squeeze as you pointed out he had successfully managed to navigate this awkwardness for nine years as had all of his colleagues who had been using this and there was no record that also when the coast guard came in expected the the steering copperman although they don't and do an inspection of the latter there was no record that the boat had ever been notified by them that this seemed like an unsafe or dangerous condition so the latter satisfy those safety or currents have been used for over fifty years without complaints or accidents and it offered multiple other handles and the osha regulations for longshoreman which aren't governing here but are analogous it only requires an effective means of gaining a handhold at the top of a ladder and there was such an effect of means here as demonstrated by the history area much thank you at them you have received two minutes  at one forty eight he does go into detail about the excessive amount in the coding on the deck in this enclosed steering compartment as far as the coast guard inspections you cited in our brief the coast guard is mainly concerned with passenger safety or there are enough life vests they don't inspect every appurtenance on the vessel and as a matter of fact in one nine hundred eighty nine the coast guard came out with additional directives which were cited in dr fisher's report that a pertinence is should be modified to make it safer just because a vessel was built according to whatever specs may have existed back in the early sixty's does not mean that you should not modify it to make it safer for merchant mariners in closing it's not the coastguards function to determine what she were the it's this court's function to determine what sea worthy in going up a ladder sideways against the wrongs with no real place to prevent yourself from falling your opinion is unsafe dangerous and directly caused the section thank