nine decision in the continental oil case kannan oil was a maritime case it involved a collision fifty miles from shore between a foreign flag vessel and it will platform on the outer continental shelf the first circuit in a decision authored by judge john brown found that there was no need no necessity for state law to apply to the purely maritime cl maritime law provided the right and the remedy for the plaintiff in that case in fact you noted that it was unthinking that state law ever would apply in such a circumstance because it had no connection to the state of louisiana other than being that louisiana was the egyptians as reason state we get maybe you could just jump up to the statute tell me how you interpret i've read the fifth circuit decision in the supreme court cases and whatnot i want to statute i think if a state law is directly inconsistent with a federal law then the state will not apply inconsistency does not mean different inconsistent so you means that the two laws cannot without pay whether applicable applicable supreme court in the gulf offshore case what is the but the but the gulf after case really speaks very clearly about looking for a gap in federal law and that's the problem i there's there's a political and there's inconsistent and you seem to want to take at them separately i think state law applies by default the question is whether the state law is inconsistent with the federal law you're reading the word i looked out of the statute it seems to me you're reading it out and what do we do then with that's my first question are you reading that right out of the statute and my second question is what about the language that speaks to first they said void and now more recently they've said substantial gap what about that was essential gap that's from the that's from the  situation if the federal statute allows state regulation i don't think there's a gap when when the federal statute does not touch a specific statute issue there there unquestionably is again but i think here i mean here we have this peculiarity where the federal statute is a floor so it does speak to the question but it only speaks to what is a floor right and that's basically a position about the if we start talking gabsi i mean if you could apply only the federal law and it would governing it the question the only problem is that the federal law doesn't purport to be exclusive as for us the federal regulations under the lands art shouldn't apply because the lands act specifically states that the state law must be inconsistent but as an interpretation of the federal statute let's forget whether or not the regulations require regulations apply but they are an interpretation of the statute but then we get back to the right issue the courts cannot create a common law rule in light of a specific stature provision under the gaps away are we looking for four for necessity or anything else and i mean why are we applying the were applicable by what usually means which is just a cover the situation and isn't an otherwise valid strachan i'm not sure i understand the question what is applicable mean in english article means that person to bring a state law claim now in english when mary english let's forget this  isn't the answer the question that in rugby gave the united states supreme court said federal law is exclusive in its regulation of this area and state law is adopted only as a surrogate to federal law passed there that's their seminal case on point i don't know how you get around the gaps in that case they're talking about avoid it backed off of that and talked about substantial gaps is the question is what is a gap how big a gap needs to be in order for states to apply well so you look well go ahead  jeff it sounds like then that you're embracing the notion which is what both of my colleagues have tried to ask you about and it is an important point so we're trying to press it is is it your view that we have to in some form recognize that that a gap is required before we so in california and your particular claim state law is applicable right yes ok why why do we need to gap then where where does the gap with the statutes of doesn't use the word gap but recreated the united supreme court corrected it but did they interpret the word applicable when they were talking about the gap and i believe so you believe so he said because it's limited function in a federal system federal law might be an adequate to cope with the full range of legal problems so the act supplemented gaps in the federal law with state law right right so what does that mean what should we do with that i mean in one sense california law applies because with these are wage an hour claims basically and california has a very expensive much more protective wage an hour yes yes all right so if we have to look for a gap in federal law because the said federal law applies on the shelf except where there's a gap how do we know what is a substantial gap where would we draw that line do we look for just for california's more protective places where it's more protective in its statutory scheme or do we do we need to find a whole a true void what is that we should look for when i think there's two scenarios where periods ok but they say this is to judge a person's point the federal scheme i think doesn't say you have to give an employee a pay stub but it does have a federal record keeping requirement for employed earners right perhaps so it's not a void but california is much more specific i think it's fair to say what do we do with that i would say it is avoid the standards are different whether an employer has to keep records of hours worked on to be effortless or is different from the employer having to provide a paycheck stub to the employee that lists the information required by california labor code section two to six the name address of the employer the number of hours worked the rates of pay it cetera can we can we turn to a different provision that seems to me that would be what the case is about what about the hours worked overtime certainly not in the way the california law does certainly not the everleigh say does not define hours worked in the same with the california talks about how you have to pay for hours that are work that doesn't necessarily help us with this problem of what about the other twelve hours of the day well here's what here's the distinction ok you have a list say defines hours worked as excluding certain things like prep time yes it does not set a limit on what hours worked can include yeah i think we're saying the same thing so what do we do with that do you think that's a substantial enough gap yes ok if that's the case and you're going to do this claim by claim it strikes me as a very difficult scheme to apply if we're going to apply state law sometimes and federal law sometimes claim by claim in a week in our dispute what is your response to that my response is that the law's the law if the law applies we need to apply it so the state law applies even if it's a little minor so little or it would still need to apply for  dream courtney was very concerned with they didn't want national uniformity of law and the the court recognized that that the fact that the in the employees working on the platforms commute to it's all sort of a spectrum they didn't say just apply california law out there they said federal law is the exclusive law and we're going to drop california law as the surrogate when there's a substantial gap so it's not quite as black and white as you're making  one doesn't even have to one can simply say you are applying the federal law and the federal law is someone that that an employee could bring an action against someone who wasn't the employer or the and other employee because section one thirty three of the longshoreman acts specifically contemplates that state law can be brought by state your claim can be brought against a third party so if there is a gap there was different the the act federal workers comp basically allowed the third party action what they didn't have is anything that spoke to how to allocate fault so they look to louisiana law and fill that gap right than the office because the savings time yes ok i think your time is up so let's hear from the other  side more yours may please the court my name is ron hall and on behalf of parker drilling management services the court has identified the issue there's been much question about what is the standard and where does this standard of gaps and voids come f because at that time you supply admiralty law and that's where the gaps were created in fact alleged and we're doing didn't deal with many of these problems of the we're confronted with here that's what the court was talking about when you talk about a gap they needed a piece of legislation to nine congressional record six nine six three there's a question there's dialogue about should we just import admiralty law in congress recognize that if you do import the law you don't import all of what they call the so called social law right that would  that congress didn't incorporate specifically the f l i say because there are quite a few other federal laws that exist at the time so instead they incorporated the whole body of federal law right time but this is a federal law that does not stand alone and isn't meant to more stringent regulation of why we disagree because i wouldn't say that that's a gap the fact is that the court the ninth circuit has recognized that the a f l sees a comprehensive wage in our scheme covering covering overtime hours and minimum hours of work  language doesn't have any of us in terms of what do you think applicable means by the way i would say that because it's federal federal exclusive jurisdiction applicable means state law will apply if there is no federal law doesn't say that no it doesn't say that congress said that that's what it meant and so congress said that's what it meant it didn't in the legislative history and we've quoted it extensively in our brief that's why rodriguez and gulf oil come to the same that's why they come to the conclusion that there must be gaps or voids before state law would apply they didn't pull it out of thin air they pulled it out of the legislative history which which makes sense well i'm not sure i read really and the other case was  that they say we're going to apply to the extent they say first federal law applies to these areas right right and then they go on to say to the extent that they are applicable and not inconsistent  seems to me the focus should be on whether or not california's wage in our laws are inconsistent with f s r way in this context i would say that there is a two step process the question is whether california law is required or needed here those it's on that point again i mean you are being a little let's just be more specific ok the united states supreme court started with a void and it has moved that language has changed now to substantial gap so even if we're talking about  gaps it's it's certainly morphed well and they have not most recently have not used the word void and it really kind of it's me that begs the question the judge person is getting out we're talking about a statute the fair labor standards act is such a unique animal it seems to be really  a inherent part of the problem for your argument well i'm not sure that well it is a problem for my argument because you said that it's a problem for my argument but i'm not sure that i that i would agree i would say that the federal the  comprehensive act and covers each of the claims at issue here indeed the plane has something about each of the claims right well if we go back to the complaint for a second the complaint that paragraph twelve the operative paragraph of the complaint has to do with these extra twelve hours these on call hours right there's no doubt that mendiola of the case that was cited in the complaint in the decision of the california california supreme court is in conflict with the f l s interpretation  that's true your honor yes it is that's why we go back to the standard and what the appropriate standard is and so what we've got is the two supreme court cases we've got a fairly healthy body of fifth circuit law we've got up in versus at insurance nine seventy three out of this circuit very different case different case but but in dicta adopts the standard and i would agree that the issue before the court is one of first impression and there's no doubt nothing like there's nothing like it but there's very persuasive authority that this is a two step process that applicable means in the absence of federal law i asked counsel what is your strongest authority for that point that's not a  about in legislative history is that congress was saying look these these workers are closely affiliated with in this case california or louisiana the shore you know where they were presumably living residing and so they didn't do a bright line they didn't just say and inch in this instance i e california law may apply and in california to these services it may not because it may be whether there's applicable or inconsistent state law and so federal is exclusively supposed to apply you stop there i realize that there's a savings closers a savings clause in many statutes that are passed along the federal government but here the these employees as they usually do or that state law should be incorporated into federal law to protect the employees differentially in other words it was meant to be non uniform depending on and that's why you describe which state law would be incorporated so what you're arguing for is a scheme in which these california based workers are covered by california law you know once they get off this rig and but and can the vote as i understand it but not before that well i would argue actually that whether it's traveling to the rigor not oxalis breath is arising out of order connection pacifically says that oxalic covers matters that cases that arise out of or or in connection with operations on the o c s clearly clearly getting these these workers from the shore to the rig whether by helicopter or boat is critical in connection with our rises and just their sense you know if these people are sent back for the day to go do something onshore then california law applies if they're sent back particular case your honor if they were sent back to work on shore for a full day that might take them out of the stream ok rising in connection with because there are workers with this company that do spec specialize and working solely on shore and said to the extension to the extent that they aligned with those workers and were performing that particular job for a day on shore we might have a different set of facts but we don't have those facts here what we have no congress need to be doing here with regard to protecting california based employees differently then they would be if they were in california congress my interpretation of this is congress took this out of your traditional federal on klav analysis by the oxalis statute by the oxalis statute and the granting of or the or the expression of which law should apply and the congressional history of how that was considered oxalis says federal law is going to apply exclusively unless there's something wrong with the a law unless the what the statute says it goes on to say that that state law will essentially be adopted as federal law over a little which which implies that there is no federal law so we need state law to supply you that way you essentially swallow up the rule i mean state no you know the focus is on inconsistent is the state law inconsistent with the applicable law because that's where the that's where the limitation is applicable and in consistency we have to give area of exclusive federal jurisdiction located within a state and you say that's different from federal enclave it's different because with these the  no it has a different limitation yet it seems that supposedly federal law will apply at the time the fair labor standards act did exist and so federal law will apply unless there is some sort of absence ok well we've got  time here where there commuting from the shore so that that answers that question the closest case we have here and i minutely it's a federal enclave case and it's it's a dinner carcases the corn doubler decision which said that it  analyzed whether state law would exist on a federal enclave and use the savings clause in the same way that the plaintiffs would use a savings clause in this case to find that the state minimum wage law is not in conflict or inconsistent with the federal minimum wage cause law and therefore it would apply as along i mean this is not our direct problem now but i thought the california name wage law as essentially operated thro ages not have a specific provision but it's been interpreted by these things that you're saying don't apply whatever they are the federal government believes and under federal law that these people don't have to be paid for that time and as far as federal laws concerning my state court hit that very issue and if that the question was whether this is the texas law was inconsistent with federal law and it said do we have to decide now whether a statutory provision under under federal  a decision interpreting a federal statute was inconsistent with the state law and it said it basically got to that issue and it said we're not going to discuss it now we're going to send it back to texas and i can decide whether the law is inconsistent so this is this issue is right whether whether a state law can be inconsistent with a federal common law or enduring you don't have any argument and you're not making any argument that under federal law there would be any such requirement under federal law it's interesting if you thank you thank you again for interesting case