i represent richard wilson richard wilson was eight maritime worker dock built for almost thirty years during which time he performed every construction work usually of a maritime nature and i was exposed to extremely loud noises while doing the time work when he retired in two thousand and fourteen he was found to have a profound hearing loss of forty six percent so he fi when that's really jurisdictional element and the presumption as to federal jurisdiction would seem to be putting that the cart before the horse when it comes to the the burden of  so that i think of that go ahead they don't traditionally always when we talk about coverage it relates to factual issues where or where it presumption would apply and but what why should pointing out with regard to the presumption is that the trial court placed on mr wilson the burden of current coming forward with proof of navigable and i think that the proper approach would be to place the burden obligation to satisfy ourselves of jurisdictions i don't see of the merits of this dead you can come into play i mean yeah sure we can apply the presumption to whether he was you know involved in  sure under the new jersey act whether it would provide coverage to somebody and i want to walk that was that was one of the main promises that required the development of the lawn sure what was that the  reads to me is that the new jersey statute with a plot so it's a question just of which scheme is going to apply that maybe so if a court were to rule that way like you said i can't say for sure that the new jersey statute would cook it up but some of the workers compensation statutes do overlap with the federal statute well we we cannot take up with  he should why and that's because st we've got north so includes the route three bridge a mile eleven seven it's authorized the federal government publishes a chart to aid navigators that chart shows the entire length but what is in the record is the also the permit that was issued by the united states coast guard and that permit not only for the route three bridge but for the bridge immediately north the permits impaired in addition the grange has navigation lights boat on it at the request of the u s coast guard the bridge has a fender system below it the fender system is  about large ocean going vessels container ships some of them are seven hundred thousand feet long we're not suggesting at all that you could take a can an ocean going companionship up the passaic river  now serious you have any record evidence about the draft required for a toggle abort only in the cases i cited in my brief ok and what of what are they what's what's your best case for you know what a barge requiring only what four feet or  is william bush and i represent the director of the office of workers compensation programs at the department of labor we're in this case to address the limited issue of whether if you have an flow test still has viability we agree with this traditional understanding of the term navigable waters bush kaiser et enough when the supreme court tells us we need to be really careful to separate out at least for different purposes in the ability and you know rivers in the harbors act as a commerce clause statute and you know when we're dealing never gave servitude that's different but here we're dealing with admiralty jurisdiction of stucco homes didn't support to address that why should we extend you know a well there's a a lot in your question that that we thought about when we were at our supplemental brief here because or it does caution us that we have to be careful about the context that we're defining our waters and in this case we felt that we would have to given the given the way the case law works that the never debility in fact test was invented and applied in contexts above the title influence and in artificial water wes we felt that we would have to find a reason to not to apply an ebb and flow test and a longer context and we were unable to find one in any case and we think it serves the purpose of the act i'm sorry ups right but there's a rd piece here which is state jurisdiction and new jersey maybe you can tell me this is a typical but new jersey scheme appears to fill in the gaps and cover all marine workers who who are injured on waters the aren't now the waters of the u s so we have three parts here if we expand the federal part then we're going to be excluding the state part now is isn't it you see scheme atypical for some reason we should worry about here in your experience i don't know if it's a typical or not here are we i'm wish i could claim to be an expert on all fifty states workers compensation was but i'm not but you know rather than leaving these matters to state workers cops well and i want to get to that issue of your spectra question too we actually don't think this is an expansion and we don't think that the stucco homes rationale recognizes this is an expansion we think it's been dormant but we think it's been there along because the case law has always said that now the whole waters extend to or include waters  possible reading of the cases bracket which was which is better on the existing cases why do you think it is a water reading to take a more expansive approach than a restrictive one that leaves more in the hands of states well our concern is that and i suppose i but i'm going contrary to the hypothetical vital bit here because you know if new jersey if you were worried about the risk that a worker could be would be that we would be worried that we would want to make a decision based on what happens in new jersey or a set of states that would be different if another state were to restrict its coverage or change its coverage and counsel could we step important in terms of a coast to coast coverage to have an ebb and flow test well whatever the flow just a certain way if we to apply to the extent that it's a factual question it's an easy and certainly in other statutes and other century contexts where the ebb and flow test has been recognized as still viable there's been a concern about consistency along those lines just as you mention so that federal authority would disappear reappear at a it may we think that the that again there are a number of sort of factors intersecting there are there already cases where a worker working on a bridge project would be covered on a flood stage and traditionally underst in fact waters assuming no even flow test bed would not be covered if you were standing on top of the cofferdam which is terminally affixed to the sea floor so workers are always going to move in and out of coverage of whatever test we adopt going to call them with the bridge worker who's on next to the water not being covered but the bridge worker working on the float is going to be cut so we're going to have some border issues the question is how do we minimize that or what do we do about it there are always border it to have a very small creek well they when the act was to answer that last part is a small very small creek that was still affected by the ebb and flow of the context was added but the supreme court perini said that that status test doesn't apply to workers who would have been covered before it was and acted and thus we end up in a situation or today where any worker who's injured in the course of  long schuurman on a vessel by definition being that the will waters and then on of on a vessel as that term is defined in the act yes unless he were far enough out to see that he's a to st and they could make their case easily that way this issue would never come up so i mean that's one of the reasons why we think that you know that in the ass ninety three years there's no binding precedent in any court you take a position on whether a channel that's what is it one hundred and twenty feet wide is navigable we do not take a position on that as a matter of law and generally it's a factual question to wed and some and not the kind of thing that the to belittle in fact that might suggest some difference but we think if an algerian were to make one final or the other in favor of coverage that that would be a legal error because they failed to consider the other tests and what would be a problem is there any situation where a worker who the director believes should be covered by the act would not be if the ebb and flow test were limited not extend to those in waters subject to ebb and flow there are workers who would not be covered under the act whom the director believes are intended to be covered i understand your question i'm sorry our position there would be that the waters are our toys and waters until the time no longer affects them so that's the time we're speaking of unless you have a specific example of the body of water that you mean that's different than that function in the application of the statute do you mean whether or not the employer is a maritime employer yes ok that well that's a separate element so a maritime employer has any employees in maritime employment and so it doesn't have to be necessarily the employee whose cases before the or mr wilson in this case and from the my review of the the record in this case there's been no finding on that there may be a stipulation but i'm not aware of it the maritime employee status or the status test as we call it in section two is currently only applied to workers in adjoining presumption is not apply in legal interpretations involving jurisdiction under the statutes so the records of applied section twenty presumptions aside is when new substantial evidence is presented in the record challenging that their coverage for the act is present that's what the case law says and that's if i have i do not have not applicable under this particular act there are other cases that if they toured st record office workers compensation programs substantial perfect sense with those cases that are dealing with him and so to to to clarify my question we don't have cases that are rejecting the evident flow test when we're dealing with coastal waters and waters that are in fact subject to ebb and flow why should we be be the st court to say that is not a proper extension wind inland waters where of course of course they're not subject to ebb and flow but that's that's exactly where the daniel ball came into play with the supreme court articulating there that t navigation but then seems to apply whether in fact it's being navigated commercially if you applied that the test failed j m articulated years i think the heat correlation with the early can now is a little misplaced in that that the law you as you describe it is forty feet deep we only knew the navigational they can move around the board to the other direction and hook up and push it in the other direction so there are some vessel is going to have to turn around at some point to be able to orient the motors in the anything left to argue and we know if we well it in this case even if you make the decision that the river in fact was not able the only issue before the court  there as a matter of course but let me think if we said it we remained it would you supplement the record what evidence would you supplement the record with to suggest that the river there is not navajo navigable in fact navigation lights in the fender system the depth gauges and all all of this was for our commercial maritime activity not for recreational activity there's a case law from the supreme court possibility of commercial activity by vessels at that same location of course they'd be small look at the vessels speaking which i just want to add it's a curiosity to me that we're so it's i just don't think there's been an opportunity to bring this up before and i think that the issue that's before this court is is it's truly important and that's what has to apply with men when there's a dispute of numbers ability within the title waters are right thank you very much to old calpol for excellent arguments today we will take to that very interesting case under indictment