we submit to the court that the first and decision particularly hurston to which was mcrae construction versus the director in one thousand nine hundred nine is governing in this case in hurston to the issue specifically deal and it wasn't accepted then by the ninth circuit they also said there was no deference that they needed to give to the director on the interpretation of what is a harbor worker there was also the same effort as you can tell from the discussion in in hurston to try to separate harbor worker from the limitations imposed by her twelve curves welding and the ninth circuit said no curves welding is controlling here in the reversed by herb's wilding said our duty of obedience to the supreme court is not conditioned on an explicit reversal by name of prior inconsistent ninth circuit authority and the same certainly applies with respect to this case to the extent that there is conflicting authority from the benefit review board decision it is clearly subject to an overruled by the decisions of the ninth circuit whether or not you go through what i think would be almost impossible swelling was limited only to welders or only to herb's welders the courts have said that status is an occupation it is not a geographic concept it focuses solely and it's the courts work the director's argument about the ship with peer not to say that that was creating an exception but to say that that argument had no force in the case and i submit that you cannot reverse that and say because they said this doesn't apply in this case that somehow they created an exception that says it actually is a clickable in some other case i think if you look at the seventy two amendments it's very clear that  the nature of the pier is not the determining factor one hundred seventy two amendments to the act were intended to provide protection for people who were over the water and then walks onto the land it was intended to protect those people when they moved out of what was then the navigable water site is into the broader state is established by the seventy two amendments it was not continue to try and embrace land based workers simply because they were working near the water prior to the seventy two amendments land based construction workers were not covered the intent of the seventy two amendments was not to cover land based workers and person she said that more than simply the law your honor i just want to briefly remind the court about the facts in this case kirsten said that the status to mr mom how there is no cargo that will ever flow through his trench it ran parallel to the water and this case i think your honor has ruled by her stand and i think that the court should reverse the court's decision thank you thank you very much  under the longshore act because he was a harbor worker he was a harbor worker because he was involved in the central component of using a tear that would be was used and will in the future be used by ships to start how part of that extended he  was totally on land parallel to the to the shore he was on land that's correct your honor however one hundred seventy two members of course extended coverage of the long shore act on two adjoining areas of land the submarine berthing words at pearl harbor he was engaged in the work that provided the utilities particularly the electrical utilities and communication lines for the peers the petitioners rely strongly on the supreme court's decision in herb's well being for the proposition that even harder workers must establish a direct connection to the loading and unloading of a vessel in order to establish status under the longshore submit not a correct reading of herb's welty in herb's welding in the court following its earlier decision in roderic way found that the employee was not covered because he was engaged in oil drilling and oil production which the court said was not maritime unloading of a vessel if we're going to write an opinion are going to draw bright line rule what's what's the rule we should adopt how do we know who's covered and who is of your honor in this case it's a very simple difference between what happened in her in this case there was a connection between what the employee was due to the direct connection between what he was doing and and ships he was building a pier that would be used for ships the ships with severino would come in from their patrols at sea and they would use these piers for docking  whenever they needed to do while they were in port and that if you want a bright line i think that would be at that if the employee is constructing a facility used by a chef that is a harbor worker and that the that is the director but the director believes that is the position that was adopted by the second circuit in the fleischmann case the third circuit also in a case called dundon says recognize that building docs are peers used by shift is harder work the fourth and fifth circuits of have also recognize of the sort of work is covered maritime employment although they have not addressed what specifically whether falls within the definition of hard work or under the longshore act  officials also make much of the fact that mr mama specific activities were not inherently maritime in nature that is breaking up all concrete digging ditches and pour a new concrete that however is not the american worker no your honor i think if the account certainly get to a point where there's too attenuated a connection he might well fall within the exception of the statute for employees who are data entry to the site again your honor if it's somebody who's driving a truck you know certainly defense the particular facts you get into a traffic accident a mile away from the state of use that far away he well might not recover because he's not on maritime situs but he's on his way to the s chama including any longshoreman or other person engage in longs for an operations and a hard worker including the ship repairmen ship builder and ship breaker but such term does not include it has a whole list of exclusions so we have employees we have excluded employees and we have harbor workers which includes but we go back to herb's welding and herbes welding says by user the term which excludes individuals employed by arena a marina if they are not engaged in the construction replacement expansion of the marina and find negative implication if you work your way backwards it sounds like if you are engaged in the construction or replacement in other words if you if you're working on the ancillary facility you're excluded unless you're working on the construction aspect of it which this person was by if you work your way through that that person also is kind of express included that i would agree i would agree with that your are the effects of this case are far reaching and i have other cases on the pier four hundred mer sealand and ally harbor and of course every time you have somebody hurt building up here you get this person defense thrown up in your face and they defend his faith his position that hearst and knox appear construction out of the longshore act and her in her stand you've got this case where you have the shi fear i think the night circuit went out of its way to distinguish hurston from all the other peer cases in the world the ninth circuit said quote mr hurst and was not working on a peer used to accommodate ships or any sort of shelter or facility for ships nor does the record establish that he was working in a harbor which is a place for ships so i think that the ninth circuit went to great lengths  which is certainly different than other cases the modern trend has certainly been to include here construction workers in the long strike pittman for circuit nine hundred ninety four welder on p of things going on with the purposes of the work that he was he was doing and i think he certainly falls under the a definition that i've just read and then along good morning may please the court my name is christopher field now represent healey to its builders i'd like to start my rebuttal by noting that the court inquired how far shall we extend the act and pointed out that there might be an accountant on the job site and should we cover that person according to the director's approach that is exactly who would be covered everybody on that site and we contend along with mr mannering that that the at odds with the supreme court's precedent and with this circus precedent the construction project begins in many instances with a blank parcel of land that may need  soil testing or soil boring to determine whether or not piles can be driven is the person that goes down to do that soil boring covered under the act we would think we would argue that on of the directors position that person this people who are working on a marina except if they are in the construction repair and replacement business which suggests if you back it out that anybody who is constructing repairing or replacing am arena which is similar to appear it's covered and then we don't get into your hypothetical on your parade of potential horribles yes yes your honor i think that  the the answer to that question lies in the reason that the statute was amended in one nine hundred seventy two and the reason the statute was amended in one thousand nine hundred two as found by this court in hearst in one and in her first into was that people were walking in and out of coverage your honor i think that the answer to the question of why the act covers somebody that's building a memory not a why it's a question are they covering people who are building repairing or replacing marinas or things that are similar to should we conclude based on what we read there that a person who is engaged in constructing repairing or replacing a marina or a structure that is similar to a marine is that person a covered harbor worker or not the answer to that question lies in the person's duties your honor as the supreme court has reminded us again and again and as this circuit has found the answer to the coverage question is one that is tied to the individual's duties if th person that's building a marina is on the water for part of this day and off the water for part of his day and that person is exactly the type of person and type of employee that the screen court wanted to avoid being subject to state workers