you some point on the way the first jones act point is this the district court entered summary judgment in this case about four months before the supreme court handed down of stewart decision and the stewart decision changes the jones emphasize at the outset is that the stewart case though it's limited on its facts to the vessel issue actually divulged each and every one of those arguments the stewart case held that a marine construction worker just like kevin surely employed just like the william f had a marine construction project with really identical to the one that taylor was performing in los angeles harbor on protected waters just like queensway bay could be a seaman and therefore  to class the cans of the much dredging the quite waters of potomac creek with a bold and skillful marriage to breast the angry with the atlantic but such and so far reaching are the principles of adult because that's exactly what the jones act does and that is the specifically to quote justice o'connor issued the temptation to create detailed and self executing chestnuts did hand down two quite frankly vegan and very broad requirements and those requirements i respect we s only more than ecumenical enough to embrace a gentleman like kevin sherrington but they are very rarely amenable to summary judgment and the district court decided it was compelled to enter summary judgment in this case conscientious reading of the case has to agree that it was lying in fact on both the unlike kevin shearing whom trainer butters admits satisfies the substantial and the ration requirement t caroll worked eighteen months really took its and during that time divided his employment between what the ninth circuit referred to as land based and sea based science well given that terminology the only c b s to sign it that showed up on the record was a simon to the barge but more than that it was clear that assignment though he spent ninety percent of his time aboard the bar during that time that son was only five weeks out of eighteen months and as such was well below the thirty percent requirement that the chandra's case handed what we have here is a gentleman who not only served aboard the the william f well it was fleeting back and forth which is something that the supreme court steward made quite clear was to be regarded as navigation but he served aboard it when it was  bad weather now there was a p apparation more thing and they are your honor and that's that's a very good point because the only issue which is at issue here from the jones actually in point is the substantial in nature requirement the supreme court has made it abundantly clear time and time and time again does not claim its job description that is important but its connection to the vessel and its connection to the vessel has nothing whatsoever with his duties it has to do with the nature of the  that he faces for example the supreme court has considered five jones act cases during a fifteen year period four of them it was reversed a summary judgment just like one below and remanded the case to the district court and one of them it a marine construction hand and in fact an operating engineer just like kevin jerry so it's obvious and none of those people by the way had coast guard papers and then those people were assigned from maritime unions know those people had duties that were traditionally later to see offered no evidence that he was on the barge while it was towed or otherwise endured the hazards at the sea that's the key distinction here kevin sharing just like the plaintiff in the lanch worked aboard the william f while it was towed in under way and therefore was subjected to the characteristic perils of a siemens work environment we may disagree about that but that's a question which only the jury can decide if i make the switch quickly to the downstream vessel or issue this is important because even if we have remanded should the jury ultimately conclude that mr sharon was not a seaman i still believe that he has a tort claim against taylor under section  years factual question is who is a understand it i don't know that the record is necessarily clear on that i think it one could certainly infer and you know i think one would have to infer that the float was owned by trailer brothers the float was placed there by the trailer brothers marine superintendent at the air and it was placed there slowly to provide access to the ve and which brings me to the very point i wanted to make the district court likened our vessel or case to a case involving an injury on a dock well you know one of there was no dock that's why there was an injury what we're talking about here the float and the platform depicted on page three fifty two of the actions and in fact the william f the vessel is case was anchored up to two hundred yards off shore and every day the crude have to get from the beach out to the to the vessel what we contend is that the turnover duty at a minimum requires the vessel owner to provide safe access to people who work aboard the vessel from the shoreline to the deck of the vessel we're not asking the owner to guarantee that the dock is good we're not asking you to guarantee that the trip from home down to the waterfront is safe but once you get to the water's edge which is exactly what we had here we say that the true over duty should at very least require the owner to give reasonably safe access for the water edge to the vessel now in this case mr sharon was unusual a doctor was literally injured knee deep in queensway bay trying to lift this this defective ramp back onto a big part defective painters pack the gangway back onto the float the judge fletcher just mentioned and that is the only way that they could get out to the bar now a judge or measure its rescue concluded like to make two points about that first of all the cases on which mistreats rescue were alive were the first circuits decision in morehead and the second circuit's decision in group that none of those cases neither one of those cases involve a breach of the turn of duty what they both involve is a breach either of what is known as the active control duty or the duty to intervene and in fact according to grieve at itself quote the application of a breach of the turnover duty would always seem to constitute negligence in capacity as vessel and render the ship liable whether the contracting operations were carried out by the end of in a contractor or by the same entity as owns the vessel so whereas here you are alleging as we are a breach of the turnover duty that can only be breached qua vessel more than that the evidence in this case show that the man who was responsible for providing access to the ramp into the barge was the marine superintendent mr a there there was also a landslide superintend with a wholly different area of responsibility but mr adair was not only the person who accepted the blame for coming up with this this gangway solution but who was produced as the thirty six most qualified person to describe why trailer permitted this gangway to remain in place for more than two and a half months even though the crew complained about it every day so when all is said and done i think that the the compels but at least allows us to go back to a jury in the event that jury finds that mr sharon is not a singer and place before them the question of whether or not the failure to respond to his complaints amounted to couple of points he made at the very outset because knowing mr hill's know as long as i've known him and in dealing with this issue as many times as i have what i've learned is he is an absolute master inciting half made it crystal clear that there was one issue only that they were addressing and that was vessel status whether or not i had a dredge construction barge a dredge is a vessel and the reason they what he didn't quote for you was the introduction that the supreme court put in this case the introduction leads the spite done precisely that and they talked about what the saylor court had said back in eight hundred ninety six well there were a tremendous number of changes in the definition of seaman status between eight hundred ninety six and the time of stewart court rendered its decision the most significant being the we lander in the shade says and it really is she andrus where we need to look in connection with this case because the issue there dealt with the issue here whether or not there was satisfaction of the itself in the wee lander case the court said it's a mixed question of fact and law and when the facts are undisputed essentially and the last clear of one possible interpretation summary judgments appropriate and that's what the ninth circuit has done on a number of occasions which we have cited in our brief the california public court has done it the first second fifth many circuits on appropriate cases appropriate axis this mixed question of fact and law can be decided on summary judgment and john pointed out that wait a minute the supreme court has reversed summary judgment on a number of occasions recently when they addressed the issue and that's true and the reason they did was not that there was a problem with the facts the problem was with the test itself so they what they've done through the five cases since one thousand nine hundred one is home the past so that they've jettison the requirement that there's aid to navigation shown on the health of the injured worker they have clarified what he the celebs and they have made clear in chandra's that with respect to the substantial connection issue you have to look at both the durational and the nature element so do you agree with opposing counsel that really the crux of this case is that nature piece of that absolutely there is just no question about it so that's that's everything else is satisfied that's where the argument is between the maritime workers don't become seamen because they happen just to be working aboard a barge when they're injured and seen then don't lose the protection of seamen status when they're working on shore we look at what their status  they specifically rejected justice stevens argument that any time maritime or peruse ever report of origin is injured automatically is considered to be a seaman that's not enough they made it clear that the goal was to separate between sea based maritime workers from a land base workers who only have a sporadic or transitory connection with us all and whose employment does not regularly expose them to the perils of the sea well and to that standard why isn't the factual material cited by opposing counsel sufficient to demonstrate circumstances of employment to determine whether he had a sufficient relation to the navigation of the assholes and the perils attendant there to whether the evidence was in this case is  that mr suring was dispatched by a construction union to do a construction job he did the same type of work aboard a platform which was anchored down at all times he was doing his task far there were three three examples where he was aboard when the barge was being towed but he was working at the time he was a mere passenger at that point in time because his duties when you look at the totality of the circumstances were precisely the same as those of mr cooper all and that is he was primarily there for one reason and one reason only and in fact moving over to see i don't believe that there was evidence as to whether or not that occurred the problem with control is you need to look back to the district court decision to get some of the facts more specifically because it was kind of a short circuit decision if you will but what was clear just to rule out the durational element or to mention that one time and that's to say look you got to look at both of these that's wh sure three times in over a month he was riding as a passenger as opposed to performing construction operations and he said that i will say i do recall from the supercross brawl district court decision that the court made it very clear that when you are working in protected harbors of the protective waters of pearl harbor just as when you're looking at working in the protected waters of long beach harbor that's not exposure to the perils of the sea so it's the sole issue here is on which you have concerns is whether or not three crane movements when the the barge is not actually anchored down over a course of a month is sufficient to raise a question of fact i go back to what the champers court said which is when you look at the totality of circumstances can you make a determination status based what this gentleman whose job was he was a crane operator working on a construction job doing pile driving who whose responsibility was to operate the crane the primary responsibility which was ignorant minute by mr tshering to pick up piles move them into position place then and hammer them into place her sights as well as the situation with mr cooper all they were from the same union they both fell from a gangway when the judge month when the tug moved it from one position to another to reposition it for purposes of pile driving he happened to be aboard that is not in our view the regular exposure to the perils of the city which creates and seaman by separating him from a land based worker i mean i would cite as well you know spears v with the california hell a court decided this issue and again same union in fact in this case it was precisely the same barge it was in the same harbor and mr shearing by coincidence was the crane operator who was involved when mr spears was injured and now you point you devote any time sharman absolutely i will turn to that now because i minor capacity somehow breached the dirty a duty when it turned the william f over to the construction job crew at the start of the job with the cases say is that to prove a about the william f which caused this accident pertinence that is exactly the test that's exactly right it is something that is physically connected with or are you part of the vessel equipment an example as far as you can get of american for the greek and i don't know that's right and i was new say the one example that that is crystal clear here is that if you've got a barge height up to a dock and the usa vessel owner have an obligation to provide to a seaman reasonably safe access and to longshoremen generally well as well that if scindia situation we have to consider this a dual capacity case because that's what it is and we have to do this analysis of whether or not the vessel owning employer was wearing it's th it's construction employer hat and one of the things you can do according to the cases is to say ok let's take a step back and think what what had he was wearing the district court essentially adopted this this approach if we assume that mister suring had been employed by  different entity than own the william f if that and worker was hurt on land or trying to access a floating dark and indeed that's exactly what it was if he was hurt trying to get to that floating dock the vessel wouldn't have any liability they have no responsibility with respect that what they have responsibility and i'm sorry i'm running out of time with their responsibility with respect to access with the skill you got to go from the from the ramp down to the water and when you go to go from the water a vessel that's part of access well all certainly that's all part of access but but take for example a vessel that's six miles out at sea and they hire a lecturer a company that provides marine electricians and say you get it out there you  amount there and once you get them out there then we'll get them up on to the vessel by means of the appurtenance the gangway that's perfectly reasonable in fact that's the way it happens and so what what judges arrest the saying is  you can't have an unlimited responsibility on behalf of a vessel owner to ensure that from the time an employer and employee of a different employer leaves the home that morning to drive to the work site to climb on to us again not get into that but just tell me who owned and controlled the flow or control of it was a trailer brothers piece of equipment there's no question about it absolutely did have responsibility to make sure that the access to that that flow was safe in its capacity as the gentleman's employer well but the o to make a determination whether or not the alleged negligent act was committed by the vessel owning employer acting in its capacity as a vessel on or acting in this capacity an employer and what i'm saying is there are no cases otherwise in which a third party employing a gentleman like this that employee would be able to say oh i can sue the vessel owner because it didn't properly provide me safe access from the dock to a boarding float where i was going to get on to my third party employers a lookout for the tugboat operator during the toes and to drop the taker at the end of which he was there is a crew member that's that is absolutely clear from the record third i want to address the suggestion that work in long beach harbor is not expose  quickly and finally to the night of five b points again because this is a breach of the turnover duty we don't have to get into the schizophrenia but just to indulge mr wouldn't imagine a situation where a vessel