but could you speak up just a little bit i'm having trouble hearing you certainly thanks i'll pick up the line the open issue is whether the opening obvious nature of a dangerous condition is a complete bar not only to a failure to warn claim but also to a claim for negligent turnover of a vessel with respect to the saying open an obvious danger this court in lemon versus bank lines and i say this court it was a it was a  circuit case lemon vs bank lines said however in light of cynthia v dillo sent those considerations to the stevedores awareness of and degree of control over a dangerous situation or irrelevant when the existence of a dangerous condition is attributable to the negligence of the ship owner the court went on to say the supreme court clearly established that the ability of a longshoreman to recover cannot turn on who was in the best position to recognize and remedy a dangerous condition when that condition was created by a vessel owner who knew or should have known of its existence prior to the stevedores operations and that's what we have in this case which is a failure of the vessel to have a railing or as it's sometimes been called in the record a rope fence available on in place to preclude an injury such as what occurred to mr troutman who fell six or eight feet below as a result of that railing not being there now with this this court and lemon was referring to there was footnote twenty two dollars of in part one of twenty two and cynthia vs devo santos where the supreme court said we agree with the court of appeals that the shipowner may not defend on the ground that santos should have refused to continue working in face of an obviously dangerous when church which is employer of seattle was continuing to use the district court erred in ruling otherwise since the defense of assumption of risk is unavailable and section nine o five the litigation that it's our position that the district court after finding that the lack of that railing was open and obvious and thus holding that the ship had not breached the duty to warn of latent defects no longer good law in light of how i would tell you that west law does not show that it's been overruled but even if it had been overruled by the th circuit and i'm and i want to address christie because i think that the purpose the analysis is wrong and based upon maritime just just quickly i'm sorry this is the danger i suppose of you having to do that telephonically but i just jumped on my own westlaw to check it out and in fact women does have a big red flag next to it showing that it's been abrogated all right it doesn't show in my printout version but in acknowledge that hallett addressed only the duty to warn it then went on to say that given its clear language strictly limiting the vessels turnover duty to warn to leyton defects and dangers it makes no sense to say that the vessel is nevertheless liable to the longshoreman for breach of the duty to turn over a safe ship based on an obvious defect against which it had no duty to warn well but that under that analysis disregards the distinct purposes between the duty to warn and a with the purpose of a negligent maintenance claim now in that case it was negligent maintenance because it was a passenger on a cruise line in this case it's negligent turnover because we have a longshoreman and understand there are two distinct turnover duties once the  simply because there's no duty to warn unless it's a latent condition does not mean that you can just turn it over and say well we you know then there'd be no turnover duty at all because you would be saying hey if it's a peyton's dangerous condition we never be a case where the vessel can be held liable for turning it over no matter how dangerous the condition is legally i would suggest the curtsey analysis is incorrect i would direct the court talking about tort liability to somebody on a cruise ship here we're talking specific statute my understanding the supreme court indicated that not that that is the only obvious like defects of the turn over duty at its heart is cargo operations with reasonable safety and what i thought was the problem for you here is it's one thing if you've got somebody a high wire act where you're looking down and it looks pretty obvious that you're if you fall it's going to be really bad and that would seem like it's obvious but your point is you know we can't operate that way because it's so dangerous but my understanding in this case was that the typical way these ships were loaded would you lug from the bottom and when you load from the bottom and then love the top at the end that there was no danger because that abyss that hole had been covered and that was the typical standard way to do it in this case the supervisor not the ship but the supervisor of your of your client made a his supervisor to last the trailers and the st possibilty of the vessel or the responsibility of the stevedoring operation well so and this gets into somewhat the the duty to intervene which is they don't have a duty to intervene except under very circum struck scribed conditions and we don't have a duty to intervene claim here anymore that was that was some readout and we're not claiming to have a duty to intervene under the circumstances but if you if you if the vessel owner doesn't typically have  duty to intervene here and in fact an affidavit from the vessel owner said well we weren't nobody from our ship was there at that moment well then that puts all the more need for the vessel owner to turn over the vessel vessels property here that was their safety netting that was not provided and i would point out that cynthia on the same page that judge carnes just quoted from the court went to say the ship owner thus has a duty with respect to the condition of the shi it recognised that so they are using essentially common laws we don't have a statutory rigid statutory definition that has to be followed they apply essentially common law principles and you know when they're indicating that it's not a situation where you can go to the old rule of assumption of risk or contributory negligence on the part of the longshoremen or the stevedore to say that that completely absolves the vessel owner of the think there's a question of fact here as to whether him exercising ordinary care he's never left could not properly perform his functions and you can't put it on him to say hey you know employer go get me these this railing because and sandia paragraph twenty two i mean rather footnote twenty two said you know you can't utilize assumption of the risk as a defense all these go to comparative negligence and  please the court robert blank on behalf of the after the the issue that's been presented in this case for purposes of appeal is that the lower court either misapplied the law or failed to take into account evidence that was presented that would raise a material issue of fact in dispute in preclude summary judgment it's a position of the apple eve that the court applied the applicable law as required by scind plaintiff's burden to provide evidence not that of hazard existed but that the plaintiffs and experience longshoreman would not by the exercise or reasonable care be able to carry on cargo operations with reasonable safety to himself in their opposition papers was an affidavit by the plaintiffs which did not suit nor discuss the open obvious nature of the condition nor even address the issue of his ability to perform his job of lashing cargo at a later time after cargo was loaded in base thirty two dollars and any concerns of his falling would have been wrecked remedied as the scrub supervisor mr president deposition and found by the trial court and its opinion the plaintiff failed in its opposition to defend its motion to dismiss to provide the court with any evidence to support that there existed a material fact in dispute as to the essential element as set forth by  this vessel was turned over to the vessel to the stevedores at the time its arrival in port for discharge at that time and the vessel was completely covered in cargo and as pointed out by this court the fear of any falling didn't exist because there was cargo that covered the entire it was only after all the cargo was removed and the decision was made by the  stevedores to load cargo in what's been referred to as bait twenty eight dollars that the possibility of a longshoreman working on the platform which has been described  which is which then requires no duty to warn and as pointed out by the court and if the can be in terms of the requirement have waited until carville was then loaded and its traditional place and day thirty two dollars at which point he would be able to safely base thirty two and twenty eight without any fear whatsoever of following this activity all heard during the course of doing operations the only issue before this court is whether or not the the  defendant reached their turn over duty and according to the teachings of cynthia the there was no duty to warn because it was an open obvious condition and and additionally there were other options available to the longshoremen in terms of waiting to be loaded in the lower decks before he commenced lashing operations which would have avoided this hazard altogether hazard which was created by your selves and for which the teachings of skin the scindia are quite clear does not fall to the vessel owner as a result of the rebuttal i don't know if you can hear in the background but there's an alarm going off my building but it does that from time to time so i'm not worried that there isn't actually any any concern but i apologize if you can hear that in terms of  page seven of eleven which is page thirty six of his deposition and in paragraph seven and eight of his affidavit he stated that they regularly turned it over without that equipment and that there was no other safety generally applied this except when where the dangerous condition existed in the ship's equipment or was otherwise created by the ship's owner through its negligence that's what we have here the dangerous condition existed and the failure of the ship to have the proper equipment there versus the decision in courtesy because it permits the nd turnover duty to exist and be analyzed separately as it should be in the same fashion i would suggest as was analyzed last week and carol versus carnival get in under different circumstances but roughly the same type of essentially common law negligence principles at play and that under you and allies is under comparative negligence and under that circumstance the court i think did overlook mr trenton's testimony and this case should be reversed and remanded for the court for either a trial for the court to reconsider the motion