[00:00:08] Speaker 01:
Good morning.

[00:00:10] Speaker 01:
Welcome to Alaska.

[00:00:11] Speaker 01:
We appreciate you coming up here.

[00:00:14] Speaker 01:
It's a treat for us.

[00:00:15] Speaker 01:
And as someone who doesn't visit Anchorage very often, because we call Anchorage the closest big city to Alaska, I'm from Juneau.

[00:00:27] Speaker 01:
flew up here with flooding going on right now, some sort of tsunami that happened down at the end of a fjord with a hundred foot wave of water, a lot of crazy things going on.

[00:00:39] Speaker 01:
My family's okay, but a lot of friends and clients are packing sandbags as we speak.

[00:00:46] Speaker 01:
This case involves a fundamental question about vessel liability under the Longshoremen Harbor Workers Compensation Act.

[00:00:53] Speaker 01:
Can a vessel escape the turnover and active control duties

[00:00:57] Speaker 01:
by claiming stevedores assume all risk of icy conditions, while simultaneously retaining exclusive control over ice abatement.

[00:01:07] Speaker 01:
The District Court's decisions rest on a foundation of contradictory evidence and legal error that requires reversal.

[00:01:14] Speaker 01:
Now that, our arguments are stated in the briefs, and I don't want to repeat those, but Justice Owens, it's justice, right?

[00:01:21] Speaker 01:
I say justice or judges?

[00:01:22] Speaker 03:
Judge.

[00:01:22] Speaker 01:
Judge, Judge Owens.

[00:01:24] Speaker 01:
You asked about Judge Kindred.

[00:01:26] Speaker 01:
And I want to just be upfront and say I'm here because of concerns with the way this decision was rendered and with his impartiality and fairness in the way he applied the law.

[00:01:41] Speaker 01:
This is a case where, and I have no complaints about opposing counsel.

[00:01:47] Speaker 01:
They were absolutely professional all the way along.

[00:01:50] Speaker 01:
I was happy with the trial evidence when we finished, with the exception that Judge Kindred would not let me cross-examine the key witness, Gomera, as to his .

[00:02:01] Speaker 01:
.

[00:02:01] Speaker 00:
.

[00:02:01] Speaker 00:
That's not an issue that you've raised on appeal, however, as I read your brief.

[00:02:07] Speaker 01:
It's not an issue because it's just part of the story that happened at the trial.

[00:02:13] Speaker 04:
Can I ask you a specific question to focus on the issues?

[00:02:17] Speaker 04:
You're claiming there was no turnover, correct?

[00:02:20] Speaker 04:
Yes.

[00:02:21] Speaker 04:
Okay.

[00:02:22] Speaker 04:
So the problem is, as I understand it, I mean, there's always going to be some ice or, well,

[00:02:28] Speaker 04:
I'm not entirely sure I understand the difference between slippery conditions and ice, but there's always going to be either slippery conditions or ice when this is being unloaded at midnight or 3 a.m., in this case, or loaded, packed up.

[00:02:44] Speaker 04:
Under your theory there would never be a turnover and that just seems pretty dramatic because you would say as I understand it the fact that there was ever the possibility of ice and that they retained Responsibility for taking away the ice prevents turnover.

[00:03:02] Speaker 01:
So there would never be any turnover judge I don't think that's the case at all they could turn over the hold as it is and say holds icy and

[00:03:12] Speaker 01:
Murphy, the stevedore owner of the stevedoring company, in his declaration said, he said, we are responsible for baiting the ice.

[00:03:22] Speaker 04:
That's what he said under oath.

[00:03:31] Speaker 04:
Judge Kindred sort of pointed this out, that you were conflating the two arguments.

[00:03:36] Speaker 04:
I mean, the act of control, there's a separate question about what constitutes act of control, and I don't think the Ninth Circuit's spoken directly on that, but other circuits have, and they've said it has to be more than creating a plan for where you pack this stuff, and it has to be more than just de-icing.

[00:03:56] Speaker 04:
It has to be actual control over the process of how the loading and unloading happens.

[00:04:03] Speaker 01:
Your Honor, the key to, I think, this case is ER 103.

[00:04:11] Speaker 01:
And ER 103 is a document that was not initially produced in disclosures, but we said there must be some ship's log tracking what happened here.

[00:04:20] Speaker 01:
This document came to us in Korean.

[00:04:23] Speaker 01:
And fortunately, since my wife is from Seoul, I could get an informal translation.

[00:04:28] Speaker 01:
And it confirms something, which is exactly what Mr. Nystrom had said.

[00:04:32] Speaker 04:
Was this presented in trial?

[00:04:34] Speaker 01:
Yes, over and over again.

[00:04:36] Speaker 04:
Including the translation?

[00:04:38] Speaker 01:
Yes.

[00:04:38] Speaker 01:
This is the translated document here.

[00:04:42] Speaker 01:
And this translated document, which is a ship's record produced

[00:04:46] Speaker 01:
after the event where the ship's captain was explaining what happened, said two important things.

[00:04:53] Speaker 01:
It said one, that the decks, it was slippery or icy, and it said that the crew members were actively abating, acting in de-icing at the time this occurred, and four crew members were there and saw Mr. Nystrom fall.

[00:05:09] Speaker 01:
I'm not sure there's any dispute that well there was there were there was dispute.

[00:05:14] Speaker 01:
Mr. Gamara said they there were not four crew members there He said they were not abating ice He said that was not occurring at all, but this is what the ship said This is what captain the captain and first officer both confirmed in their depositions, which I took in trans you know with translators Where does that?

[00:05:34] Speaker 04:
where does that cut?

[00:05:35] Speaker 04:
Because how does that relate to the turnover issue?

[00:05:39] Speaker 01:
Well, I think it relates to the turnover that if you assume all responsibility for abating a condition, a dangerous condition, which is you're not doing it unless you think it's a problem, then... I don't understand turnover.

[00:05:55] Speaker 04:
Educate me.

[00:05:56] Speaker 04:
But I don't understand turnover to be a partial issue by issue

[00:06:02] Speaker 04:
process.

[00:06:02] Speaker 04:
There is a turnover where he says, OK, we're gathering everyone together.

[00:06:07] Speaker 04:
This is our ship.

[00:06:09] Speaker 04:
You are now responsible for the loading and unloading.

[00:06:15] Speaker 04:
And he said, there's going to be icy conditions.

[00:06:18] Speaker 04:
Everybody knows there's going to be icy conditions.

[00:06:24] Speaker 01:
Your honor, the turnover requires that you turn over the responsibility for the hold to the crew.

[00:06:31] Speaker 04:
Exactly.

[00:06:31] Speaker 01:
But they didn't.

[00:06:33] Speaker 01:
They maintained and retained exclusive control for abating the ice.

[00:06:37] Speaker 00:
Had they not done that, I don't think... Active control claim then?

[00:06:40] Speaker 00:
Excuse me?

[00:06:42] Speaker 00:
Is that your active control claim?

[00:06:45] Speaker 01:
I mean, I don't think it's easy to separate those out.

[00:06:51] Speaker 01:
But everyone testified.

[00:06:53] Speaker 01:
We expected to go to trial and have Murphy testify again that it was the stevedores who retained control of ICE abatement.

[00:07:01] Speaker 01:
And at trial for the first time, he totally reversed himself.

[00:07:05] Speaker 01:
And it was, I think, a defense thing.

[00:07:07] Speaker 01:
They just suddenly said, we know we can't get past this document.

[00:07:11] Speaker 01:
We know we can't get past the captain and first officer statements.

[00:07:14] Speaker 01:
So we'll say, yes, the vessel retains complete control.

[00:07:19] Speaker 01:
And that's what they testified to.

[00:07:21] Speaker 01:
They said, the vessel retains complete control for abating ice.

[00:07:25] Speaker 01:
Either ice is a dangerous condition or it's not.

[00:07:27] Speaker 01:
The vessel doesn't need to abate it.

[00:07:29] Speaker 00:
The district court, I think, found that there wasn't ice in the hold.

[00:07:35] Speaker 01:
The district court did find that, which is inconsistent with this exact exhibit.

[00:07:43] Speaker 00:
So is part of your argument then that that was a clearly erroneous finding?

[00:07:51] Speaker 01:
It was when the district, what happened is, and the problem with this, his decision, is Justice Kindred could have taken exhibit ER-103.

[00:08:02] Speaker 01:
He could have taken the statements, the deposition testimony, which was admitted.

[00:08:06] Speaker 01:
This was admitted by stipulation for all purposes.

[00:08:09] Speaker 01:
It's evidence that the captain and first officer's depositions were admitted because they said they were consistent with this.

[00:08:18] Speaker 01:
And Judge Kindred could have, in some fashion, parsed through these and said, I'm going to side to just believe the one foreman for the stevedore gang and a weatherman.

[00:08:31] Speaker 01:
But the findings of fact produced that he adopted almost in whole cloth didn't even mention this document.

[00:08:39] Speaker 01:
Doesn't admit this key admission that they were abating the ice at the time Mr. Neistrom fell.

[00:08:46] Speaker 01:
And it is a difference because they could say, it's your responsibility.

[00:08:51] Speaker 01:
As Murphy had said initially in his declaration, we take care of that.

[00:08:55] Speaker 01:
It's our responsibility.

[00:08:57] Speaker 01:
There's turnover.

[00:08:59] Speaker 01:
But if you never turn over that responsibility and Captain and First Officer said, we always retain control, they had two crews working at the time abating ice, then they haven't turned over control.

[00:09:12] Speaker 01:
You can't turn over part, you can't say,

[00:09:15] Speaker 01:
You've got it, but we're going to be abating ice.

[00:09:18] Speaker 01:
And they weren't just abating ice.

[00:09:19] Speaker 01:
They had videos and pictures of them using mallets to break the ice and remove it.

[00:09:25] Speaker 01:
And that was occurring simultaneously with this crew, 15 or so big guys trying to pack tons and tons and tons of fish.

[00:09:36] Speaker 01:
And so that was the issue.

[00:09:39] Speaker 01:
And Judge Kindred's adoption and whole cloth

[00:09:44] Speaker 01:
of the arguments by defense made no sense given this evidence because it didn't consider it and the defense can make any argument they want.

[00:09:55] Speaker 01:
But sort of the part of the judge to go, let me weigh the evidence.

[00:09:59] Speaker 01:
There was none because he had just adopted it.

[00:10:01] Speaker 01:
Further, he adopted the argument the defense made that there's an assumption of risk of icy conditions when you work as a longshoreman.

[00:10:11] Speaker 01:
And in fact, that's a comparative fault argument.

[00:10:15] Speaker 01:
You're comparatively fault because you kept working when these things were done.

[00:10:19] Speaker 01:
The law doesn't allow that.

[00:10:21] Speaker 01:
That is not an argument you can make, especially when the vessel is retaining exclusive control to abate the ice.

[00:10:30] Speaker 01:
I can see Judge Graver is going to ask me a question.

[00:10:32] Speaker 00:
No.

[00:10:33] Speaker 01:
OK.

[00:10:35] Speaker 01:
So we finished the evidence.

[00:10:38] Speaker 01:
Trial and I and I was I thought we have a good trial here Murphy has said things I never expected him to say that in fact They didn't have control over this they never did this they had never pulled a crew from any vessel ever He could not recall ever doing that except once it was raining hard and the product was getting wet So there was they're gonna do whatever they're required to do to move the product once the vessel assumes control to make those to abate the ice and

[00:11:07] Speaker 01:
It's either a condition that requires abatement or not.

[00:11:10] Speaker 01:
They didn't have to do it, but once they did it, they're responsible.

[00:11:13] Speaker 01:
And having Korean family and knowing how hard my family and others work, they had the longshoremen doing the work trying to get that fish packed, and they had the crew doing the simultaneous task of trying to clear the ice off the floor.

[00:11:29] Speaker 01:
They're not doing that for no reason.

[00:11:32] Speaker 01:
It's not a periodic task.

[00:11:33] Speaker 01:
They're doing it because it allows the crew to work more safely.

[00:11:38] Speaker 01:
And once they do that, they have the obligation to do that in a non-negligent fashion.

[00:11:43] Speaker 01:
And it was a Judge Kindred's wholesale adoption of these arguments, including the sort of assumption of the risk argument, which is not the law as I understand it, which

[00:11:56] Speaker 01:
for me was clear error, and it made no sense.

[00:12:00] Speaker 01:
And I've been trying cases almost 45 years.

[00:12:03] Speaker 01:
I'm licensed in practice in federal courts throughout California, Washington, Hawaii, and Alaska.

[00:12:09] Speaker 01:
I'm not an appellate lawyer.

[00:12:11] Speaker 01:
I think you can probably tell that.

[00:12:15] Speaker 01:
But it's very seldom that I would ever challenge a trial court's decision making regarding a case.

[00:12:21] Speaker 01:
And I think that a different judge could have gone through these facts

[00:12:25] Speaker 01:
and produced a decision that would have been against us.

[00:12:30] Speaker 01:
But I do not think that the wholesale adoption of the defenses theories, which relied on this contradictory, primarily relied on the contradictory statements of Murphy and ignored the 103, this relatively contemporaneous document saying that the

[00:12:50] Speaker 01:
crew members were actively de-icing at the time this occurred, and four of them were present when Nystrom fell, and they were de-icing because it was icy, that that was something that showed the vessel either had never turned over, which I don't think if you always hold on to that responsibility, I don't think you can say, well, we turned it over, because you haven't.

[00:13:16] Speaker 01:
Or alternatively, they were exercising active control.

[00:13:20] Speaker 01:
That's all I have.

[00:13:21] Speaker 01:
Thank you.

[00:13:21] Speaker 03:
So we'll give you two minutes for rebuttal.

[00:13:23] Speaker 01:
Thank you.

[00:13:35] Speaker 02:
Good morning and may it please the court.

[00:13:37] Speaker 02:
Lee Baxter on behalf of the respondents Connemarine and NOK Company Limited.

[00:13:42] Speaker 02:
The judgment of the district court should be affirmed because the finding of fact that the slippery floor of the cargo hold in an open cargo hatch

[00:13:50] Speaker 02:
in Dutch Harbor was a condition that stevedores expect and routinely encounter and safely navigate was not correct.

[00:13:57] Speaker 00:
Counsel, that's actually the source of my question.

[00:14:01] Speaker 00:
The statute, as I understand it, Section 905A, specifies that assumption of the risk is not an appropriate defense.

[00:14:13] Speaker 00:
And that's what this sounds like to me.

[00:14:16] Speaker 00:
You assume the risk that it's going to be slippery.

[00:14:19] Speaker 00:
That's your problem.

[00:14:21] Speaker 00:
Why is that a permissible or irrelevant finding in the face of the statutory bar on assumption of the risk?

[00:14:30] Speaker 02:
Your Honor, a few comments.

[00:14:32] Speaker 02:
First of all, 905A deals with first-party claims of Stevedore's – Longshoremen claims under the no-fault workers' compensation scheme against their Stevedore employers.

[00:14:42] Speaker 02:
That is the section that speaks of – that there is no assumption of the risk defense.

[00:14:46] Speaker 02:
Second, we are not making an assumption of the risk defense.

[00:14:49] Speaker 02:
We're making the – we made the argument and we proved at trial

[00:14:55] Speaker 02:
what Congress has set out under the Longshore Act, which incorporates long-time historical understandings and obligations between stevedores and vessels.

[00:15:06] Speaker 02:
Specifically, what that is, is that vessels are entitled to rely on stevedores to supply expert and experienced longshoremen who know how to navigate typical, reasonable, manageable hazards.

[00:15:17] Speaker 02:
And that's exactly what we have here at that hazard.

[00:15:19] Speaker 00:
That was a helpful answer.

[00:15:21] Speaker 00:
Thank you.

[00:15:22] Speaker 00:
But the other question that I have has to do with the way the case evolved.

[00:15:28] Speaker 00:
There was a partial summary judgment, as I understand it, on the turnover theory.

[00:15:33] Speaker 00:
Am I right about that?

[00:15:34] Speaker 00:
Before the rest of the trial took place.

[00:15:38] Speaker 00:
And when this conflicting evidence came up,

[00:15:46] Speaker 00:
Why didn't the district court reopen the question of turnover or did it and I'm missing something?

[00:15:54] Speaker 02:
Your Honor, we went all the way through trial with this matter, so all the evidence came in regarding everything from the longshoremen traveling from their from shore over to climb the Jacobs Ladder onto the ship, going into the hold, performing their stowage activities.

[00:16:11] Speaker 02:
So all of that evidence came in.

[00:16:12] Speaker 04:
What about, it was exhibit 103.

[00:16:15] Speaker 04:
Yes.

[00:16:16] Speaker 04:
Hold on.

[00:16:17] Speaker 04:
Was it in the record on this partial summary judgment ruling on the turnover issue?

[00:16:23] Speaker 02:
It was, Your Honor, but it implicated the active duty control for several reasons.

[00:16:30] Speaker 02:
Namely, the turnover duty implicates and provides what obligations a vessel owes to the longshoreman when cargo operations commence.

[00:16:45] Speaker 02:
The turnover duty and the active duty control are actually very easy to distinguish based on my read of the law.

[00:16:50] Speaker 02:
the Supreme Court and this Court's decision.

[00:16:52] Speaker 02:
The turnover duty provides what the vessel must provide, what shape the vessel must be in when cargo operations begin.

[00:17:02] Speaker 02:
We know from Howlett and we know from this Court's decision in Bjarnson that the turnover duty is a temporally limited one.

[00:17:10] Speaker 02:
If the condition existed at the time that the longshoremen started stowage, then it can be a turnover duty violation.

[00:17:19] Speaker 02:
If the condition arose after the cargo operations began, then at most we're in active duty land.

[00:17:25] Speaker 00:
Okay, but then why didn't

[00:17:30] Speaker 00:
You sort of said that that exhibit pertained only to the latter and not to turnover.

[00:17:36] Speaker 00:
Why is that?

[00:17:38] Speaker 02:
Because even under that exhibit, the captain reported in that, I would quibble that it was a somewhat contemporaneous record.

[00:17:46] Speaker 02:
It was written six weeks after the incident.

[00:17:48] Speaker 02:
This incident happened on April 30th.

[00:17:50] Speaker 02:
That was written in June.

[00:17:53] Speaker 02:
The company testified that he wrote that for his company.

[00:17:56] Speaker 02:
But it reported that the accident happened long after cargo operations had began.

[00:18:01] Speaker 02:
It reported that the slip and fall had occurred at 10 a.m.

[00:18:05] Speaker 02:
In reality, we found out at trial and during deposition testimony that the slip and fall happened at 3 a.m.

[00:18:10] Speaker 02:
But the slip and fall happened four to five hours after cargo operations began.

[00:18:14] Speaker 02:
So Judge Kindred was correct in granting summary judgment, because there was no evidence in the record the plaintiff put forward, no evidence, and all the evidence was... There was ice at the time of the turnover.

[00:18:25] Speaker 04:
Correct.

[00:18:25] Speaker 04:
Is that what would have made the difference?

[00:18:27] Speaker 04:
If Exhibit 103 had said, hey, I actually saw this, there was actually ice caked at the time of turnover, the turnover would not have...

[00:18:39] Speaker 04:
happened?

[00:18:40] Speaker 02:
I would not phrase it that way.

[00:18:41] Speaker 02:
The turnover duty is what obligations the vessel owes at the time cargo operations begin.

[00:18:46] Speaker 02:
It's not that there's not a breach of the turnover duty if they don't hand over the ship.

[00:18:51] Speaker 02:
It's a breach of a turnover duty if the cargo operations begin and there's an unreasonable hazard present on the ship.

[00:18:59] Speaker 04:
How do we determine what's unreasonable when it comes to ICE?

[00:19:02] Speaker 04:
Because we have statements that you've cited, which is they're used to working in

[00:19:08] Speaker 04:
I don't know if you call them dangerous, but slippery conditions.

[00:19:11] Speaker 04:
That's common.

[00:19:14] Speaker 04:
That's what's going to happen when you're on an icy ship at that time of day.

[00:19:19] Speaker 04:
So is your position that there can never be a breach of the turnover

[00:19:26] Speaker 02:
a duty if there's a slip and fall on ICE?

[00:19:30] Speaker 02:
No, Your Honor.

[00:19:31] Speaker 02:
First of all, the findings of fact are clear.

[00:19:33] Speaker 02:
There was not ICE that could be broken up and removed.

[00:19:36] Speaker 02:
That's a paragraph 29 of the court's findings of fact.

[00:19:39] Speaker 04:
What about 103 then?

[00:19:40] Speaker 04:
Because your position is 103.

[00:19:42] Speaker 04:
I mean, 103 seems to say they were breaking ICE.

[00:19:45] Speaker 02:
103, there's a lot of problems with 103.

[00:19:47] Speaker 02:
103, the court did not credit 103 for several good reasons.

[00:19:50] Speaker 02:
It was wrong about fundamental facts of what happened.

[00:19:53] Speaker 02:
It was not a contemporaneous record.

[00:19:55] Speaker 02:
It was a, as the district court recognized at supplemental exorbitant record, it is a, at supplemental exorbitant record 32 and 33, it was a waterfall of hearsay.

[00:20:06] Speaker 02:
It was the captain reporting what he had heard from the chief first officer who also did not witness the slip and fall.

[00:20:12] Speaker 02:
He had heard, he had his report from the boson, the vessels boson who takes care of the cargo.

[00:20:18] Speaker 02:
There was a waterfall of hearsay in that report.

[00:20:21] Speaker 02:
It was wrong about the time of the accident.

[00:20:23] Speaker 02:
It was wrong about the accident itself that reports that Mr. Nysham hurt his right shoulder.

[00:20:29] Speaker 02:
It was actually his left shoulder.

[00:20:30] Speaker 02:
It was wrong about

[00:20:34] Speaker 02:
Several other things that escape me right now, but it was 103.

[00:20:38] Speaker 02:
There's a ton of problems with 103.

[00:20:40] Speaker 02:
We made those arguments to the district court, and it's no surprise to the district court.

[00:20:43] Speaker 04:
And we would review that for clear error.

[00:20:46] Speaker 04:
I mean, that would be a trial.

[00:20:47] Speaker 04:
That's a trial problem, potentially, that we would give deference to the district court on.

[00:20:53] Speaker 02:
Absolutely, Your Honor.

[00:20:55] Speaker 02:
The cases are clear that the factual findings were reviewed for clear error.

[00:20:58] Speaker 02:
After trial and hearing the testimony, another problem with 103 is it's very generic.

[00:21:03] Speaker 02:
It was not subject to a cross-examination.

[00:21:07] Speaker 04:
Thank you for addressing 103, but I just am trying to get a conceptualization of where a duty ever does arise.

[00:21:15] Speaker 04:
Because on the one hand, the plaintiff seems to be arguing, well, if there's any problem with slippery conditions or ice, you're going to be liable.

[00:21:29] Speaker 04:
You violated your turnover duty.

[00:21:33] Speaker 04:
And then on the other hand, you seem to be saying, well, slippery conditions are just part of it.

[00:21:38] Speaker 04:
And so that almost Lee.

[00:21:40] Speaker 04:
I mean, at what point would you be live if there was ice as opposed to slippery conditions?

[00:21:46] Speaker 04:
You could have become liable.

[00:21:47] Speaker 02:
We could have if they were not if they existed at the time of term, if they existed at the time the cargo operations began.

[00:21:55] Speaker 02:
and the testimony from experienced and experts longshoremen were that those conditions were not expected and not routinely navigated.

[00:22:04] Speaker 04:
Is that the problem here then?

[00:22:05] Speaker 04:
Because as I understand it, you had an expert saying this is all normal, nothing was out of the ordinary here, and the plaintiff never put in an opposite expert.

[00:22:16] Speaker 04:
Am I correct about that fact?

[00:22:18] Speaker 02:
Yes, but it also can be just longshoremen.

[00:22:21] Speaker 02:
We know from the cases

[00:22:22] Speaker 02:
Bjarnson is a case from this court, Brownstone versus Botello Shipping Company, where the court looked at testimony from a longshoreman who had operated in that area for a long time doing that work.

[00:22:32] Speaker 02:
And the testimony was, we know how to ask the ship to correct issues.

[00:22:38] Speaker 02:
And so we know to do that.

[00:22:40] Speaker 02:
We didn't do that here.

[00:22:42] Speaker 02:
And so that was not, the vessel was not liable for an unreasonable hazard.

[00:22:46] Speaker 02:
Another case that I think is really helpful is out of the Eastern District of New York that we cite as the Giganti decision.

[00:22:53] Speaker 02:
There again, the court turned to the testimony of expert and experienced stevedores to know what hazards are unreasonably dangerous.

[00:23:01] Speaker 02:
And more specifically, they're unreasonably dangerous if an expert in experience, Steve Vador, would not routinely encounter them and be able to safely handle them.

[00:23:12] Speaker 04:
And maybe this reflects some of Judge Graber's questions as well.

[00:23:16] Speaker 04:
Part of the problem why this is not intuitive necessarily on the turnover issue is these are generally issues of fact that would go to trial.

[00:23:27] Speaker 04:
And so I'm trying to understand why that was kicked out on summary judgment.

[00:23:31] Speaker 02:
Because there was no evidence of an unreasonable condition at the time cargo operations began.

[00:23:41] Speaker 02:
What went to trial was, OK, cargo operations have been underway for several hours, and then Mr. Nystrom slips and falls.

[00:23:48] Speaker 02:
At most, that's an active control duty issue.

[00:23:51] Speaker 02:
because if you never turn over the ship, it's not a violation of the turnover duty if the vessel keeps control of the entire ship.

[00:23:57] Speaker 02:
That's not a per se violation of the turnover duty.

[00:24:00] Speaker 02:
You're remaining in active control.

[00:24:04] Speaker 04:
Are there turnover duty?

[00:24:06] Speaker 04:
They seem to be arguing, I'm trying to parse out their argument, that turnover is sort of parsed piecemeal.

[00:24:13] Speaker 04:
And so I guess giving them the best benefit of the doubt, they're saying, well, everything else was turned over,

[00:24:19] Speaker 04:
The ice was never turned over because the owner of the ship retained responsibility, in his view, to de-ice it and break the ice.

[00:24:30] Speaker 02:
I feel compelled to tell you that the court rejected that testimony as incredible.

[00:24:36] Speaker 02:
that it rejected as incredible because Mr. Neistrom was so wrong about every pertinent fact of where the slip and fall happened, who was present.

[00:24:47] Speaker 02:
Well, hold on.

[00:24:48] Speaker 02:
Back up.

[00:24:51] Speaker 04:
Is it true that the ship owner retained a duty to break up the ice?

[00:24:58] Speaker 04:
No.

[00:24:59] Speaker 04:
OK.

[00:25:00] Speaker 04:
That was my question.

[00:25:01] Speaker 04:
Because that seems to be what he's relying on is,

[00:25:05] Speaker 04:
You said that you were going to take care of it.

[00:25:07] Speaker 04:
I understand you've pointed out the problems with 103, but your point is turnover was complete.

[00:25:12] Speaker 04:
And if there were ICE, it would have been the stevedore's duty to break that up.

[00:25:17] Speaker 02:
That is the uncontested testimony from both the president of the stevedoring company, Andrew Murphy, and from the longshoreman gang boss, Joel Gomera.

[00:25:27] Speaker 02:
that 100% of the responsibility for dealing, making sure the floors were safe within the cargo hold was the responsibility of the longshoreman and the stevedore, not the vessel.

[00:25:42] Speaker 00:
Do you agree or disagree with the statement that Murphy's testimony differed from his declaration that there was a conflict in what he said?

[00:25:52] Speaker 02:
I do not, I do not agree.

[00:25:55] Speaker 02:
The Murphy's declaration is an excerpt of record 83 and 84 on this pertinent point about whose responsibility it was.

[00:26:02] Speaker 02:
and his testimony is at the supplemental exit record 109 through 117.

[00:26:07] Speaker 02:
Murphy's testimony is consistent that the stevedore retain it has complete responsibility for the safety of the floor in the cargo hold.

[00:26:15] Speaker 02:
Gang boss Joel Gomera testified that he went and inspected the floor and found it to be fine before the rest of the longshoremen came down there and Mr. Neistrom was hurt.

[00:26:24] Speaker 02:
Murphy's testimony, my friend on their side is making a big point about Mr. Murphy's testimony because

[00:26:30] Speaker 02:
He says in his declaration that either the vessel can be down there breaking up ice, or the stevedores can be down there breaking up ice, if there is ice, hypothetically.

[00:26:42] Speaker 02:
And in his trial testimony, he said, we've never broken up ice.

[00:26:48] Speaker 02:
My guys know how to work on ice safely.

[00:26:51] Speaker 02:
They know how to wear the appropriate footwear, and they know how to walk safely on ice.

[00:26:55] Speaker 02:
So we never do it.

[00:26:56] Speaker 02:
If anyone's doing it, the vessel would be doing it.

[00:27:00] Speaker 02:
That's the only – that's not a contradiction, but that's the only little difference between the two.

[00:27:08] Speaker 02:
Murphy is clear in both of those things that it was – is 100 percent the responsibility of the stevedore to provide a – to make sure that the walking surface is safe.

[00:27:22] Speaker 02:
I would argue that all of the factual findings doom the appellant's arguments in this case.

[00:27:27] Speaker 02:
The uniform testimonies that experienced Dutch Harbor longshoremen routinely expect this ice and routinely safely manage it by being careful.

[00:27:40] Speaker 02:
Ice or slippery conditions?

[00:27:41] Speaker 02:
It was a slippery spot.

[00:27:46] Speaker 02:
I've known to not say it exactly right.

[00:27:49] Speaker 02:
It was a slippery spot.

[00:27:50] Speaker 02:
The court found, and this is, again, at paragraph 29 of the findings of fact, the court specifically rejected Mr. Neistrom's testimony and credited Gang Bosco Mayor's testimony.

[00:28:01] Speaker 02:
that the deck was not covered in ice.

[00:28:04] Speaker 02:
It was a small slippery spot caused from trace precipitation falling in through the open cargo hold and hitting the cold floor.

[00:28:13] Speaker 02:
As any Alaskan could tell you that.

[00:28:15] Speaker 00:
So it sounds like it's a little bit of ice instead of a lot of ice and that matters because?

[00:28:22] Speaker 02:
Well, it matters because the court found that there was not sufficient ice and ice in a manner such that you'd come down there and break it up, shovel it, and put it in bags and remove it.

[00:28:32] Speaker 02:
It was just a small slippery spot of frost.

[00:28:36] Speaker 02:
So it's another one of the reasons that he rejected Mr. Nystrom's account of the event, that there was an ice sheet.

[00:28:46] Speaker 02:
Two other quick points.

[00:28:47] Speaker 02:
Plaintiffs complained about the court's adoption of the vessel's proposed findings of fact and conclusions of laws without merit.

[00:28:54] Speaker 02:
Nothing prevents a court from adopting a party's submitted proposed findings of fact and conclusions of law.

[00:28:59] Speaker 02:
Once the court puts their signature on it, that is the court's findings of fact and conclusions.

[00:29:04] Speaker 02:
Second, the court did not adopt our findings of fact and conclusions of law wholesale.

[00:29:08] Speaker 02:
There are differences.

[00:29:10] Speaker 02:
And regardless, the standard review is the same.

[00:29:12] Speaker 02:
The factual in this court is clear in all of its decisions.

[00:29:15] Speaker 02:
It remains the same.

[00:29:17] Speaker 02:
The findings of fact are reviewed for clear error, and conclusions of law are reviewed de novo.

[00:29:22] Speaker 02:
The trial court's reference to Steve Adore, President's affidavit, its citation to the affidavit, and its findings of fact and conclusions of law are, I think I'm out of time.

[00:29:33] Speaker 02:
You finish your point.

[00:29:33] Speaker 02:
Okay.

[00:29:35] Speaker 02:
First of all,

[00:29:37] Speaker 02:
He argues that they argue that that was its hearsay and should have been included.

[00:29:41] Speaker 02:
That argument's waived.

[00:29:42] Speaker 02:
It was not made below.

[00:29:43] Speaker 02:
Can't make it for the first time on appeal.

[00:29:44] Speaker 02:
That argument's waived.

[00:29:45] Speaker 02:
Second, and more importantly, it was completely harmless.

[00:29:48] Speaker 02:
The citation to Mr. Murphy's affidavit was cumulative.

[00:29:52] Speaker 02:
If the court looks at excerpt of record 25 through 44, it can find all the citations for the trial testimony that match up with the declaration itself.

[00:30:02] Speaker 02:
The court should affirm the district court's judgment.

[00:30:05] Speaker 03:
Thank you, counsel.

[00:30:10] Speaker 03:
I'll just take a couple minutes here.

[00:30:12] Speaker 03:
Hold on, let me just get the clock set here for you.

[00:30:15] Speaker 01:
Okay.

[00:30:16] Speaker 00:
Two minutes, I think you said.

[00:30:18] Speaker 01:
There you go, two minutes.

[00:30:19] Speaker 01:
Thank you.

[00:30:21] Speaker 01:
Mr. Baxter's simply incorrect in his recitation of what happened, adding the case on the record.

[00:30:29] Speaker 01:
I'm going to quote, in his declaration, Andrew Murphy said, quote, the responsibility for moving ice that is formed on a cargo hold deck lies with the gang boss, not with the ship's crew.

[00:30:40] Speaker 01:
That was presented on summary judgment.

[00:30:43] Speaker 01:
At trial, quote, stevedores never de-ice.

[00:30:47] Speaker 01:
It is the ship's crew who de-ices.

[00:30:50] Speaker 01:
Murphy was, quote, unaware of his stevedores ever clearing ice, and he had never asked them to do so.

[00:30:56] Speaker 01:
Gamera, the gang boss, testified at trial.

[00:31:00] Speaker 01:
It's the ship's crew members who break the ice, and they do this when the ice is too much.

[00:31:06] Speaker 01:
That's the ship's crews.

[00:31:08] Speaker 01:
We always, if ice builds up on the floor, we always, I always call the chief or whoever the crew in there is in a hatch to start breaking it.

[00:31:15] Speaker 01:
at trial.

[00:31:16] Speaker 01:
Captain Chong by deposition admitted as trial evidence and he sat in the trial and his statement, which is the 103 I talked about, had they had any questions about that, they could have called him, but I didn't think

[00:31:31] Speaker 04:
The problem, counsel, is that a lot of your arguments here seem to go to the active control issue.

[00:31:36] Speaker 04:
And there was a trial held on that.

[00:31:39] Speaker 04:
And there was conflicting, at best, there was conflicting evidence presented.

[00:31:43] Speaker 04:
That puts you in a tough position, because we would have to find that there's no support for the position that active control had remained with the stevedores.

[00:32:01] Speaker 01:
Captain Chong, the first officer's testimony, all was that the ship's crew were actively de-icing and were present when Mr. Nystrom fell.

[00:32:12] Speaker 01:
But the district court rejected that.

[00:32:14] Speaker 01:
Maybe it's right.

[00:32:15] Speaker 01:
Maybe it's wrong.

[00:32:16] Speaker 01:
The district court rejected that.

[00:32:17] Speaker 01:
It did not reject it in his findings of fact.

[00:32:19] Speaker 01:
It did not explain it.

[00:32:20] Speaker 01:
It's simply... 103 is not mentioned in the findings of fact, as I recall.

[00:32:24] Speaker 01:
Not mentioned at all.

[00:32:26] Speaker 04:
Well, that's not the only way that you reject something.

[00:32:27] Speaker 01:
Well, but it's a...

[00:32:30] Speaker 01:
When you have everybody testifying, all of those are saying that the ship's crew is responsible.

[00:32:38] Speaker 01:
Murphy has testified in declaration in the summary judgment, no, it's the stevedores.

[00:32:43] Speaker 01:
In a trial, everyone says, no, no, it's the ship's crew who always does this.

[00:32:49] Speaker 01:
How can they turn over control if they always retain responsibility for deicing?

[00:32:56] Speaker 01:
I mean, it would have been simple if the ship's crew was not involved.

[00:33:01] Speaker 01:
or it wasn't their primary responsibility, as the captain said, then there could be full turnover, but you can't turn over something if you retain control of a portion, you know, retain the responsibility to de-ice, and that's what they were doing.

[00:33:16] Speaker 01:
And Judge Kindred's decision to ignore all of that evidence and simply choose

[00:33:23] Speaker 01:
the one person who said something different, which is Gomera, they didn't have anybody from the ship's crew testify.

[00:33:29] Speaker 01:
They didn't have any of the workers for the ship testify.

[00:33:33] Speaker 01:
They had one person who worked for the stevedoring company whose boss contradicted himself.

[00:33:38] Speaker 01:
He had said before, it's our responsibility at trial, it's never our responsibility.

[00:33:43] Speaker 01:
That's the problem, and that's what did not make sense.

[00:33:46] Speaker 01:
And it shouldn't be, you know,

[00:33:49] Speaker 01:
I agree, lots of deference has to be given to trial court's decisions.

[00:33:54] Speaker 01:
But in this situation where, I mean, Nystrom was always consistent about what happened and how he fell.

[00:34:00] Speaker 01:
He was confused of where he was because he wasn't experienced with getting on these huge ships.

[00:34:05] Speaker 01:
But he was consistent about what he said happened and what happened.

[00:34:08] Speaker 01:
It was consistent with 103.

[00:34:10] Speaker 01:
It was consistent with the way the deposition testimony was from Captain Chong and the first officer.

[00:34:17] Speaker 01:
And Judge Kindred just chose

[00:34:19] Speaker 01:
to disregard all of that and disregard the fact that Murphy's testimony had done an entire 180.

[00:34:28] Speaker 01:
Either they're responsible or they're not responsible.

[00:34:31] Speaker 01:
That's it.

[00:34:31] Speaker 01:
Thank you.

[00:34:32] Speaker 01:
Thank you very much again for coming.

[00:34:33] Speaker 03:
Thank you, counsel.

[00:34:34] Speaker 03:
Thanks to both of you for briefing the argument in this matter.

[00:34:37] Speaker 03:
This case is submitted and we'll move on to the final case.