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Holder v. Fraser Shipyards, Inc.

United States District Court, W.D. Wisconsin

January 17, 2018

JAMES HOLDER, Plaintiff,


          WILLIAM M. CONLEY, District Judge

         Plaintiff James Holder alleges that he suffered from lead poisoning while working on a project to convert the Herbert C. Jackson's propulsion system from steam- to diesel-powered. He sued the ship's owner, The Interlake Steamship Company, alleging negligence under the Longshore and Harbor Workers' Compensation Act (the “Act” or “LHWCA”), 33 U.S.C. § 905(b), as well as Fraser Shipyards, Inc., where the Jackson was dry-docked for the upgrade, and Capstan Corporation, Fraser's parent corporation, for negligence under § 933 of the Act.[1] These three defendants highlight different provisions of the Act: § 905(b), the exclusive remedy against vessels;[2] §§ 904, 905(a), the exclusive remedy against employers; and § 933, the remedy against third parties. Before the court are defendants' motions for summary judgment (dkt. ##50, 72, 78), along with plaintiff's related request to disregard new evidence and argument in Fraser's reply (dkt. #124).[3]


         A. Background

         Defendant Interlake, the owner of the Jackson, is a Delaware corporation that maintains its principal place of business in Ohio. Beginning in 2006, Interlake started a ten-year project to upgrade five ships in its fleet, including converting four to diesel-powered. The last ship due for an upgrade was the Jackson. To facilitate this, Interlake entered into a contract on September 30, 2015, with defendant Fraser.

         Fraser is a Wisconsin corporation with its principal place of business in Superior, Wisconsin, which provides shipyard services, such as construction, repairs and inspections. Fraser's work on the Jackson was its “first major repowering [project] . . . since the mid-1980s.” (Press Release (dkt. #101-2) 5.) The majority of the work Fraser performs occurs at its property in Superior, Wisconsin. Defendant Capstan is Fraser's sole shareholder and parent corporation and it is a Wisconsin corporation, but with an office in Duluth, Minnesota.[5] Defendants Capstan and Fraser are separate corporate entities, with separate workspaces, email domains, corporate logos and websites. They do, however, share a CEO and chairman (Todd Johnson), as well as a treasurer and CFO (Scott Brantly).[6] According to Nicholas Minardi, who is allegedly familiar with Capstan's corporate structure between 2014 and 2016, Capstan and Fraser shifted their approach in 2014 to safety management, so that Capstan would manage safety for Fraser.[7]

         Since February 18, 2011, Fraser had a Client Services Agreement with Tradesmen International, under which Tradesmen would assign workers to Fraser. By its terms, this agreement specified that Fraser would be “solely responsible for directing, supervising and controlling Tradesmen employees as well as their work.” (Client Services Agreement (dkt. #15-1) ¶ 3(a).) This agreement also detailed that Fraser had the right “in its sole discretion, [to] release a Tradesmen employee back to Tradesmen at any time.” (Id.)

         On December 14, 2015, Holder applied for a job as a “ship fitter” with Tradesmen, believing that the job consisted of working for Tradesmen in Superior, Wisconsin. As part of the application process, Holder acknowledged that he would be subject to a background check, including signing off on execution of a background check release form, which referred to Tradesmen as the employer. Holder also received a Tradesmen Employment Orientation Recap, which involved reviewing OSHA training and the Tradesmen Employee Safety Handbook, watching a safety video, and discussing fringe benefits. In addition, he was instructed to report injuries and accidents to Tradesmen for investigation and to direct questions about the Field Employee Policy Manual to his manager. Finally, Holder understood that Tradesmen would manage his employee withholdings.

         Beginning in January 2016, Tradesmen assigned workers to Fraser Shipyards for the Jackson upgrade, including Holder. Holder disputes that: (1) the Fraser-Tradesmen Client Services Agreement was followed in practice; (2) he acknowledged Fraser's responsibility and authority for his direction and supervision; and (3) he acknowledged being a Fraser employee. Fraser paid Tradesmen for the work done by Holder based on a bill-out rate, multiplied by the number of hours Holder worked.

         B. Holder's Work on the Jackson

         Holder worked aboard the ship at Fraser's dry dock for 37 days, from January 5 until February 29, 2016. On the 5th, Holder signed a notice agreeing to abide by Tradesmen's policies, as well as acknowledging that Tradesmen or he could terminate his employment “with or without cause, and with or without notice, at any time.” (Holder Personnel File (dkt. #102-1) 10.)

         Holder's work involved “removing and replacing the bottom and side shell on the vessel and also framework, ” which required him “to burn out the old steel with a torch, ” make “final cuts, take whatever framework had to be taken out, and go ahead and replac[e] everything with new steel.” (Holder Dep. (dkt. #85) 98:4-15.) He only worked on the turn-of-the-bilge/ballast area of the ship. Holder avers that his supervisors were Chris Duncan and Joe Kutzler (apparently misspelled as Cunsler) and that they directed his work, although Fraser and Capstan dispute this. The parties also dispute whether Duncan and Kutzler were employees of Reuben Johnson & Sons (“RJS”) or Chris Jensen & Sons, and whether they were working for Fraser on the Jackson project. Fraser avers that no RJS employees were on the Jackson.

         Regardless, Holder believed that he was working for Tradesmen, not Fraser. Moreover, the parties agree that Holder was paid by Tradesmen during the course of his work at the Fraser Shipyards, although they dispute whether Fraser provided Holder with tools or whether Holder brought his own, with the exception of heavy equipment which they agree was available at the job site. The parties also dispute whether Fraser made available safety and protective equipment. Holder contends that when he checked out equipment, he identified himself as a Tradesmen employee.

         Fraser asserts that Holder worked on a different project unrelated to the repowering project -- specifically, one replacing shell plates, which was covered by a different Interlake purchase order -- while Holder maintains that he worked on the repowering project. In either case, Holder maintains that he was exposed to lead during his work on the project. He also avers that: (1) a Fraser representative informed him respirators were optional; (2) no one told him about designated changing areas, to vacuum his clothing, or other preventive hygiene; (3) the respirator he used at work was not fit tested; and (4) on January 29, 2016, Farkas informed him that “there is no lead paint” (Holder Dep. (dkt. #85) 164:6-165:5). Holder does not recall speaking with anyone from Interlake while working on the Jackson.

         C. Work Performed on the Jackson

         The goal of the contract between Interlake and Fraser Shipyards was to convert the Jackson from steam- to diesel-powered. For the price of $9, 784, 295, plus costs for equipment, the Jackson repowering project included the installation of new diesel engines, operating and main decks, propeller and blades, control room and console, and a tailshaft, plus related piping, electrical components and equipment. During the work, the propeller blades, rudder, hub, unloading diesel generators, and stack were removed; the propeller shaft cut; the main propulsion turbine, propulsion boilers, propulsion controls, and reduction gear were demolished; and the outer hull below the waterline had a 7-foot by 4-foot hole in it. The ship was unable to propel itself and was no longer watertight and or capable of floating while in dry dock. Holder himself testified about “holes all over the shell of the boat, ” such that it looked like “Swiss cheese, ” and there was “no way in the world that boat was going to float if you flooded the dry dock at that point.” (Holder Dep. (dkt. #85) 151:3-15.)

         As a result, the Jackson was in dry dock from December 15, 2015 until May 31, 2016, and could not have been used for transport during this time. The Jackson entered a Fraser “graving” dry dock, such that it was out of water and did not have a captain in service onboard. Although this repowering project was supposed to take approximately six months, and actually took nine, the parties agree that it was typical for a Great Lakes ship to be out of use during at least a few of the winter months, when maintenance is routinely done.

         The parties dispute who controlled the Jackson during this upgrade. Holder argues that the ship remained in Interlake's active control, while Interlake points to Fraser. They likewise dispute whether Interlake controlled the details of the work performed by Fraser. They also disagree whether there was crew aboard. Holder avers that Mike Wolny was working on the ship on behalf of Interlake, while Interlake responds that Wolny was a “field project manager, ” who updated Interlake on the status of the project, but did not reside on the ship and was provided office space by Fraser. Holder contends Wolny's presence practically gave Interlake the ability to intervene in the work being completed and to direct workers on how to do their jobs, while Interlake contends that Wolny was merely a “technical advisor, ” who advised about the positioning of valves. Interlake maintains further that it only had the right to approve and inspect work, material and workmanship, to assure conformance with the contract.

         Still, the parties agree that Wolny met weekly with Fraser's Currelli and that Interlake needed to pre-approve additional work. Wolny also created “Weekly Repower Reports” for Interlake's director of fleet projects, Ian Sharp, in which he regularly reported that Fraser “require[d] a procedure to deal with the discovery of lead paint” and that no testing for lead paint had been performed. (See e.g. Weekly Reports (dkt. #100-2) 27, 36, 64, 84.) According to plaintiff, Fraser relied on Grant Huttel, a Capstan employee, for safety management during the Jackson repowering project.

         The ship was returned to Interlake on September 25, 2016, a Certificate of Inspection was issued on September 23, 2016, and an American Bureau of Shipping Certificate for the Jackson was issued on December 15, 2016. The parties dispute whether the Jackson needed these certificates before it could sail.

         D. Knowledge of Lead

         The parties next dispute whether Fraser assumed the ship had lead paint based on its age, but Interlake expressly warned Fraser in the contract that “there may be asbestos and lead paint” on the ship and that the “responsibility to safely remove any and all asbestos and lead paint that is disturbed as a result of this conversion” fell to Fraser. (Shipbuilding Contract for the Re-Powering of the Str. Herbert C. Jackson and Attachments (dkt. #81-1) 43.) Moreover, a kick-off meeting between Fraser, Interlake, Seeley Electric, Toromont, MAST, Northern Engineering, Bay Engineering, Robinson Brothers, and Benson Electric was held on October 12-13, 2015, at which they discussed asbestos abatement. At that meeting, Interlake avers it again warned Fraser that lead paint was likely to be found on the Jackson, to which Fraser responded that it had a procedure for handling lead.

         On November 30, 2015, Robinson Brothers gave Fraser a price quote on lead paint removal from the engine room of the Jackson. Interlake contends that this quote addressed only a “localized spot, ” and such work was completed. Plaintiff alleges that Interlake chose not to repaint the engine room because the cost of removing and replacing the paint was too high and would take too long.

         At a meeting on December 15, 2015, Interlake again informed Fraser that there likely was lead paint on the ship, this time pointing out that other shipyards working on the Jackson during prior winters had developed procedures for detecting lead paint and ensuring worker safety by monitoring air quality. Plaintiff disputes Interlake's assertion that Fraser's Tom Currelli assured that a system was in place for dealing with toxins, including lead paint, that was similar to other shipyards'.

         Plaintiff further hypothesizes that Fraser's allegedly written, lead compliance program was only created after the Jackson project was terminated, disputing the assertion that Fraser informed Interlake at a January 8, 2016, meeting of its intent to activate its lead detection and remediation procedures. Plaintiff also disputes Interlake's assertion that it did not know Fraser had failed to act to protect workers from lead paint and other toxic substances.

         E. OSHA Investigation

         Workers complained to defendants Capstan and Fraser about the air quality aboard the Jackson. When Capstan and Fraser did nothing, workers then turned to OSHA. OSHA conducted air sample testing on the Jackson on February 10-11, 2016, resulting in a citation and notice of penalty on July 29, 2016. (OSHA Citation (dkt. #101) 36.) On both days, OSHA found “[t]he employer did not ensure that employee(s) exposure to lead did not exceed 40 micrograms per cubic meter (ug/m3) of air, as a reduced 10-hour time weighted average (TWA) for the extended work shift.” (Id.)[8] Those violations occurred when an employee was welding in Ballast Tank #5. (Id.) On February 10th, the employee's exposure was approximately 11.66 times permissible exposure; on the 11th, the exposure was approximately 4.05 times permissible exposure. (Id.) OSHA conducted additional air sample testing on March 23, 2016, again finding lead exposures greater than the permissible level. (See e.g. Id. at 39.) OSHA found several violations. (See generally OSHA Citation (dkt. #101).)

         F. Holder's Injury

         After Holder stopped working on the Jackson on February 29, 2016, a former colleague advised him to have his blood tested because others had been exposed to lead. When Holder did so on April 1, 2016, his blood test revealed a blood-level of 36.5 µg/dL. In contrast, a normal blood lead level (BLL) for adults at that time was considered to be less than 5 µg/dL, with an average of 1.2 µg/dL. See The National Institute for Occupational Safety and Health (NIOSH) Adult Blood Lead Epidemiology and Surveillance (ABLES) Program Description, Centers for Disease Control and Prevention (Aug. 10, 2017), (hereinafter “NIOSH ABLES”).[9]

         Holder applied for benefits under the Act on January 9, 2017, identifying Tradesmen as his employer and Chris Pooler as his supervisor. (LHWCA Claim Form (dkt. #102-2) 1.)[10] The U.S. Department of Labor notified Tradesmen of the claim. Holder has yet to receive workers' compensation benefits from any defendant. Tradesmen is not covered by Fraser's LHWCA insurance. Likewise, Fraser's insurance policy covers neither Chris Jensen & Son Co. nor RJS Construction as a related or alternate employer.

         Dr. David Parker, a licensed physician with a master's of public health in occupational epidemiology, who has consulted with labor and industry about worker health and safety, spoke with Holder on the phone and reviewed his medical records.[11] He also created and used an Adult Lead Survey to examine Holder's exposure during his work on the Jackson. Dr. Parker concluded that Holder had suffered from lead poisoning because of his work on the Jackson.


         Summary judgment is appropriate if the moving party establishes “that there is no genuine dispute as to any material fact” and it “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). At summary judgment, the district court is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Disputes as to non-material facts will not preclude the grant of summary judgment. See Id. at 247-48 (“By its very terms, [the summary judgment] standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”). Moreover, the court must “view the facts in the light most favorable to the non-moving party, ” and draw “all reasonable inferences from those facts in [the non-moving party's] favor, ” but need not ignore facts unfavorable to the non-moving party because it only receives the benefit of the doubt if the record has evidence on both sides of a question. Patel v. Allstate Ins. Co., 105 F.3d 365, 366 (7th Cir. 1997) (citing Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996)). In the end, if a reasonable factfinder could not, based on the record as a whole, find for the non-moving party, summary judgment is appropriate. Tajonera v. Black Elk Energy Offshore Operations, L.L.C., Nos. 13-0366, 13-0550, 13-5137, 13-2496, 13-5508, 13-6022, 13-6099, 13-6413, 14-374, 2014 WL 5113322, at *7 (E.D. La. Oct. 10, 2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, (1986)). Here, there are simply too many material disputed issues of fact to grant summary judgment, at least as to some of the defendants.

         The Longshoreman and Harbor Workers Compensation Act provides worker's compensation to employees for

disability or death . . . if [such] results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading or unloading, repairing, or building a vessel).

33 U.S.C. § 903(a). Injury includes “occupational disease or infection.” 33 U.S.C. 902(2). An employee is “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker.” 33 U.S.C. § 902(3). This requires a plaintiff to satisfy the situs and status tests discussed in the court's motion to dismiss. See Peter v. Hess Oil V.I. Corp., 903 F.2d 935, 938 (3d Cir. 1990), reh'g denied. In turn, “an employer” under the Act includes:

any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).

33 U.S.C. § 902(4).

         The Act's coverage was expanded in 1972 to include “adjoining area[s] customarily used by an employer in loading, unloading, dismantling, or building a vessel” to erase disparity between the benefits available to longshoremen injured on navigable waters and those injured on adjacent piers, with Congress seeking “to provide a seamless blanket of coverage for all longshore injuries.” Peter, 903 F.2d at 948. Generally, the Act provides the exclusive remedies against employers and vessels, by barring other state tort remedies. See 33 U.S.C. § 905(a)-(b); see also Peter, 903 F.2d at 951-52 (“[Plaintiff's] judgment based on Virgin Islands' law is every bit as disruptive of Congress' quid pro quo as would be a negligence judgment based on federal maritime law. Accordingly, we do not find it surprising that the only court of appeals to have considered the issue has concluded that § 905(a) bars a state tort recovery from a LHWCA employer.”).[12]

         Just as most other workers compensation acts, however, the LHWCA does permit an injured employee to sue third parties. See 33 U.S.C. § 933(a), (i). The principal issue on summary judgment as to defendant Interlake, the Jackson's owner, is whether it is subject to liability in this court under the Act as a “vessel, ” or under the general umbrella of a suable third party. As noted, plaintiff also brought claims against Fraser Shipyards, where the work on the Jackson was done, and Capstan, the owner and parent corporation of Fraser, which plaintiff now alleges was responsible for safety management for the work on the Jackson. The court will address the claims against each defendant in turn.

         I. Claims Against Interlake

         A. § 905(b) of the LHWCA

         Section 905(b) of the Act allows the exclusive remedy for maritime torts to be asserted against “vessels, ” which include “said vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charter, master, officer, or crew member.” See 33 U.S.C. §§ 902(21), 905(b). Importantly, “[i]t is not a vessel owner's status as a vessel owner that dictates which LHWCA provision a maritime worker may use; it is the type of negligence that the worker alleges and the duty that is owed by the vessel owner that is controlling.” McLaurin v. Noble Drilling (US) Inc., 529 F.3d 285, 292 (5th Cir. 2008). In enacting § 905(b), “Congress did not create a new or broader cause of action in admiralty than that which previously existed, but rather it curtailed available third party tort actions.” Richendollar v. Diamond M Drilling Co., 819 F.2d 124, 125 (5th Cir. 1987). For a tort to be cognizable under this section, it “must occur on or in navigable waters subject . . . to the special provisions of the Admiralty Extension Act, and there must be the traditional admiralty nexus.” Id. (footnotes omitted) (; see also Mot. Dismiss Op. (dkt. #59) 7-8). Thus, the court is faced with two questions: (1) does plaintiff have a maritime tort cause of action; and (2) was a breach of duty by Interlake the proximate cause of plaintiff's injury?

         1. Maritime Tort

         As the court explained in its opinion on the motion to dismiss,

To prevail on a negligence claim against a “vessel” under § 905(b), a plaintiff must satisfy a two part test: “(1) his injury must occur within an area adjoining navigable waters of the United States, known as the ‘situs' test, and (2) the nature of the work performed by him must be maritime in nature, known as the ‘status' test.”

(Mot. Dismiss Op. (dkt. #59) 8 (quoting McLaurin, 529 F.3d at 289) (emphasis added).) Interlake argues that the court's analysis begins and ends with the situs test because: (1) the Jackson was in permanent dry dock, meaning Holder's injury occurred on land; and (2) the Jackson was not a “vessel” at the time of Holder's injury. As such, the parties did not address the status test.[13]

         Turning first to Interlake's assertion that the situs of plaintiff's injury was on land because the Jackson was in “dry dock, ” as plaintiff points out, that term is included within the definition of “navigable waters” in § 903(a) itself. Indeed, a vessel in dry dock -- even a so-called “graving” dry dock[14] -- has still been considered within navigable waters for purposes of admiralty jurisdiction for over one hundred years. See Vasquez, 582 F.3d at 299 (“The water in a graving (or graven) dock is temporarily removed so that a ship under repair comes to rest on dry land, but the temporary absence of water does not defeat federal maritime jurisdiction.” (citing The Robert W. Parsons, 191 U.S. 17, 33-34 (1903)); see also Sea Vessel Inc. v. Reyes, 23 F.3d 345, 348-49 (11th Cir. 1994) (concluding that a ship in dry dock is “in or on navigable waters for purposes of admiralty jurisdiction” based on common practice, logic and Supreme Court precedent (citing Robert W. Parsons, 191 U.S. at 33-34; Simmons v. The Steamship Jefferson, 215 U.S. 130, 142 (1909); Gonsalves v. Morse Dry Dock & Repair Co., 266 U.S. 171 (1924)); Cabasug v. Crane Co., 956 F.Supp.2d 1178, 1178 & n.11 (D. Haw. 2013) (collecting cases). Thus, as a matter of settled law, the Jackson was within an area adjoining navigable waters -- and not on land -- while plaintiff was aboard.

         As to the argument that the Jackson was no longer a vessel, however, Interlake has a better argument, albeit one that also does not warrant summary judgment. As an initial matter, a “vessel” incorporates “every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” Stewart v. Dutra Const. Co., 543 U.S. 481, 489 (2005) (quoting 18 Stat., pt. 1, p. 1).[15] This definition is the codification of the term's meaning in general maritime law. Id. at 490. In Stewart, the Supreme Court held that “a watercraft is not ‘capable of being used' for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement.” Id. at 494.[16] As such, “structures may lose their character as vessels if they have been withdrawn from the water for extended periods of time, ” id. at 496 (internal citations omitted) (emphasis added), unless as “a practical possibility or merely a theoretical one, ” the watercraft can be used “as a means of transportation on water.” Id. Providing further guidance, the Lozman Court advised that a structure is not included in the definition of “vessel” “unless a reasonable observer, looking to the [structure's] physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.” Lozman v. City of Riviera Beach, Fla., 568 U.S. 115, 121 (2013). The Court noted that “lack of self-propulsion is not dispositive, ” but “may be a relevant physical characteristic.” Id. at 122 (citing Parsons, 191 U.S. at 31).

         For purposes of this case, therefore, the relevant question is whether the work on the Jackson became significant enough that it was no longer “‘capable of being used' for maritime transportation.” Stewart, 543 U.S. at 496;[17] see also West v. United States, 361 U.S. 118, 122 (1959) (“It would appear that the focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done, rather than the specific type of work that each of the numerous shore-based workmen is doing on shipboard at the moment of injury.”); Lozman, 586 U.S. at 136 (Sotomayor, J., dissenting) (“[S]hips that ‘have been withdrawn from the water for extended periods of time' in order to facilitate repairs and reconstruction may lose their status as vessels until they are rendered capable of maritime transport.” (citing Stewart, 543 U.S. at 496)). This will be a question for the jury. See Stewart, 543 U.S. at 496 (“In some cases the inquiry [“whether the watercraft's use ‘as a means of transportation on water' is a practical possibility or merely a theoretical one”] may involve factual issues for the jury[.]” (citing Chandris, 515 U.S. at 373)).

         Regardless of whether Holder was working on the repowering project or another project, it is undisputed that the Jackson was undergoing major construction during the time that he was working.[18] The project, costing $9, 784, 295 plus equipment, involved: (1) the removal of the propeller blades, rudder, hub, unloading diesel generators, and stack; (2) the demolition of the propeller shaft cut; the main propulsion turbine, propulsion boilers, propulsion controls, and reduction gear; and (3) the installation of new diesel engines, operating and main decks, propeller and blades, control room and console, and a tailshaft, as well as related piping, electrical components and equipment. Further, for a time there was a 7-foot by 4-foot hole in the outer hull below the waterline. Plaintiff himself described the ship as looking like “Swiss cheese, ” and acknowledged “holes all over the shell of the boat, ” and that there was “no way in the world that boat was going to float if you flooded the dry dock at that point.” (Holder Dep. (dkt. #85) 151:3-15.) The ship was in dry dock for five and a half months and was out of service for nine months, instead of the predicted six, obviously longer than during the typical annual winter repair. For some period during this time, there was no “practical possibility” that it could have been used “as a means of transportation on water, ” Stewart, 543 U.S. at 496, in ...

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