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West v. City of St. Paul (4/11/97), 936 P 2d 136
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Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska, 99501, telephone (907) 264-0608, fax (907) 264-
0878.
THE SUPREME COURT OF THE STATE OF ALASKA
CHARLES WEST, )
) Supreme Court No. S-6762
Appellant, )
) Superior Court No.
v. ) 3AN-91-9372 CI
)
CITY OF ST. PAUL, ) O P I N I O N
)
Appellee. ) [No. 4803 - April 11, 1997]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Michael W. Flanigan, Walther &
Flanigan, Anchorage, Charles W. Ray, Jr.,
Anchorage, and David Paul Bains, Hilleren &
Bains, New Orleans, Louisiana, for Appellant.
Michael L. Bono and Brewster H. Jamieson,
Lane, Powell, Spears, Lubersky, Anchorage, for
Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Charles West was the engineer of the F/V Alaskan Monarch,
a ninety-six foot crabber. He sued the City of St. Paul for
injuries he suffered while abandoning the ship when it became
trapped in ice and was driven aground outside the City's harbor.
The superior court, concluding that the City's harbormaster owed no
duty to warn of ice conditions outside the harbor, dismissed West's
suit. West appeals. We affirm.
II. FACTS AND PROCEEDINGS
On March 14, 1990, the F/V Alaskan Monarch was enroute to
the St. Paul harbor to deliver 100,000 pounds of crab to Pribilof
Island Processors (PIP). When it was six to eight miles from the
harbor, its captain, Morris Hansen, radioed PIP for an unloading
time. PIP gave Hansen a 9:00 a.m. unloading time. At this point,
the vessel had encountered no ice. Hansen then called the St. Paul
harbormaster to request clearance into the harbor. The
harbormaster was employed by the City of St. Paul.
The City conceded for the purpose of its summary judgment
motion that clearance was given. Brett Wagner, a PIP employee,
swore in an affidavit that he overheard the harbormaster give
Hansen clearance to enter the harbor. Wagner further affied that
when he heard the conversation over his portable radio, he could
see the harbor and the harbormaster's office and did not see the
harbormaster visually inspect the harbor.
The Alaskan Monarch continued toward the harbor; it
encountered an ice floe about one and one-half miles from the
harbor entrance. (EN1) Hansen called the harbormaster again and
asked him to tell PIP that ice conditions would cause the Alaskan
Monarch to be late. The harbormaster did not inform Hansen that
there were any hazardous ice conditions in the harbor or that any
vessels were stuck in pan ice in the harbor. The Alaska Mist, a
300-foot processing vessel, was exiting the harbor, and in doing so
cleared a path to the harbor entrance. In an attempt to reach the
harbor, Hansen piloted the Alaskan Monarch into the wake of the
Alaska Mist. The Alaskan Monarch, however, traveled only another
quarter of a mile before becoming caught in the ice. (EN2)
After the ice trapped the vessel, Hansen radioed a call
for help to other vessels and learned that a number were also stuck
or unable to come to his assistance. Throughout the rest of that
day and the next, the crew tried to free the vessel from the ice
and fix the damage already done by the jagged ice.
Hansen radioed a Mayday signal when weather conditions
worsened on March 15. The Alaskan Monarch was then getting very
close to shore. A U.S. Coast Guard cutter attempting to help was
unable to secure a towline to the vessel. A Coast Guard helicopter
lifted four crew members off the vessel, leaving only Hansen and
West aboard for a final attempt to save the ship. Soon after, the
vessel went aground on a jetty near the harbor entrance and was
holed in its bow. Hansen then asked the helicopter to lift West
and himself from the stricken boat. While they were moving to the
bow where they could be lifted from the deck, a wave knocked them
overboard. West was injured. The Coast Guard eventually pulled
both men from the water.
West sued the vessel and Hansen on maritime theories. He
also sued the City of St. Paul, alleging that its harbormaster
negligently gave the vessel clearance to enter the harbor and
failed to warn of dangerous ice conditions. The City successfully
moved for summary judgment. The court denied West's
reconsideration motion and entered final judgment for the City.
West appeals.
III. DISCUSSION
. Standard of Review
In reviewing a grant of summary judgment, this court must
determine whether genuine issues of material fact exist, drawing
all inferences in favor of the opposing party, and whether any
party is entitled to judgment as a matter of law. Newton v.
Magill, 872 P.2d 1213, 1215 (Alaska 1994) (citing Sea Lion Corp. v.
Air Logistics of Alaska, Inc., 787 P.2d 109, 116 (Alaska 1990);
Wassink v. Hawkins, 763 P.2d 971, 973 (Alaska 1988)). "When
reviewing questions of law, this court applies its independent
judgment." Estate of Lampert Through Thurston v. Estate of Lampert
Through Stauffer, 896 P.2d 214, 218 (Alaska 1995) (citing Summers
v. Hagen, 852 P.2d 1165, 1169 (Alaska 1993)). Under this standard,
we adopt "the rule of law which is most persuasive in light of
precedent, policy and reason." Summers, 852 P.2d at 1169 (citing
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
. Scope of Wharfinger's Duty to Warn of Ice Conditions
West asserts that the City, through its function as a
wharfinger, (EN3) owed to inbound vessels a duty to warn of ice
conditions within the harbor; he claims that the City negligently
breached this duty when its harbormaster gave clearance to the
Alaskan Monarch to enter the harbor and did not inform her captain
of those conditions. The City argues that a wharfinger's duties
pertain to providing a safe berth, and do not extend to areas
outside the wharf or harbor and do not include a duty to warn of
open and obvious sea and weather conditions.
Smith v. Burnett, 173 U.S. 430 (1899), is recognized as
the seminal case on the issue of the duties of a wharfinger.
Michael S. Cessna, The Mutual Rights and Obligations of Wharfingers
and Shipowners, 19 J. Mar. L. & Com. 565, 565 (1988) (hereinafter
Mutual Rights and Obligations). In Burnett, the Court stated:
Although a wharfinger does not guaranty the
safety of vessels coming to his wharves, he is
bound to exercise reasonable diligence in
ascertaining the condition of the berths
thereat, and, if there is any dangerous
obstruction, to remove it, or to give due
notice of its existence to vessels about to
use the berths.
Id. at 433.
Therefore, a wharfinger must warn the ship captain about
such hidden dangers as underwater obstacles in the approach and
latent structural defects in the wharf. See, e.g., Burnett, 173
U.S. 430 (duty to warn of the depth limitations at the berth);
Medomsley Steam Shipping Co. v. Elizabeth River Terminals, 354 F.2d
476 (4th Cir. 1966) (duty to warn of defective mooring cleat); The
Cornell No. 20, 8 F. Supp. 431 (S.D.N.Y. 1934) (duty to warn of
sunken vessel lying in the approach to wharf).
It is well established that a wharfinger has no duty to
warn of open and obvious conditions that can be reasonably
ascertained by a vessel. See, e.g., Bunge Corp. v. M/V Furness
Bridge, 558 F.2d 790 (5th Cir. 1977) (holding that a wharfinger's
duty to warn only applies to hidden hazards or deficiencies not
reasonably known to the shipowner), cert. denied, 435 U.S. 924
(1978); Mutual Rights and Obligations, supra, at 568-69 ("[A]
wharfinger is only required to warn the vessel of hidden dangers
known to the wharfinger, or which the exercise of reasonable care
and an inspection should have made known to him.").
Because most weather conditions are open and obvious, and
can be discovered with reasonable diligence, a wharfinger does not
have a duty to warn of such dangers. See, e.g., Pacific Alaska
Fuel Servs. v. M/V Miyoshima Maru, 1994 AMC 2601, 1994 WL 739434
(D. Alaska 1994) (no duty to warn of existing conditions of tide,
current, or weather); Bangor & A.R.R. v. Ship Fernview, 455 F.
Supp. 1043, 1062 (D. Me. 1978) ("[A] wharfinger is under no duty to
advise an approaching vessel of weather reports . . . which are
readily apparent to the ship."); Bunge, 558 F. Supp. at 799-800
(refusing to find a wharfinger negligent for urging a vessel to
dock at night and in the fog).
Ice floes are an open and obvious condition. The
superior court held that the City had not breached a duty to the
Alaskan Monarch because "[i]ce conditions inside and outside the
harbor were open and obvious meteorological phenomena." The
Linseed King, 285 U.S. 502 (1932), lends support to our conclusion
that the ice conditions encountered by the Alaskan Monarch were not
hidden hazards or latent defects. The Court found that ice
conditions "could have been ascertained . . . if he had used
reasonable diligence"and thus held that an employer had privity of
knowledge of the ice conditions of the river across which his
employees were ferried to work. Id. at 512.
With reasonable diligence, the Alaskan Monarch could have
learned of prevailing meteorological conditions outside the harbor.
The Alaskan Monarch was in contact with PIP and other vessels. The
record indicates that Captain Hansen was aware of the ice
conditions when the Alaskan Monarch was proceeding towards the
harbor but before it became stuck. At a point where Hansen
characterized the ice as being "[n]ot too bad"at the Alaskan
Monarch's location, he knew that at least one vessel further in was
trapped. He decided to proceed anyway. Because Hansen possessed
sufficient information to put him on notice of the conditions, and
because he could have obtained more information with reasonable
diligence, the ice was not a hidden hazard.
West claims that ice is categorically different from
other meteorological conditions because "a vessel might find itself
imperiled before it can reverse course." West's recitation of the
facts belies that argument. According to West, when the Alaskan
Monarch first encountered ice West suggested to Hansen that they
reverse course and offload at an ocean-going tender. Hansen, who
received but rejected West's suggestion, and who attempted to reach
the harbor through the ice by following the wake of a larger
outbound vessel, was necessarily aware of the conditions when he
made his navigational decisions. Such decisions are within the
special purview of the ship's master, and a wharfinger has no duty
to invade this area of expertise to warn of possible dangers. See,
e.g., Brown v. Link Belt Div. of FMC Corp., 666 F.2d 110, 113 (5th
Cir. 1982) ("These cases reflect the court's recognition that
normally the master of a ship has the final say so in deciding what
risks posed by the weather and the condition of his ship will be
assumed.") (citing The Linseed King, 285 U.S. at 511-12); Bunge,
558 F.2d at 802 ("Those in control of the vessel's navigation must
bear the greater responsibility for bringing their ship safely into
and out of port. The dock owner's liability should extend only so
far as the vessel's master could not have averted an accident.").
In support of his argument that the wharfinger had a duty
to warn of the ice conditions, because the ice was a latent or
hidden hazard, West cites Cement Division, National Gypsum Co. v.
City of Milwaukee, 915 F.2d 1154 (7th Cir. 1990), cert. denied, 499
U.S. 960 (1991). In that case, the court apportioned liability at
two-thirds for the shipowner and one-third for the wharfinger after
a ship tore loose from its moorings in an outer harbor slip during
a violent winter storm. West argues that National Gypsum shows
that there are particular weather-related circumstances that will
give rise to the duty to warn, if the meteorological hazard is not
the type that would be apparent to the shipmaster.
The City counters that National Gypsum did not premise
its finding of wharfinger liability on a duty to warn of weather
conditions; rather, the City argues, liability flowed from a breach
of the most elemental of a wharfinger's duties, the duty to furnish
a safe berth.
In National Gypsum, the Seventh Circuit upheld the
district court's finding of wharfinger negligence "for failing to
warn the ship that wind and wave conditions could develop which
would endanger the vessel . . . and for failing to order that the
ship remain manned or move off the berth." 915 F.2d at 1157. In
upholding the lower court's findings of negligence and breach of
warranty for a safe berth, the court imposed no duty to warn of
conditions that could arise outside the harbor and assigned slip.
Id. It is reasonable to read National Gypsum as the City proposes,
i.e., liability there arose from the wharfinger's duty to provide
a safe berth. The case does not stand for a general duty to warn
of weather conditions. (National Gypsum would not support West's
position in any event because the Alaskan Monarch became entrapped
in ice well outside the harbor entrance.)
We conclude that the harbormaster had no duty to warn the
Alaskan Monarch of the danger of the ice, because the ice was an
open and obvious meteorological condition.
C. Evidence of Custom and Practice
West contends that the superior court failed to consider
"custom and practice"evidence about granting clearances into the
harbor.
To avoid summary judgment once a movant has made out a
prima facie case, the non-movant must set forth specific facts
reasonably tending to dispute or contradict the movant's evidence
and demonstrating the existence of a material issue of fact.
Howarth v. First Nat'l Bank of Anchorage, 540 P.2d 486, 489-90
(Alaska 1975); Alaska R. Civ. P. 56(e). Conclusory statements in
opposing affidavits are not sufficient to defeat a summary judgment
motion. (EN4) Ratcliff v. Security Nat'l Bank, 670 P.2d 1139, 1142
n.6 (Alaska 1983). See also Taylor v. List, 880 F.2d 1040, 1045
n.3 (9th Cir. 1989).
We have recognized custom in other maritime cases where
it is supported by the record. Jensen v. Goresen, 881 P.2d 1119,
1122-23 (Alaska 1994) (recognizing that seine fishers in Alaska
have a custom of never entering another vessel's circled seine).
Custom is defined as
[a] usage or practice of the people, which by
common adoption and acquiescence, and by long
and unvarying habit has become compulsory, and
has acquired the force of law with respect to
the place or subject matter to which it
relates. It results from a long series of
actions, constantly repeated, which have, by
such repetition and by uninterrupted
acquiescence, acquired the force of a tacit
and common consent.
Black's Law Dictionary 385 (6th ed. 1990) (citation omitted).
The evidence of custom and practice which West contends
the superior court improperly failed to consider consists of a
statement in the affidavit of PIP's plant manager Brett Wagner that
The custom and practice in St. Paul harbor in
March 1990 was that clearance to enter St.
Paul harbor would not be given if ice
conditions prevented a safe entry into the
harbor.
West relies solely on this conclusory passage and did not produce
specific facts to support the existence of a genuine issue of fact.
Given well-established limits on a wharfinger's duty to warn, such
a conclusory assertion is insufficient to establish a genuine fact
dispute about any assumption of a duty extending beyond the harbor.
The superior court did not err in refusing to infer the existence
of a custom and took all reasonable inferences in favor of the non-
movant, West. (EN5)
IV. CONCLUSION
Because the ocean ice was an open and obvious condition
for which a wharfinger has no duty to warn, we AFFIRM the superior
court's grant of summary judgment against Charles West.
ENDNOTES:
1. There was a dispute about where the Alaskan Monarch first
encountered ice; Hansen's estimate, that it was one and one-half
miles from the harbor entrance, is more favorable to West's
position. Because we take all reasonable inferences in favor of
the non-movant, West, we use Hansen's estimate of one and one-half
miles. See Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994).
2. The distance from the harbor to the point where the Alaskan
Monarch became stuck is not clear. The superior court's opinion
appears to assume ice trapped the Alaskan Monarch between one, and
one and one-quarter miles from the harbor. The City cites to
Hansen's and West's depositions to support a distance of six-tenths
of a mile. In his deposition, Captain Hansen used that figure to
approximate how close the Alaskan Monarch was getting to a jetty
when he made the decision to stop trying to maneuver the vessel out
of the ice. In his deposition, West testified that the Alaskan
Monarch was roughly 200 yards from the harbor when Hansen attempted
to turn the vessel around and they realized they were in trouble.
3. A wharfinger is "the owner or occupier of a wharf."Black's
Law Dictionary (6th ed. 1990). See Bangor & A.R.R. v. Ship
Fernview, 455 F. Supp. 1043, 1062 n.52 (D. Me. 1978). The parties
agree that the City, through its harbormaster, was a wharfinger and
that the harbormaster's alleged negligence is determined by federal
maritime law principles governing wharfinger liability.
4. On this issue, the City cites Lipari v. Kawasaki Kisen Kaisha,
Ltd., 1991 AMC 2645, 2648-49, 1991 WL 3060 (9th Cir. 1991) (ruling
that a conclusory statement was not enough to establish a custom in
a maritime case). Because Lipari is an unpublished memorandum
decision issued under Ninth Circuit Rule 36-3, we do not cite it
for support on this issue.
5. West also argues that the superior court only acknowledged one
of three conversations that occurred between the Alaskan Monarch
and the harbormaster and did not consider evidence of the allegedly
hung-over condition of the harbormaster. Because we find that the
wharfinger owed no duty to the Alaskan Monarch, these facts are
not material and were properly ignored by the superior court.
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