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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Janes v. Alaska Railbelt Marine, LLC (9/20/2013) sp-6829
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, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SEAN A. JANES and JENNIFER M. )
JANES, Individually, and as Parents )
Supreme Court No. S-14593
and Guardians of LINDIE R. JANES, )
KAMERON S. JANES, KOLTEN J. )
Superior Court No. 3AN-08-11544 CI
JANES, and SIENNA M. JANES, )
)
O P I N I O N
Appellants, )
)
No. 6829 - September 20, 2013
v. )
)
ALASKA RAILBELT MARINE, LLC,)
ALASKA MARINE LINES, INC., )
LYNDEN INCORPORATED, )
NORTHLAND SERVICES, INC., )
and WESTERN TOWBOAT )
COMPANY, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sharon Gleason, Judge.
Appearances: Brett von Gemmingen, Law Offices of Brett
von Gemmingen, LLC, Anchorage, for Appellants. Thomas
G. Waller and Mark Krisher, Bauer Moynihan & Johnson
LLP, Seattle, Washington, for Appellees.
Before: Fabe, Chief Justice, Stowers, and Maassen, Justices,
----------------------- Page 2-----------------------
*
and Eastaugh, Senior Justice. [Carpeneti, Justice, and
Winfree, Justice, not participating.]
EASTAUGH, Senior Justice.
I. INTRODUCTION
Sean Janes, a railroad conductor, was injured while railcars were being
loaded onto a barge built to transport railcars and non-rail cargo at the same time. The
railcars were rolling on tracks which ran from the stern to the bow of the barge. As the
railcars approached non-rail cargo that had been placed across the tracks, Janes's
supervisor ordered him to "dump it," i.e., engage the railcars' emergency brakes. Janes
then moved in front of the lead railcar and engaged the emergency brakes. But he was
unable to withdraw and was badly injured when the lead railcar pinned him against the
non-rail cargo.
Janes and his family sued the barge owner, alleging that placing cargo
across the tracks and failing to provide devices to stop moving railcars from hitting the
non-rail cargo made the barge unseaworthy under federal maritime law. After a bench
trial, the superior court found that the barge was reasonably fit for its intended purpose
and that Janes had not proved that the barge was unseaworthy. On appeal, Janes argues
that the court erroneously rejected his unseaworthiness claim. Because the superior
court's findings of fact were not clearly erroneous and because the court committed no
legal error, we affirm.
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
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II. FACTS AND PROCEEDINGS
A. Facts
1. Overview
On November 2, 2006, Sean Janes was employed by the Alaska Railroad
Corporation and was part of an Alaska Railroad crew loading railcars onto a barge, the
1
FAIRBANKS PROVIDER , in Whittier. Janes was the conductor during the loading
operation.
2. The FAIRBANKS PROVIDER
The FAIRBANKS PROVIDER is owned and operated by Alaska Railbelt
Marine (ARM), a subsidiary of Lynden Incorporated. It was one of three barges
2
The request
designed and built in response to an Alaska Railroad request for proposal.
required that the barges be able to carry railcars and non-rail deck cargo at the same time.
It also required the design to include a lashing system to secure the railcars.
The FAIRBANKS PROVIDER entered service sometime between 2000 and
2002. It is a flat-deck cargo barge; it is approximately 400 feet long; eight parallel sets
of railroad tracks run from its stern to a head block and breakwater near the bow of the
barge. The tracks are used to load and transport railcars. In part to improve the barge's
structural integrity and eliminate the tripping hazard T-shaped rail would have created,
the tracks are flat-bar rail, rather than standard T-shaped rail. A fixed coupler (consisting
of a car bumper and a knuckle, the mechanism used to couple railcars together) at the
forward end of each track is connected to a head block, slightly aft of the breakwater.
1 The superior court conducted a bench trial. Our description of the barge
and the accident is based on the trial evidence.
2 ARM was created by Lynden Incorporated to carry out its proposal to build
and operate the rail barges requested by the Alaska Railroad in its request for proposal.
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The exact purpose of the fixed couplers was disputed at trial, but they were at least a
lashing mechanism to hold the railcars in place during transit.
Non-rail cargo is placed across some of the tracks in leased deck space near
the bow of the barge; placing cargo across the tracks prevents railcars from reaching the
fixed couplers for those tracks. When the barge was being designed, ARM and the naval
architect, Michael Whalen, discussed the possibility of building portable couplers that
could be placed aft of the non-rail cargo. Whalen's firm hired a third party to design
portable couplers mimicking the fixed couplers. But, as Lynden Chief Operating Officer
Jonathan Burdick and Lynden's port engineer George Williamson testified, Lynden was
concerned that it was not practical to attach portable couplers to flat-bar rail and that
portable couplers might break if hit by railcars. ARM therefore decided not to build
portable couplers. The intended purpose of the proposed but rejected portable couplers
was disputed; ARM's witnesses described them as couplers that would simplify
immobilization of the railcars during transport and denied that they were intended to stop
rolling railcars during loading. There was evidence that some engineering drawings of
the proposed devices referred to them as "portable track stops," potentially implying that
they were intended to stop rolling railcars. In practice, lashing mechanisms, including
chains, jacks, and rail chocks, were used to secure railcars that were not coupled to the
fixed couplers after they were loaded aboard.
3. Loading railcars onto the barge
An Alaska Railroad crew loads the railcars onto the barge. The crew
includes a conductor, a brakeman, an engineer, and a supervisor; there is also a slip
operator who controls the slip (the rail-bearing ramp that runs from shore to the barge);
they communicate by radio. Each railcar is approximately 50 feet long. The number of
railcars to be loaded onto a given track depends in part on the placement of any non-rail
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cargo. Using the radio, the conductor directs the movement of the railcars by telling the
engineer in the locomotive what to do.
During loading, tracks on the slip are aligned with the barge's tracks and
the string of railcars is pushed backwards onto the barge by a locomotive or locomotives.
Because the locomotive is at the front of the string and backs the string onto the barge,
the last railcar in the string is the first car onto the barge. We will sometimes refer to this
railcar as the string's "lead" car during loading. The string includes the railcars being
loaded onto a particular set of tracks and the railcars still to be loaded onto other tracks.
The string's movement is controlled primarily by the locomotive. When
the locomotive stops, railcars in the string can continue to roll forward (toward the bow
of the barge) until the couplings between the railcars completely stretch out; this
phenomenon is called "slack." The coupler at each end of a railcar can permit eight
inches of slack, so the couplers joining two cars can permit up to 16 inches of slack when
the couplers are completely stretched out. The total amount of slack for the string
depends on the number of cars. To stop a string of railcars precisely, slack must be
controlled.
Three systems are potentially available to brake the string of railcars: (1)
the locomotive's independent brake, which is the only brake system that, per Alaska
Railroad operating rules, is supposed to be used when loading a barge; (2) a dynamic
braking system; and (3) the airbrake system, an emergency braking system that connects
and actuates the airbrakes on each railcar; it is not to be used on a barge. The emergency
airbrake system can be engaged either from the locomotive or by turning an angle cock
at the leading end of the lead railcar.
In addition, each individual railcar has its own separate handbrake that can
be engaged by a wheel at the end of the railcar to provide variable braking force to that
railcar; the braking power of the car's handbrake depends on how tightly the brake is
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----------------------- Page 6-----------------------
"tied." Tying the handbrake of the lead railcar can eliminate slack and "bunch" the
railcars in the string as the locomotive pushes the railcars into the resistance created by
the lead railcar's handbrake.
It was undisputed that it is Alaska Railroad policy to perform a safety stop
when the leading end of the lead railcar is a railcar length, approximately 50 feet, from
the final stopping point to control the slack when loading a string of railcars. Per railroad
policy, the maximum speed during loading is three miles per hour. There was evidence
at trial that in actual practice, loading speeds are lower than that.
If there is no non-rail cargo across a track, the string is attached to the
track's fixed coupler by slowly pushing the lead railcar's coupler into the fixed coupler.
If non-rail cargo has been placed across the track, the railcars must be stopped within
three to five feet of the non-rail cargo. In their final position, the railcars must be
bunched together to eliminate slack. The railcars are then lashed down with chocks and
chains for transport. After a track is loaded, the string of railcars is cut down and, if
necessary, the slip is moved to align it with the next track so railcars can be pushed
aboard on that track.
4. The accident
On the day of the accident, Janes was the conductor; he used a radio to
direct the movement of the railcars onto the barge. Non-rail cargo had been placed
across the tracks in the leased cargo space. Jason Dennis, Janes's supervisor, oversaw
the loading process.
While loading Track 5, Janes and Dennis were near the non-rail cargo on
the barge. Six railcars were supposed to be loaded onto Track 5. By radio, Janes
successfully directed the engineer to perform a routine safety stop when the string's lead
car was approximately 50 feet from the non-rail cargo on Track 5. Janes successfully
directed a second safety stop when the lead railcar was approximately 15 feet from the
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non-rail cargo. Janes was then informed by his brakeman that they needed to move ten
more feet of the string aboard to fit the six railcars onto Track 5. Janes tied a "slight"
handbrake on what was apparently the closest car to the deck cargo to control and bunch
the railcars and then directed the engineer to continue pushing, i.e., to continue pushing
the string onto the barge. There is some dispute about what happened next, and exactly
what Janes told the engineer to do after this push. Janes testified that when the lead
railcar was 10 to 12 feet from the cargo, he told the engineer to "plug it," i.e., to use the
emergency airbrake to stop the train. Although Janes thought there should have been
time for the engineer to pull the lever for the emergency airbrake, the engineer did not
respond, or was not responding fast enough. Dennis, realizing that the train was going
to hit the non-rail cargo, yelled at Janes two or three times to "plug it" or "dump it," i.e.,
to engage the emergency airbrake system using the angle cock at the far end of the lead
railcar. Janes, who had been standing beside the lead railcar, moved to the front of that
railcar and turned its angle cock to engage the emergency airbrake. But after doing so,
he could not withdraw in time, and he was pinned between the lead railcar and the non-
rail cargo and was badly injured.
Railroad safety policies prohibit employees from approaching or going in
front of a moving railcar. Using the airbrake on the barge is also against railroad
operating rules. There was overwhelming evidence, undisputed at trial, that the actions
of Janes and his supervisor in trying to stop the string with the emergency airbrakes on
the barge went against almost every operating rule of the railroad.
B. Proceedings
Janes and his family (collectively, Janes) sued ARM and others for
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----------------------- Page 8-----------------------
3
negligence and unseaworthiness. Superior Court Judge Sharon Gleason conducted a
bench trial in 2011. In his opening statement on the first day of trial, Janes's attorney's
comments regarding seaworthiness focused on ARM's failure to provide "portable track
stops" to prevent railcars from rolling into the cargo that obstructed the fixed couplers.
The superior court then heard testimony from ten witnesses and received deposition
testimony from six others. The witnesses included Janes; persons who witnessed the
accident; railroad employees; personnel involved in the design, loading, and operation
AIRBANKS PROVIDER ; and experts in naval architecture and safety. The superior
of the F
court also admitted more than 75 exhibits into evidence, including the Alaska Railroad's
request for proposal, diagrams of the design specifications for the barge and the couplers,
and the railroad's operation and safety manuals.
In his closing argument, Janes's counsel contended that if there was "too
much slack," the lead railcar would hit the cargo. He argued that because the solution
to "too much slack" was allowing the lead railcar to hit the cargo, the barge was not
reasonably fit to carry cargo. He also argued that the failure to provide devices to stop
the movement of railcars made the barge unseaworthy. After trial, Janes submitted
proposed unseaworthiness findings of fact and conclusions of law that focused on the
failure to provide devices to stop railcars from rolling into deck cargo. The proposed
conclusions identified two conditions that rendered the FAIRBANKS PROVIDER
unseaworthy: (1) the "foul[ing of] the railroad tracks with deck cargo, [which]
prevent[ed] the railcars from reaching the [fixed couplers] at the bow of the barge," and
3 Only the unseaworthiness claim against ARM is at issue in this appeal. The
other defendants at trial were Lynden Incorporated (ARM's parent company); Alaska
Marine Lines, Inc. (which chartered deck cargo space and was responsible for lashing
its own cargo); Northland Services, Inc. (which leased deck cargo space and was
responsible for lashing railcars by agreement with the Alaska Railroad); and Western
Towboat Company (owner and operator of the tugboat for the FAIRBANKS PROVIDER).
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(2) the absence of any "portable track stops" to prevent the railcars from hitting the non-
rail cargo placed across the tracks. The proposed findings reasoned that without a
stopping device, the loading process was unsafe because the railcars could not be
precisely stopped. Janes asked the court to find that the fixed couplers, and the portable
couplers considered during the barge's design process, were intended to stop a moving
string of railcars. And he asked the court to find that even if a portable coupler could not
stop a string of railcars, a portable track stop would have eliminated the possibility that
Janes would engage the airbrake to prevent the railcars from hitting the non-rail cargo.
The defendants' core arguments regarding the unseaworthiness claim were
that: (1) the railroad's procedures for loading railcars were effective and safe without a
stopping device; (2) the barge's fixed couplers were not stopping devices and therefore
obstructing them with deck cargo did not make the barge unseaworthy; (3) the portable
couplers considered and rejected during the barge design were lashing devices and were
not a viable or safe means of stopping railcars; (4) plaintiffs presented no credible
evidence that there was a portable track stop device capable of stopping a moving string
of railcars; and (5) it was not foreseeable that Janes's supervisor would give, and that
Janes would obey, an order to place himself in front of the moving string of railcars to
engage the angle cock.
C. The Superior Court's Rulings
The superior court ruled for the defendants on both the negligence and
unseaworthiness claims.
As to the unseaworthiness claim, the superior court concluded that Janes
AIRBANKS
had "failed to demonstrate by a preponderance of the evidence that the barge F
PROVIDER was unseaworthy." It found that "[t]he FAIRBANKS PROVIDER was reasonably
fit for its intended purpose of transporting rail, containerized and breakbulk cargo
between Whittier and Seattle."
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To support these rulings the superior court made a number of factual
findings regarding the procedure and equipment for loading and stopping railcars on the
barge. It found that the barge's design required that non-rail cargo be placed at the bow
of the vessel, across the tracks. It found that the barge's fixed couplers were intended
to be used only as lashing devices and were not designed to stop a moving string of
railcars. It found that the railroad was "fully capable of safely stopping railcars without
the aid of or need for additional stopping devices aboard the rail barges." It found that
the railroad's procedures had "proven to be an effective and reasonably safe means to
control and stop" the railcars. It found that on the day of the incident, it was more likely
than not that the slack between the railcars had been removed in the final safety stop. It
found that Janes had not demonstrated that safer alternatives for stopping the railcars
existed. Because Janes had not shown that a portable coupler would have been able to
stop a string of moving railcars, the court was unpersuaded that a portable coupler would
have prevented Janes's injury.
The court also made a number of findings regarding causation. It found
that, even if Janes had shown the existence of an unseaworthy condition,
unseaworthiness did not proximately cause Janes's injuries. It found that it was not
foreseeable that Janes's supervisor would give and that Janes would obey an order to
engage the emergency brake on the lead railcar, violating railroad policy and
jeopardizing Janes's personal safety, to protect cargo. It found that the supervisor's
unforeseeable order, not any unseaworthy condition, was the proximate cause of Janes's
injuries. The court also found that any unseaworthy condition created by Janes's
supervisor's negligently given order "was instant and therefore not a proper basis for
recovery."
Janes's appeal arguments address only his claim of unseaworthiness.
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III. STANDARD OF REVIEW
An unseaworthiness claim asserts a federal maritime tort; federal
4
substantive law therefore controls. "The application of maritime remedies involves
mixed questions of law and fact. We review the superior court's factual findings under
5
the clearly erroneous standard but review questions of law de novo." A factual finding
is clearly erroneous if, after studying the record, we are "left with a definite and firm
6
conviction that a mistake has been committed." Whether an unseaworthy condition
exists generally presents a question of fact.7
8
We review a superior court's evidentiary rulings for abuse of discretion.
We will only reverse evidentiary rulings that are both erroneous and prejudicial.9
4 Brown v. State , 816 P.2d 1368, 1371 (Alaska 1991) (citing Barber v. New
England Fish Co. , 510 P.2d 806, 808 (Alaska 1973)) (applying federal law to plaintiff's
unseaworthiness claims under the Jones Act (current version at 46 U.S.C. § 30104
(2006))).
5
Cavin v. State, Fish & Wildlife Prot. Div. of the Dep't of Pub. Safety, 3 P.3d
323, 326 (Alaska 2000) (citing Moody-Herrera v. State, Dep't of Natural Res. , 967 P.2d
79, 82 (Alaska 1998)) (applying those standards in reviewing judgment denying state
employee's maritime claims, including common law unseaworthiness claim).
6
McAllister v. United States , 348 U.S. 19, 20 (1954); Peterson v. Ek , 93 P.3d
458, 465 (Alaska 2004).
7
Folger Coffee Co. v. Olivebank , 201 F.3d 632, 636 (5th Cir. 2000); Jordan
v. U.S. Lines, Inc., 738 F.2d 48, 50 (1st Cir. 1984).
8 Bierria v. Dickinson Mfg. Co. , 36 P.3d 654, 657 (Alaska 2001).
9
Schofield v. City of St. Paul, 238 P.3d 603, 606 (Alaska 2010) (citing Noffke
v. Perez , 178 P.3d 1141, 1148 (Alaska 2008)).
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IV. DISCUSSION
A. The Superior Court Did Not Err In Ruling That The Barge "Was
Reasonably Fit For Its Intended Purpose" And That It Was Not
Shown To Be Unseaworthy.
Vessel owners have an absolute and nondelegable duty to provide a
10
seaworthy ship.
To make out an unseaworthiness claim, plaintiffs must establish that:
(1) the warranty of seaworthiness extended to them and their duties;11 (2) their injury was
caused by the ship or its equipment or appurtenances; (3) an unseaworthy condition
existed on the vessel, its equipment, or appurtenances; and (4) the unseaworthy condition
12
If a plaintiff fails to establish any one of these
was a proximate cause of their injuries.
elements, the unseaworthiness claim must fail.13
Janes argues that in rejecting his unseaworthiness claim, the superior court
committed various errors, most of which he characterizes as legal errors. He argues that
10 Seas Shipping Co. v. Sieracki , 328 U.S. 85, 90 (1946); see also Williams
v. Municipality of Anchorage, 633 P.2d 248, 251 (Alaska 1981) ("The idea of
seaworthiness and the doctrine of implied warranty of seaworthiness arises out of the
vessel, and the critical consideration in applying the doctrine is that the person sought
to be held legally liable must be in the relationship of an owner or operator of a vessel."
(quoting Daniels v. Fla. Power & Light Co. , 317 F.2d 41, 43 (5th Cir. 1963))).
11 Sieracki, 328 U.S. at 99 (holding that the warranty of seaworthiness extends
to any worker injured while "doing a seaman's work and incurring a seaman's hazards");
see also Cavin v. State, Fish & Wildlife Prot. Div. of the Dep't of Pub. Safety, 3 P.3d 323,
330-32 (Alaska 2000) (holding that the Sieracki remedy is still available to those not
covered by the 1972 amendments to the Longshore and Harbor Workers' Compensation
Act).
12 Ribitzki v. Canmar Reading & Bates, Ltd. , 111 F.3d 658, 664 (9th Cir.
1997); THOMAS J. SCHOENBAUM , ADMIRALTY AND MARITIME LAW § 6-25 (5th ed.
2011).
13 See Ribitzki, 111 F.3d at 664-65.
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----------------------- Page 13-----------------------
the court failed to take into account the nondelegable nature of the warranty of
seaworthiness, and that ARM consequently should have been held liable as a matter of
law for unseaworthy conditions created by the railroad during the loading process. He
argues that - contrary to the superior court's finding that the barge was reasonably fit
for its intended purpose - the barge was unseaworthy as a matter of law because
allowing railcars to roll too far forward endangered the cargo, rendering the barge unfit
for its intended purpose. He argues that "unrebutted evidence" establishes the barge's
unseaworthy condition. He argues that the court mis-allocated the burden of proof
concerning the feasibility of portable couplers in stopping rolling railcars. And he argues
that the court's findings regarding the effectiveness of portable stopping devices were
clearly erroneous.14
These arguments, including those that assert legal errors, largely turn on
whether the court's factual findings were clearly erroneous.
Several preliminary comments are appropriate.
First, as ARM points out, Janes has advanced new theories of liability on
appeal that he did not argue at trial. Generally, we will not consider new theories of
15
liability first raised on appeal. Janes argued in the superior court that two specific
14 Our resolution of these arguments makes it unnecessary to consider Janes's
additional contention that the superior court erred in finding that any assumed
unseaworthy condition was not the proximate cause of Janes's injuries.
We likewise do not need to consider ARM's alternative arguments that the
warranty of seaworthiness did not extend to Janes, or that the exclusive remedy provision
of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §
905(b) (2006), barred Janes's unseaworthiness claim.
15
Pitka v. Interior Reg'l Hous. Auth. , 54 P.3d 785, 788-89 (Alaska 2002) ("In
general, parties cannot advance new theories or raise new issues in order to secure a
reversal of the lower court's determination." (quoting O'Neill Investigations, Inc. v. Ill.
(continued...)
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----------------------- Page 14-----------------------
conditions made the vessel unseaworthy. It was in that factual context that the parties
tried the case and asked the trial court to rule. We will therefore review the trial court's
rulings in light of the two specific conditions Janes alleged in his opening statement at
trial and explained more fully in his proposed findings and conclusions: (1) the "foul[ing
of] the railroad tracks with deck cargo, [which] prevent[ed] the railcars from reaching
the [fixed couplers] at the bow of the barge," and (2) the absence of any "portable track
stops" to prevent the railcars from hitting the non-rail deck cargo.16
Second, contrary to Janes's contention here, the superior court did not
ignore the nondelegable nature of the warranty of seaworthiness. Its rulings demonstrate
that the court recognized that ARM could be held liable for unseaworthy conditions
created by others, including the railroad. Thus, it stated that ARM had an "absolute duty
to provide a seaworthy vessel." And it characterized as "instant" - and "therefore not
a proper basis" for an unseaworthiness claim against ARM - "[a]ny unseaworthy
condition" created by Janes's supervisor when he negligently ordered Janes to "dump
15 (...continued)
Emp'rs Ins. , 636 P.2d 1170, 1175 n.7 (Alaska 1981) (internal quotation marks omitted)).
In Pitka we declined to consider arguments Pitka did not raise in the superior court, and
stated that "[i]n order to determine whether the 'new' arguments will be considered here,
we ask whether they were raised expressly below and, if not, whether they are closely
related to the trial court arguments and could have been gleaned from the pleadings."
Pitka , 54 P.3d at 788; see also City of Hydaburg v. Hydaburg Coop. Ass'n , 858 P.2d
1131, 1136 (Alaska 1993).
16 We therefore will not consider Janes's appellate contentions that the
absence of devices other than portable track stops or couplers - such as a device to
engage the emergency airbrakes remotely - rendered the barge unseaworthy. At trial
there was evidence about the remote-control device, but Janes did not argue, or ask the
superior court to find, that the failure to provide or use that device on the FAIRBANKS
PROVIDER made the barge unseaworthy.
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----------------------- Page 15-----------------------
it." That was an implicit recognition by the superior court that ARM could have been
17
held liable for an unseaworthy condition created by the railroad.
1. The record supports the superior court's factual findings.
An unseaworthy condition exists if the vessel, including its equipment and
18
appurtenances, is not reasonably fit for its intended use. The warranty of seaworthiness
19
extends to a vessel's fitness for loading and unloading. Various circumstances can
20
render a vessel unseaworthy, including unsafe work methods or a lack of safety
equipment.21
17 The superior court permissibly found that any such condition attributable
to the railroad was "instant"; Janes does not argue that the court erred in concluding that
an instant condition would not have been actionable. See Luckenbach Overseas Corp.
v. Usner, 413 F.2d 984, 985-86 (5th Cir. 1969), aff'd, Usner v. Luckenbach Overseas
Corp., 400 U.S. 494 (1971) (holding that a vessel is not rendered unseaworthy as a result
of "the instantaneous negligence of stevedores"). The court's discussion of instant
unseaworthiness potentially arising from the supervisor's order did not interfere with its
separate consideration, and rejection, of Janes's claims that placing cargo across Track 5
or failing to provide stopping devices created unseaworthy conditions. Moreover, Janes
never contended that the negligently given order rendered the barge unseaworthy.
18 Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 213 (1963) ("[All] things
about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage,
or the cargo containers, must be reasonably fit for the purpose for which they are to be
used."); Mitchell v. Trawler Racer, Inc. , 362 U.S. 539, 550 (1960).
19 Gutierrez, 373 U.S. at 213 (citing Seas Shipping Co. v. Sieracki, 328 U.S.
85, 96 (1946)).
20
Morales v. City of Galveston, Tex. , 370 U.S. 165, 170 (1962) ("A vessel's
unseaworthiness might arise from any number of individualized circumstances. Her gear
might be defective, her appurtenances in disrepair, her crew unfit. The method of
loading her cargo, or the manner of its stowage, might be improper.").
21
E.g. , Salem v. U.S. Lines Co., 370 U.S. 31, 36 (1962) (suggesting that lack
(continued...)
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We set out above the superior court's fact findings most relevant to the
unseaworthiness claim. The superior court concluded that Janes failed to demonstrate
that the barge was unseaworthy; it ultimately ruled that the barge "was reasonably fit for
its intended purpose of transporting rail, containerized and breakbulk cargo between
Whittier and Seattle." It consequently rejected Janes's seaworthiness claim.
Janes argues that the superior court clearly erred in finding that the
AIRBANKS PROVIDER was seaworthy. Janes reasons that because evidence showed that
F
railcars often rolled too far forward and that there was nothing to prevent them from
rolling into the deck cargo, "the cargo is not safe onboard the vessel"; from this he
concludes that the barge was not reasonably fit for its intended purpose. According to
Janes, unrebutted expert testimony established that the loading process was not safe
without the use of track stop devices.
We conclude that ample evidence supported the court's factual findings
about the safety of the loading process and the barge's seaworthiness. Adequate,
creditable trial evidence rebutted Janes's assertion that railcars could not be safely
stopped. For example, Janes's supervisor at the time of the accident testified that a
conductor could stop a string of railcars within inches or feet of where it needs to be.
Janes's supervisor testified that the railroad's conductors and engineers would typically
put the railcars within three to five feet of the deck cargo.
Janes presented evidence that slack in the railcars' couplers, if not
controlled, could permit the railcars to continue to roll forward after the locomotive's
brakes were engaged. But there was also evidence about the effectiveness of the
21 (...continued)
of safety equipment may render a vessel unseaworthy); Tucker v. Calmar S.S. Corp., 457
F.2d 440, 446 (4th Cir. 1972) (unsafe cargo loading method rendered vessel
unseaworthy).
-16- 6829
----------------------- Page 17-----------------------
railroad's loading procedures in controlling and eliminating slack and stopping a string
safely. These procedures required railroad employees to perform a safety stop
approximately 50 or 60 feet from the final stopping point to ensure that the string of
railcars was under control. The railroad's crew successfully performed the 50-foot safety
stop on this occasion. Janes testified that the crew also successfully performed a second
safety stop, 15 feet from the deck cargo. There was evidence about using braking
mechanisms to control slack. Janes testified that during the 15-foot safety stop he had
tied the handbrake on the lead railcar to bunch the railcars to control the slack. The court
found "on a more likely than not basis that the slack between the cars had been
removed." The court did not clearly err in so finding. That finding resolved any
contention that slack had created an unseaworthy condition or had contributed to Janes's
accident.
Moreover, Janes's supervisor, who had six years of experience on railcar
barges at the time of the accident, testified that no physical stopping device was
necessary to safely stop the railcars because their movement could be controlled with just
the locomotive and railcars. Tugboat captain Dwaine Whitney had worked for five years
with ARM and had also been employed by two other companies to captain tugboats
towing railcar barges. He testified, based on his experience working with ARM and with
other railcar barges, that couplers were not stopping devices; he testified that no device
"built by man" could stop moving railcars on the barge deck. He testified that instead
of stopping the string, any device placed on the tracks would cause the cars to derail,
resulting in damage to the railcars and the barge deck. Whitney further explained that
other companies employed the same methods to stop a string of railcars during loading:
performing a safety stop and then pushing the string back to a final position.
Janes presented little evidence that the loading procedures employed by the
railroad were dangerous and adduced no evidence of any other injuries sustained during
-17- 6829
----------------------- Page 18-----------------------
loading or instances in which the railcars had hit cargo containers. The superior court
found that no evidence was presented of any other injuries involving persons or property
from loading railcars on the Whittier barges, and Janes's appeal does not challenge this
finding. The superior court's finding that the railroad was capable of safely stopping a
string of railcars without track stop devices was amply supported by the evidence.
Even if, as Janes argues, there was a risk the railcars could hit the cargo, the
evidence was sufficient to support the superior court's finding that the loading process
was reasonably safe. Janes claimed that the risk to cargo could cause employees, like
Janes, to endanger themselves in attempting to save the cargo by engaging the
emergency brake. But there was ample evidence that rigorous railroad procedures
prevented employees from endangering themselves in that way. Thus, the railroad's
safety procedures clearly prohibited employees from going in front of or even
approaching moving railcars. And engaging the airbrake on the barge was prohibited.
Railroad policy thus mitigated any inherent risk of injury from loading the railcars. As
the United States Supreme Court has recognized, a vessel owner's failure to eliminate
every possible hazard does not necessarily make the vessel unseaworthy.22
Janes refers us to what he calls "unrebutted" evidence that the absence of
devices to stop trains made the barge unseaworthy. Janes offered opinions from Robert
Hall, Ph.D., an expert in human factors and safety engineering, and Lawson Bronson, an
expert in naval architecture and marine engineering. Each expressed an opinion that the
loading process was not safe because deck cargo blocked the fixed couplers and because
22 See Mitchell, 362 U.S. at 550 ("The standard is not perfection, but
reasonable fitness; not a ship that will weather every conceivable storm or withstand
every imaginable peril of the sea, but a vessel reasonably suitable for her intended
service.") (citation omitted); see also THOMAS J. SCHOENBAUM , ADMIRALTY AND
MARITIME LAW § 6-25 (5th ed. 2011) ("The shipowner is not required to provide the
latest and best equipment and there is no warranty for an accident free ship.").
-18- 6829
----------------------- Page 19-----------------------
the vessel did not provide portable track stops. To support his opinion, Hall relied on an
Occupational Safety & Health Administration (OSHA) regulation requiring that track
23
stop devices be used on railroad tracks on land. Bronson testified that the purpose of
the fixed couplers on the barge was to stop a moving string of railcars, and that there
were commercially available portable track stops that could have been modified for use
on the barge.
As we explain below, Janes's evidence was not "unrebutted," other
evidence broadly rebutted the opinions of Janes's experts, and the superior court
permissibly chose to disregard their opinions.
The testimony of both experts was problematic. Bronson admitted that
what Janes terms "commercially available track stop[s]" were designed to attach to
standard T-shaped rail, and could not be attached to the flat-bar rail used on the barge.
Neither witness provided designs or calculations to support their assertions that portable
track stops were necessary or effective. Bronson had made no calculations about
whether the track stops he discussed would pull up the barge deck when struck by the
railcars, whether railcars might crush a stop, or whether the railcars would just push a
stop forward.
The experts' failure to offer designs or calculations to support their opinions
caused the superior court to disregard their opinions: It stated that the "failure to offer
any detailed designs or calculations with respect to proposed portable coupling devices
rendered [Janes's] experts' opinions not helpful to the court." Although Janes argues
that it was error to ignore the "unrebutted" expert testimony, he does not argue that the
court abused its discretion by ruling that the absence of designs or calculations made the
23 29 C.F.R. § 1910.176(f) (2006) provides that "[d]erail and/or bumper
blocks shall be provided on spur railroad tracks where a rolling car could contact other
cars being worked, enter a building, work or traffic area."
-19- 6829
----------------------- Page 20-----------------------
experts' opinions "not helpful." The court was not obliged to credit the opinions offered
by Janes's experts. It permissibly exercised its discretion in giving their opinions no
weight.
When acting as the trier of fact, the superior court may weigh conflicting
24
The opinions of the two experts were broadly
evidence and draw its own conclusions.
contradicted by witnesses who had participated in designing the barge and by employees
involved in the loading process on the day of the accident. There was general consensus
among these witnesses that neither the fixed couplers nor the portable couplers
considered but rejected during design were intended to stop a string of moving railcars.
Michael Whalen, the naval architect who designed the barge, explained in detail the
portable coupler designs and forces involved in stopping railcars. He explained that the
portable couplers had been designed to withstand the same force as the fixed couplers.
According to his calculations, the fixed and portable couplers could only withstand
200,000 pounds of force before they would start to fail or break. There was evidence
that the string of railcars weighed 3,000,000-4,000,000 pounds. Whalen testified that a
string of 20 railcars moving at approximately one mile per hour could generate over
1,000,000 pounds of force and that no commercially available track stops could have
withstood such a force. He also testified that it was not feasible to build a stopping
device that could attach to flat-bar rail track, because all available devices were designed
for T-shaped rails. He explained that flat-bar track had been used to eliminate other
safety hazards during the loading process. Lynden's President and Chief Operating
24 See Sanford Bros. Boats, Inc. v. Vidrine , 412 F.2d 958, 969 (5th Cir. 1969)
(explaining it is the role of the fact finder to "weigh[] the contradictory evidence and
inferences, judge[] the credibility of witnesses . . . and draw[] the ultimate conclusion as
to the facts"); see also Peterson v. Ek , 93 P.3d 458, 464 (Alaska 2004) ("[I]t is the
province of the trial court to judge witnesses' credibility and weigh conflicting
evidence.").
-20- 6829
----------------------- Page 21-----------------------
Officer, Jonathan Burdick, and Lynden's port engineer, George Williamson,25 both
explained ARM's decision not to include portable couplers; they confirmed Whalen's
opinion that a portable track stop was not practical.
The superior court heard evidence that attempting to use fixed or portable
couplers to stop a string of railcars could make the loading process more dangerous: If
the railcars hit the fixed couplers or portable couplers too hard, they could cause the
barge to pull away from the slip, resulting in the slip and everything on it falling in the
water. And there was evidence that if a portable coupler failed when hit by a railcar it
could result in flying metal parts.
This evidence supported the superior court's findings that the railroad's
loading procedures were effective and reasonably safe in controlling and stopping
railcars, that no additional stopping devices were needed, and that Janes had not
demonstrated that there are safer, more viable means to stop railcars. Therefore, the
evidence supported the court's ruling that the barge was reasonably fit for its intended
purpose of carrying and transporting rail and non-rail cargo. The evidence also supports
a conclusion that the loading procedures did not in fact jeopardize either the cargo or
anyone loading the railcars. Janes's argument to the contrary does not demonstrate that
the superior court clearly erred.
Contrary to Janes's argument, the OSHA regulation relied on by Janes's
expert Hall did not compel the superior court to find unseaworthiness. The regulation
25 Burdick was the President and Chief Operating Officer of Lynden
Incorporated and the President of ARM. In those roles, he had been in charge of
Lynden's response to Alaska Railroad's request for proposal and the creation of ARM
to build and operate the railcar barges. At the time of trial, Williamson was employed
by Lynden. As port engineer, Williamson had been the person primarily in charge of
ARM's response to the request for proposal and thus the design of the railcar barges.
After the barges were built, he was in charge of ensuring their functionality.
-21- 6829
----------------------- Page 22-----------------------
requires "[d]erail and/or bumper blocks," but it does not apply to the railroad tracks on
26
The superior court was not obliged to rely on a facially inapplicable OSHA
the barge.
standard not endorsed by credible expert evidence from Hall or anyone else.
Janes argues that the OSHA regulation establishes an industrial standard
calling for the use of a stopping device. But after the court ruled that the opinions of
Janes's experts were not helpful, there was no credible evidence that the regulation set
a standard that was in any way relevant to loading railcars on barges. Hall asserted that
the OSHA standard showed there was a safer way of loading the railcars, but he admitted
that he had never actually seen a track stop device, that modifications would have to be
made to use a track stop device on the barge, and that he had done no calculations to see
whether using a track stop on the barge was feasible or whether a track stop might fail
if used on the barge. His testimony merely posited an unsupported theory that a track
stop could be used on the barge. Evidence rebutting his unsupported theory was based
on actual calculations made when the barge was designed, and by testimony of witnesses
that using "stopping devices" could create safety hazards.
Finally, in a claim of unseaworthiness, adherence or non-adherence to
industrial standards is not itself determinative of a vessel's reasonable fitness for its
27
intended purpose. Tugboat captain Dwaine Whitney testified that the procedures used
to stop railcars by ARM were "essentially the same" as those used on other railcar
barges. He testified that some railcar barges do not even have fixed couplers; railcars in
those operations are stopped without using fixed couplers and railcars on those barges
are lashed using only chocks and chains. The superior court could conclude from this
26 29 C.F.R. § 1910.176(f) (2006).
27 See Bryant v. Partenreederei-Ernest Russ , 330 F.2d 185, 190 (4th Cir.
1964) (citing Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95 (1946)) (explaining that
industrial standards are some evidence that a ship is seaworthy, but are not conclusive).
-22- 6829
----------------------- Page 23-----------------------
evidence that there was no reason to borrow the OSHA standard in assessing the
seaworthiness of the FAIRBANKS PROVIDER .
As the trier of fact, the superior court could weigh the evidence. We
conclude that the court's finding that the FAIRBANKS PROVIDER was reasonably fit for
its intended purpose was not clearly erroneous.
2. The superior court did not err in considering the feasibility of
the devices critical to Janes's claims of unseaworthiness.
Janes argues that the superior court committed legal error by requiring
Janes to prove the feasibility of portable track stops in order to show the existence of an
unseaworthy condition. He contends that as a matter of law the defendant in an
unseaworthiness case bears the burden of proving that safety devices are not feasible.
ARM responds that the superior court properly allocated the burden to Janes because he
had not proved that a defective condition existed. ARM contends that the burden of
proof concerning the feasibility of safety devices can be shifted to the defendant only
after the plaintiff has proved that an unseaworthy condition exists.
The parties agree that a seaman claiming unseaworthiness bears the burden
of proving the existence of a defective condition. The question here is whether a seaman
who claims that a failure to provide alternative equipment or an alternative method of
operation creates an unseaworthy condition bears the burden of proving that the
alternative is feasible.
Generally, courts consider alternative equipment or work methods to be
relevant to the issue of whether the vessel was reasonably safe and therefore reasonably
28
The Fourth Circuit went further in Tucker v. Calmar S.S.
fit for its intended purpose.
28 See, e.g., Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 905 (6th Cir.
2006) (citing Locke v. River Lines, Inc. , 248 F. Supp. 92, 94-96 (N.D. Cal. 1964))
(continued...)
-23- 6829
----------------------- Page 24-----------------------
Corp., commenting that "[t]he availability of safer methods of operation must be taken
into account in meeting the initial determination whether the equipment used was in fact
29
Several courts have held that the mere existence of alternative
reasonably safe."
equipment or an alternative method of work is insufficient by itself to show that the
30
method used was not reasonably fit for its intended purpose. Seaworthiness does not
require that the vessel, its equipment, or its appurtenances be perfect; they must only be
reasonably fit for their intended purpose.31 A reasonableness analysis in the
seaworthiness context weighs the risk presented by the vessel's equipment or method of
work against the availability of safer alternatives.32
28 (...continued)
(explaining safer alternatives are relevant, but not dispositive, to reasonableness); see
also Tucker v. Calmar S.S. Corp., 457 F.2d 440, 445 (4th Cir. 1972) (evaluating whether
loading method was reasonably safe in an unseaworthiness action based on injuries
sustained during loading).
29
457 F.2d at 445 (emphasis added) (holding that the risk of serious injury
and the availability of safer equipment rendered the ship's use of certain equipment
unseaworthy).
30
Rogers v. Eagle Offshore Drilling Servs., Inc. , 764 F.2d 300, 303-04 (5th
Cir. 1985) (citing Luneau v. Penrod Drilling Co. , 720 F.2d 675 (5th Cir. 1983))
(requiring plaintiff to present sufficient evidence showing that a method of operation
itself is unsafe, before a vessel can be rendered unseaworthy); see also THOMAS J.
SCHOENBAUM , ADMIRALTY AND MARITIME LAW § 6-25 (5th ed. 2011) ("[T]he mere
existence of an alternative method of work or alternative equipment is not sufficient in
itself to show unseaworthiness.").
31 Mitchell v. Trawler Racer, Inc. , 362 U.S. 539, 550 (1960).
32
See Tucker, 457 F.2d at 445 (weighing the operating efficiency, anticipated
operating conditions, and the availability of safer alternatives to determine whether
loading process was reasonably safe).
-24- 6829
----------------------- Page 25-----------------------
33
Plaintiffs can prove a defective condition in various ways. In some cases,
an unsafe condition in and of itself renders the vessel not reasonably fit for its intended
purpose;34 in other cases, a combination of risk and safer alternatives renders the vessel
35
If a plaintiff seeks to prove a defective
not reasonably fit for its intended purpose.
condition by showing that the vessel lacked a specific safety device or that alternative
equipment would have been safer, the plaintiff must bear the burden of showing that the
36
alternative equipment or method is feasible, i.e., that it is truly an alternative.
Janes relies on Salem v. United States Lines Co., where the plaintiff alleged
that the ship was unseaworthy because it was not equipped with "necessary and feasible
37
In that case plaintiff fell while
safety devices" that would have prevented his injuries.
dismounting from the top of a ladder and moving to the crow's-nest platform; he argued
33 See Brown v. Dravo Corp., 258 F.2d 704, 706 (3d Cir. 1958) (explaining
seaworthiness is "a relative concept, dependent in each instance upon the
circumstances"); Lester v. United States , 234 F.2d 625, 628 (2d Cir. 1956) (same); see
also Marshall v. Ove Skou Rederi A/S , 378 F.2d 193, 196 (5th Cir. 1967) (same, citing
several sources).
34
E.g. , Salem v. U.S. Lines Co., 370 U.S. 31, 36 (1962) (holding lack of
safety device rendered vessel unseaworthy and explaining it was not necessary for jury
to find it was feasible to include such devices).
35
E.g. , Tucker, 457 F.2d at 445 (holding vessel unseaworthy because adverse
conditions and availability of safer equipment made risk of injury in loading process
unreasonable).
36
See id. (considering the availability of safer methods of operation in "the
initial determination [of] whether the equipment used was in fact reasonably safe"); see
also 78A C.J.S. Seamen § 251 (2013) ("[D]efendant need not make proof of any facts
relied on as a defense until the seaman has established prima facie the liability of
defendant for the injuries alleged to have been sustained.").
37 Salem, 370 U.S. at 31-32.
-25- 6829
----------------------- Page 26-----------------------
that the shipowner should have provided railings or other safety devices around the
38
platform. The issue was whether the jury could find that an unseaworthy condition
existed without receiving expert testimony on the feasibility of providing safety devices
around the platform.39 The United States Supreme Court concluded that expert testimony
was not required if the jury could understand the danger presented by the alleged
defective condition and therefore was competent to decide whether safety devices were
40
reasonably necessary for the protection of a seaman. After concluding that the plaintiff
provided sufficient evidence showing that safety devices were necessary, the Supreme
Court commented that the defendant could have presented evidence that it was not
41
feasible to include railings. We do not interpret the Court's comment as invariably
requiring defendants to bear the burden of addressing the feasibility of alternative
devices. Rather, the Court acknowledged that if a plaintiff establishes the existence of
an unsafe or unseaworthy condition, then the defendant could, as an affirmative defense,
42
present evidence that it was not feasible to include safety devices. Even if a plaintiff
38 Id. at 32-33.
39 Id. at 34 (reversing holding of court of appeals that it was error to submit
unseaworthiness question to jury where there was no expert testimony on proper marine
architecture).
40 Id. at 36.
41
Id. at 37 ("[I]f there was a reason hidden from the ordinary mind why this
condition of things must have existed, those facts called upon the defendant to make that
reason known.").
42 Id. ; see also Jordan v. U.S. Lines, Inc., 738 F.2d 48, 50 (1st Cir. 1984)
(upholding verdict for vessel owner where plaintiff presented evidence of imperfect
equipment, but vessel owner presented rebuttal evidence that imperfect equipment was
nonetheless reasonably fit for intended use); Poignant v. United States, 225 F.2d 595,
(continued...)
-26- 6829
----------------------- Page 27-----------------------
showed that an unsafe condition existed, a defendant could argue that the vessel was
nonetheless reasonably fit for its intended purpose because it was not feasible to include
43
But here, unlike the plaintiff in Salem, Janes did not show that there
safety devices.
was an unseaworthy condition; the superior court rejected his claim that the loading
process was unsafe after considering the railroad's procedures and concluding that
additional stopping devices were not needed. The burden of establishing that the vessel
was not reasonably fit remained with Janes; he could have met that burden by showing
that portable track stop devices were necessary or would have made the loading process
safer. To hold otherwise would eviscerate the standard that vessels only be reasonably
fit for their intended purpose, and would make shipowners absolutely liable for injuries
occurring on their vessels.44
Moreover, two particular circumstances confirm that it was appropriate here
to require Janes to prove the feasibility of track stops.
First, Janes's theories of unseaworthiness explicitly or implicitly posited
that the barge was not reasonably fit either because the fixed couplers were obstructed
or because portable track stops were not provided. Janes claimed that it was the failure
42 (...continued)
602 (2d Cir. 1955) (commenting that garbage left in a passageway might not constitute
an unseaworthy condition if the defendant could show there was no reasonably available
means of removing it).
43
See Salem, 370 U.S. at 37; see also Jordan , 738 F.2d at 51; Poignant , 225
F.2d at 602.
44
Cf. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960) ("The
standard is not perfection, but reasonable fitness; not a ship that will weather every
conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably
suitable for her intended service."); Metcalfe v. Oswell Towing Co. , 417 F.2d 313, 314
n.2 (5th Cir. 1969) ("[T]he mere fact that an accident occurs and a seaman is injured,
without more, does not establish that a vessel is unseaworthy.").
-27- 6829
----------------------- Page 28-----------------------
to provide specific devices - either unobstructed fixed couplers, the portable couplers
considered but rejected when the barges were designed, or what he described as
"devices" that are "widely available commercially" - to stop moving railcars that made
the barge unseaworthy. Janes did not argue (and could not have argued) that the
presence of both railcars and non-rail cargo rendered the vessel unseaworthy, given that
the purpose of the barge was to carry railcars and non-rail cargo at the same time.
Therefore, critical to Janes's unseaworthiness claims regarding stopping devices was
evidence that the devices (including the fixed couplers) would work as Janes claimed
45
they should, i.e., stop a moving string of railcars.
Second, the superior court made findings that effectively eliminated any
implicit contention that any difficulty in precisely stopping railcars rendered the barge
unseaworthy. It found that railcars can be safely stopped during loading; that the
railroad's procedures were an effective and reasonably safe means to control and stop
railcars; that the railroad was fully capable of safely stopping railcars without using
additional stopping devices; and that the slack between railcars had been eliminated on
this occasion. These findings confirmed that the essence of Janes's unseaworthiness
claim was that additional stopping devices were needed to make the barge reasonably fit.
Therefore, given the way Janes presented his case, we conclude that to
prove that the barge was not reasonably fit for loading and transporting railcars and deck
cargo, Janes had the burden of proving that the fixed couplers or portable track stops
would have made the loading process safer. If Janes had offered evidence that these
devices made the loading process safer, the superior court could then have weighed the
45 When Janes discussed the various devices in closing argument, the superior
court asked counsel to point to "where in the record there would be evidence that would
indicate that the stop at the front of the vessel would stop a group of railcars from going
off" the bow of the barge.
-28- 6829
----------------------- Page 29-----------------------
risk and availability of safer alternatives to determine whether the loading process was
46
The superior court
not reasonably safe without fixed couplers or portable track stops.
did not err in placing the burden of proving the feasibility of using track stop devices on
Janes. And the court did not err when it found that Janes "did not demonstrate that a
safer, more viable means exists to halt or arrest the movement of the railcars" and when
it found that the barge was reasonably fit for its intended purpose.
In sum, if the plaintiff asserts that the shipowner's failure to provide safer,
alternative devices or methods renders a vessel unseaworthy, it is appropriate that the
plaintiff bear the burden of proving that the alternative devices or methods are feasible.
The burden of proof on the issue of the feasibility of alternative methods or devices shifts
to the defendant only when non-feasibility is raised as an affirmative defense - and after
the plaintiff has already shown the existence of an unseaworthy condition. Here, the
superior court properly weighed the feasibility of Janes's proposed alternatives in
determining whether he had proved that an unseaworthy condition existed. The superior
court permissibly required Janes to prove the feasibility of the devices he claimed ARM
should have provided.
B. Admitting Michael Whalen's Deposition Testimony Into Evidence Was
Neither An Abuse Of Discretion Nor Prejudicial.
Janes argues that the superior court committed reversible error when it
admitted into evidence and relied upon portions of Michael Whalen's deposition over
47
Janes's objection that the testimony was speculative.
46 See Tucker v. Calmar S.S. Corp., 457 F.2d 440, 446 (4th Cir. 1972)
(holding plaintiff had shown unseaworthy condition after weighing the risk of injury and
the availability of safer equipment).
47 Our resolution of this claim of error makes it unnecessary to consider
(continued...)
-29- 6829
----------------------- Page 30-----------------------
The disputed portion of Whalen's testimony discussed safety concerns
48
about the proposed portable couplers. Whalen was the naval architect who designed
47 (...continued)
whether ARM is correct in contending that Janes cannot object that the testimony is
speculative because it was given when Whalen answered a question from Janes's
attorney; ARM reasons that an interrogator can object to an answer to his own question
only on the grounds of non-responsiveness. In support, ARM cites INA Life Ins. Co. v.
Brundin , 533 P.2d 236, 244-45 (Alaska 1975), where, after determining that the superior
court erred in excluding testimony as speculative, this court noted the general rule that
an interrogator cannot object to an answer to his own question except on grounds of non-
responsiveness.
48 In response to questions from Janes's counsel, Whalen testified:
Q: And were you ever asked to incorporate design features
that would prevent the rail car cargo from running into the
deck cargo?
A: There was discussion with Alaska Railbelt Marine
regarding that. And at one point they asked us if we could
take a look at coming up with a concept for something that
could be used on the deck to - as kind of a portable coupler.
Q: And what happened to those discussions?
A: We hired an engineer to come up with a concept for that.
And his design basically tried to duplicate the load carrying
ability of the couplers at the forward end of the barge. And
we gave that to Alaska Railbelt. But as far as what was
decided after that, we weren't involved.
I think there was some concern that - after we
determined that we didn't feel that the couplers at the forward
end of the barge were really designed for an out-of-control
rail car, there was some concern that this portable coupler
might not be suitable because it may not be able to stop an
out-of-control rail car. And because . . . of the design of the
rail tracks being flat bars, it's hard to grab anything with a
portable coupler, so . . . then the issue became, is it more
dangerous to put something on the deck that if it got hit by
(continued...)
-30- 6829
----------------------- Page 31-----------------------
the barge. He testified that after his firm hired an engineer to design portable couplers,
he wasn't involved in deciding whether to include them on ARM's barges. He then
testified that there were concerns that portable couplers would not be able to stop moving
railcars and that placing a portable coupler in front of moving railcars might increase the
danger. Janes argues that Whalen's testimony "as to the reasoning for any of the
decisions that were made by ARM" was not based on his personal knowledge because
he was not involved in ARM's decision-making. Janes argues that the court relied on
the testimony in finding that "safety was a factor" in the decision not to provide "portable
track stops." ARM responds that Whalen was testifying from his personal knowledge
and that the admission of the disputed testimony was not prejudicial.
To the extent the quoted passage addresses why ARM decided not to adopt
the design, it was arguably objectionable absent a suitable foundation. But most of the
passage discusses events within Whalen's personal knowledge or matters well within his
expertise. Whalen properly discussed the forces a slowly rolling string of railcars would
generate and the ability of portable couplers to withstand those forces, and his testimony
about those topics was admitted into evidence without objection. In his position as
architect of the barge, Whalen became familiar with the design specifications and risks
involved with the fixed and portable couplers.49
48 (...continued)
something that was out of control, you know, could it break
into pieces with bolts flying here and there, that sort of
question.
49
As the naval architect of the FAIRBANKS PROVIDER and its sister barges,
Whalen was familiar with the design and capacity of portable couplers. He personally
investigated the possibility of using portable couplers and made preliminary calculations
on the load-bearing capacity of these devices. Even if he did not have personal
(continued...)
-31- 6829
----------------------- Page 32-----------------------
To the extent the passage minimally discusses why ARM did not build
portable couplers, the testimony of witnesses Burdick, Williamson, and Whitney made
the disputed passages in Whalen's testimony cumulative. Independent of Whalen's
disputed testimony, there was ample compelling evidence that portable couplers were not
feasible as stopping devices and would not have made the loading process safer. In this
judge-tried case, we cannot say that admitting Whalen's brief, cumulative testimony was
an abuse of discretion.
The reasons why a shipowner acted may be relevant to a negligence claim,
and the court's finding that safety was a consideration in the decision not to include
portable couplers was pertinent to Janes's alternative negligence claim. The superior
court carefully distinguished between Janes's negligence claim and his unseaworthiness
claim. It rejected the unseaworthiness claim not because it found that ARM had acted
reasonably in abandoning the portable coupler idea, but because it concluded that Janes
had not proved that the absence of portable couplers rendered the barge unseaworthy.
The court decided the unseaworthiness claim based on the condition of the barge, not the
conduct of ARM. There is consequently no indication the court relied on the disputed
Whalen testimony in rejecting the unseaworthiness claim.
There was no error in admitting the disputed Whalen testimony into
evidence, nor was its admission prejudicial.
V. CONCLUSION
For these reasons, we AFFIRM the judgment.
49 (...continued)
knowledge why ARM decided not to include portable couplers, he had knowledge
relevant to the safety of portable couplers.
-32- 6829
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