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Scott v. Briggs Way Co. (1/19/96), 909 P 2d 345
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) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
BRUCE A. SCOTT, )
) Supreme Court No. S-5842
) Superior Court No.
v. ) 3AN-92-05114 CI
BRIGGS WAY CO., EMORENE BRIGGS, )
ROGER BRIGGS, as individuals, )
and d/b/a BRIGGS WAY CO., and the )
F/V CHRIS'S SPECIAL, her engines, )
tackle, gear, and furniture, ) O P I N I O N
jointly and severally, )
) [No. 4311 - January 19, 1996]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
J. Justin Ripley, Judge.
Appearances: Charles W. Coe, Anchorage,
for Appellant. John W. Hendrickson,
Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
MATTHEWS, Justice, with whom RABINOWITZ,
Justice joins, dissenting in part.
Emorene Briggs and Roger Briggs, doing business as
Briggs Way Co., operate a set net fishing business. The Briggs
employed Bruce Scott in June and July 1990 to work at their
Ugashik River set net site as a maintenance person and crew
member.1 In June 1990 Scott and his co-worker, Ryan Connor, were
working on land, moving set net buoys.2 Scott was injured when
the little finger on his right hand was crushed between a buoy
and a forklift.
Scott filed a complaint against the Briggs in June
1992, seeking relief under principles of general negligence, the
Jones Act, and maritime law. The superior court granted the
Briggs' motion for summary judgment.3 It awarded the Briggs
$4,050 in attorney's fees under Alaska Civil Rule 82. Scott
Scott contends that the Briggs were negligent because
of the foreseeable harm in moving set net buoys with a forklift.
However, several material facts remain in dispute.4 Drawing all
reasonable inferences in Scott's favor, we conclude that there
existed a genuine issue of material fact regarding the Briggs'
alleged negligence. Accordingly, we reverse summary judgment on
the issue of the Briggs' negligence.
B. Jones Act
Scott contends that he is a "seaman in the service of"
a vessel for the purposes of the Jones Act5 and can maintain an
action in negligence against the Briggs, his employers. The
Briggs dispute the applicability of the Jones Act.
Both parties cite McDermott Int'l, Inc. v. Wilander,
498 U.S. 337 (1991), to support their position. Wilander held
that "seaman" status under the Jones Act depends on "employment-
related connection to a vessel in navigation. . . . It is not
necessary that a seaman aid in navigation or contribute to the
transportation of the vessel, but a seaman must be doing the
ship's work." Id. at 355. The Supreme Court has recently
clarified the test for seaman status under the Jones Act,
delineating a two-part test. Chandris, Inc. v. Latsis, 115 S.
Ct. 2172 (1995). First, the
"employee's duties must 'contribut[e] to
the function of the vessel or to the
accomplishment of its mission.'" [McDermott
Int'l, Inc. v. Wilander, 498 U.S. 337, 355
(1991) (quoting Offshore Co. v. Robison, 266
F.2d 769, 779 (5th Cir. 1959)).]
Id. at 2190. Second,
a seaman must have a connection to a
vessel in navigation (or to an identifiable
group of such vessels) that is substantial in
terms of both its duration and nature.
Id. Although noting that "[w]hen a maritime worker's basic
assignment changes, his seaman status may change as well," id. at
2191, the Court emphasized that
the Jones Act remedy is reserved for sea-
based maritime employees whose work regularly
exposes them to "the special hazards and
disadvantages to which they who go down to
the sea in ships are subjected."
Id. at 2190 (quoting Seas Shipping Co. v. Sieracki, 328 U.S. 85,
104 (1946) (Stone, C.J., dissenting)). The court noted with
approval the Fifth Circuit's general guideline that "a worker who
spends less than about thirty percent of his time in the service
of a vessel in navigation should not qualify as a seaman under
the Jones Act." Id. at 2191.
The record indicates that the Briggs used several
twenty-three foot skiffs in their set net operations during
salmon season.6 Nonetheless, that fact alone does not make Scott
a seaman for the purposes of the Jones Act. Scott was injured
while moving a set net buoy, rather than while working on a
skiff.7 Because 1) the accident happened "at least two weeks
before the salmon season opened," 2) Scott worked as a
maintenance person prior to the salmon season and not as a crew
member at the set net site until the season, and 3) Scott had no
apparent connection to any vessel in navigation as a part of his
maintenance duties when injured, Scott was not a seaman at that
time.8 Moreover, it is immaterial that Scott's employment may
have contemplated future operations in which a skiff was
utilized: "the law does not cover probable or expectant seamen
but seamen in being." Desper v. Starved Rock Ferry Co., 342 U.S.
187, 191 (1952). Scott, when injured, was carrying out his pre-
salmon season dryland assignment and had not yet begun to carry
out his assignment attending set nets. He was not yet "doing the
ship's work," Wilander, 498 U.S. at 355, and thus he had not yet
assumed the status of "seaman."9
Drawing all reasonable inferences in Scott's favor, we
conclude that there is no genuine issue of material fact as to
his status; he was not a "seaman" covered by the Jones Act or
general maritime law. We therefore affirm summary judgment as to
In view of our reversal of the summary judgment on the
issue of the Briggs' negligence, the award of attorney's fees is
AFFIRMED in part, REVERSED in part, and REMANDED for
proceedings consistent with this opinion.
MATTHEWS, Justice, with whom RABINOWITZ, Justice, joins, dissent
ing in part.
A motion for summary judgment should not be granted
when genuine issues of material fact exist. Alaska R. Civ. P.
56(c). A trial court in addressing a motion for summary
judgment, and an appellate court in reviewing a case in which a
motion for summary judgment has been granted, should view the
record in the light most favorable to the nonmovant. The court
should also draw all reasonable inferences in favor of the
nonmoving party and against the movant. Hildebrandt v. City of
Fairbanks, 863 P.2d 240, 244 n.6 (Alaska 1993); Lord v. Fogcutter
Bar, 813 P.2d, 660, 662 (Alaska 1991). Further, the burden of
establishing the absence of genuine issues of material fact must
be shouldered by the movant. Cannone v. Noey, 867 P.2d 797, 801
n.4 (Alaska 1994); Capener v. Tanadgusix Corp., 884 P.2d 1060,
1074 (Alaska 1994).
The United State Supreme Court in Chandris, Inc. v.
Latsis, 115 S. Ct. 2172 (1995), has synthesized a two-part test
for determining whether an employee is a Jones Act seaman. The
first part of the test is that the employee's duties must
contribute to the function of a vessel or to the accomplishment
of its mission. The second part of the test is that the employee
must have a connection to a vessel in navigation, or to an
identifiable group of such vessels, that is substantial in terms
of both its duration and nature. Id. at 2194.
The Supreme Court stressed in Chandris that the
determination of seaman status is a mixed question of law and
fact. If, in the application of the appropriate legal standard,
reasonable people might differ as to whether a party is a seaman,
the question must be resolved by the trier of fact:
It is important to recall that the
question of who is a "member of a crew," and
therefore who is a "seaman," is a mixed
question of law and fact. Because statutory
terms are at issue, their interpretation is a
question of law and it is the court's duty to
define the appropriate standard. . . . On
the other hand, "[i]f reasonable persons,
applying the proper legal standard, could
differ as to whether the employee was a
'member of a crew,' it is a question for the
Id. at 2190 (alteration in original) (quoting McDermott
International, Inc. v. Wilander, 498 U.S. 337, 356 (1991)); see
also id. at 2193.
The first part of the Chandris test is easily met in
this case. Scott was a fisherman injured while handling a heavy
net buoy, preparatory to placing the buoy in the water where a
gill net would be attached to it. To a degree unquantified on
this record some of Scott's employment activities took place
aboard the large skiffs owned by his employers. These skiffs
tend the nets and Scott, as a fisherman, contributed to their
function and the accomplishment of their mission.
The real question in this case concerns the second part
of the Chandris test. How substantial in terms of duration and
nature was Scott's employment-related connection to his
skiffs? Chandris tells us that to answer this question we must
view Scott's shoreside and skiffboard activities as a whole: "In
our view, 'the total circumstances of an individual's employment
must be weighed to determine whether he had a sufficient relation
to the navigation of vessels and the perils attendant thereon.'"
Id. at 2190. Chandris also lays down as a threshold requirement
for the substantiality of a worker's durational connection to a
vessel a thirty percent guideline: "a worker who spends less
than about 30 percent of his time in the service of a vessel in
navigation should not qualify as a seaman under the Jones Act."
Id. at 2191.
Viewing the totality of Scott's employment, did he meet
this guideline by spending more than thirty percent of his time
aboard skiffs? The answer is that the record is silent on this
point. On summary judgment, the burden fell on Scott's
employers, the Briggs, to establish that Scott did not meet this
threshold. Capener, 884 P.2d at 1074. As this burden was not
discharged, summary judgment should be reversed and this case
should be remanded for further proceedings.
The majority opinion circumvents the logic of this
position in two ways. First, according to the majority, Scott
really had two jobs. He was a maintenance person prior to the
commencement of salmon fishing and a crewmember after salmon
fishing began. Since Scott was injured before salmon fishing
began, the beginning date for measurement of the substantiality
of his employment-related connection to a group of vessels had
not been reached. Slip Op. at 5-6. Second, relying on Desper v.
Starved Rock Ferry Co., 342 U.S. 187, 191 (1952), the majority
holds that Scott was at most a "probable or expectant seaman,"
not a "seaman in being," because Scott had not yet begun to work
aboard his employers' skiffs. As the majority puts it Scott "had
not yet begun to carry out his assignment attending set nets. He
was not yet 'doing the ship's work' . . . and thus he had not yet
assumed the status of 'seaman.'" Slip Op. at 6. For the reasons
that follow, I do not believe that either of these reasons
suffices to justify affirming summary judgment.
The Two Jobs Rationale
In defense of the two jobs rationale adopted by the
majority, it can be said that it is Scott's, or Scott's
counsel's, fault that he has lost on this basis, for it is his
affidavit and his counsel's memorandum which give rise to the two
jobs inference.10,11 Scott asserted that his maintenance and
fishing duties were separate in order to support his claim that
he was covered under the Alaska Workers' Compensation Act. Scott
argued that his employers had failed to secure workers'
compensation insurance for him, and he was therefore entitled to
maintain a negligence action against them under the pro-employee
provisions of AS 23.30.080.
There is much in the record which supports the position
that Scott only had one job, with multiple responsibilities --
that of a commercial fisherman. For example, in response to
Scott's allegation in his complaint that at the time of the
accident he "was working for defendants at their business as a
crewmember and laborer," the Briggs answered with a denial,
pleading affirmatively that "plaintiff was working on shares as a
commercial fisherman . . . ." The single job theme is continued
in the Briggs' memorandum in support of their motion for summary
judgment: "It is quite clear that Scott was a commercial
fisherman. He was hired, licensed and paid as such." and:
"Plaintiff injured the small finger on his right hand when moving
buoys for set nets. He was a licensed commercial fishing crew
member employed by Roger and Emorene Briggs who are set netters
at Ugashik, Alaska." Further, the Briggs state in their reply
Mr. Scott had a commercial fishing
license purchased June 10, 1990 and he was
fishing on shares at a setnet site on the
Ugashik River. In order to put the nets out
the buoys have to be moved to the water.
That is what he was doing and that is part of
fishing. . . . Getting boats, nets, motor
[sic] and buoys into the water is part of a
Again, in their reply memorandum, the Briggs state:
Plaintiff argues that his injury
occurred several weeks before the red salmon
season in Bristol Bay and that he was doing
maintenance work. This argument flies in the
face of the employment agreement between
plaintiff and defendants. The agreement was
that he would be paid a share of the catch.
He was paid his full share in the 1990
season. Thus when he was working on nets,
buoys, motors, etc. he was doing the work of
a fisherman. AS 23.30.230 exempts fishermen
from the requirements of the workers
compensation act. The affidavits of Roger
Briggs, Emorene Briggs and Ryan Connor all
illustrate conclusively that Scott was
working as a fisherman at the time of the
Roger Briggs' affidavit supports the inference that
Scott had only one job:
5. Moving buoys at a set net site
is a part of a fisherman's work.
6. The only employment Scott had
with my wife and I was as a fisherman
working on shares at the Ugashik setnet
7. In 1990 Scott was paid his
full fisherman's share even though he
missed a week of work for medical
Emorene Briggs' affidavit supports the single job inference in
even greater detail:
4. Scott fished the full red
salmon season which is about June 10 to
about July 20. He was paid his full
fisherman's share for the season.
5. No other money was or could be
6. Getting boats, nets, outboard
motors, buoys and running lines ready
and into the water is part of the work
of a fisherman who works on shares. I
have been commercial fishing for 32
years and this has always been true for
a fisherman working on shares.
Further, and very strong, support of the single job
inference is the fact that Scott was not paid by the hour, but by
the season, based on a percentage of the value of the salmon
caught at the Briggs' set net sites.
As noted, the Supreme Court of the United States in
Chandris required that "the total circumstances of an
individual's employment" be weighed to determine the
substantiality of the worker's connection to a vessel or group of
vessels. Id. at 2190. In reaching this result the Court
rejected a "snapshot" test of seaman status under which "only the
situation as it exists at the instant of injury" would be
inspected. Id. at 2187. Similarly, the Court rejected a
"voyage" test under which a maritime worker who puts to sea
automatically assumes seaman status. Id. Although it observed
that a worker may not "oscillate back and forth between Jones Act
coverage and other remedies depending on the activity in which
the worker was engaged while injured," id., the Court recognized
that a worker's seaman status might change when the worker's
"basic assignment" changes. Id. at 2191. The Court gave
examples of basic assignment changes:
For example, we can imagine situations
in which someone who had worked for years in
an employer's shoreside headquarters is then
reassigned to a ship in a classic seaman's
job that involves a regular and continuous,
rather than intermittent, commitment of the
worker's labor to the function of a vessel.
Such a person should not be denied seaman
status if injured shortly after the
reassignment, just as someone actually
transferred to a desk job in the company's
office and injured in the hallway should not
be entitled to claim seaman status on the
basis of prior service at sea. If a maritime
employee receives a new work assignment in
which his essential duties are changed, he is
entitled to have the assessment of the
substantiality of his vessel-related work
made on the basis of his activities in his
115 S. Ct. at 2191-92.
These examples -- transferring an employee from a
shoreside headquarters job to a classic seaman's job, or
transferring a classic seaman to a desk job in the company's
office -- do not resemble in any way the transition from
preparing to fish (setting the fishing gear in the water) to
fishing, which takes place in the course of a set net fisherman's
ordinary activities over a season. Thus it seems difficult to
make a case that Scott, when his activities changed from
preparing to fish to fishing, assumed a "new position," or
underwent a "basic assignment" change within the meaning of
If the law were to treat the transition from preparing
to fish to fishing for a set net crewmember as a basic assignment
change, only the period during which fishing activities take
place would be measured for purposes of the thirty percent
guideline. This could have a distorting impact. A set netter
injured between the time that actual fishing begins and when it
ends might satisfy the thirty percent guideline, whereas if the
whole period of the set netter's season, involving preparation,
fishing, and taking the gear out of the water and storing it,
were measured, the guideline might not be met.
I think it would be appropriate to rule, based on the
fact that Scott's functions over the course of the season were
those which were anticipated when he was initially hired as a
fisherman, that there was no basic assignment change in the sense
contemplated by Chandris which would justify measuring his vessel-
related activity over less than the full season he worked. Out
of deference to my colleagues in the majority, and based on the
two job inferences which can be drawn from Scott's affidavit, it
might also be reasonable to remand for a determination by the
jury as to whether as a matter of fact a basic assignment change
occurred. However, to rule that as a matter of law a basic
assignment change took place seems distinctly wrong in view of
the Briggs' affidavits and admissions of their counsel concerning
the nature of a set net fisherman's activity, the wide divergence
between the examples given by Chandris of a basic assignment
change and the transition between preparation for fishing and
fishing which occurred here, and the potential for distorting a
set net fisherman's seaman status when it is measured simply by
the period during the season when actual fishing is taking place.
The Expectant Seaman Rationale
The expectant seaman rationale employed by the majority
opinion is based on Desper v. Starved Rock Ferry Co., 342 U.S.
187 (1952). Desper was a seasonal employee. During the summer
he would operate one of his employer's small tour boats. He was
killed before the tourist season began while painting life
preservers for use on the boats. Id. at 188-89. The Court held
that Desper was not a seaman for Jones Act purposes, stating:
The many cases turning upon the question
whether an individual was a "seaman"
demonstrate that the matter depends largely
on the facts of the particular case and the
activity in which he was engaged at the time
of injury. The facts in this case are
unique. The work in which the decedent was
engaged at the time of his death quite
clearly was not that usually done by a
"seaman." The boats were not afloat and had
neither captain nor crew. They were
undergoing seasonal repairs, the work being
of the kind that, in the case of larger
vessels, would customarily be done by
exclusively shore-based personnel. For a
number of reasons the ships might not be
launched, or he might not operate one. To be
sure, he was a probable navigator in the near
future, but the law does not cover probable
or expectant seamen but seamen in being. It
is our conclusion that while engaged in such
seasonal repair work Desper was not a
"seaman" within the purview of the Jones Act.
The distinct nature of the work is emphasized
by the fact that there was no vessel engaged
in navigation at the time of the decedent's
death. All had been "laid up for the
winter." (Citations omitted.) In the words
of the court in Antus v. Interocean S.S. Co.,
108 F.2d 185, 187 [(C.A. 6th Cir.)], where it
was held that one who had been a member of a
ship's crew and was injured while preparing
it for winter quarters could not maintain a
Jones Act suit for his injuries: "The fact
that he had been, or expected in the future
to be, a seaman does not render maritime work
which was not maritime in its nature."
342 U.S. at 190, 191.
Desper was not overruled by the Supreme Court in
Chandris although some of its language was questioned. Id. at
2187. Thus it may be correct to read Desper, as the majority
does, as holding that the point in time when a claimed seaman
starts to work on a vessel in navigation marks the beginning of
the period in which the claimed seaman's status is to be
measured. Until then perhaps the employee is merely a probable
or expectant seaman.
If Desper applies and requires that before seaman
status can be established the employee must have begun work on a
vessel in navigation, the record must be examined to see whether
Scott had done any work aboard the Briggs' skiffs before he was
injured. The parties did not address this point and the record
is completely silent concerning it. The burden was on the
Briggs, as movants, to demonstrate the absence of genuine issues
of material fact in order to be entitled to summary judgment. It
was thus their obligation to establish that as of the time of the
accident Scott had not done any work aboard their skiffs. Since
the record does not demonstrate this, summary judgment must be
The majority opinion's response to the point concerning
Scott's service aboard a vessel before he was injured is
interesting. It states that there is evidence that Scott did not
work aboard the vessels before his injury. Slip Op. at 6 n.9.
In support of this, Emorene Briggs' first affidavit is cited.
This affidavit states in relevant part:
1. My husband and I are
commercial fishermen and have fished our
set net sites on the Ugashik River for
over twenty years.
2. In 1990 and 1991 we employed
Bruce Scott who fished on shore at these
sites. He was not salaried, he fished
on shares. . . .
The majority interprets Mrs. Briggs's statement that Scott fished
on shore as equivalent to sworn testimony that Scott did no work
aboard the Briggs' skiffs. There clearly is no such equivalency.
Mrs. Briggs in her second affidavit stated that the
Briggs "have several skiffs we use to set out and pick up the set
nets." She stated that Scott was employed as a fisherman and
that "getting boats, nets, outboard motors, buoys and running
lines ready and into the water is part of the work of a
fisherman. . . ." In order to interpret Mrs. Briggs statement
that Scott fished on shore as meaning that he did not work aboard
the Briggs' skiffs one must accept a division of labor among the
fishermen working for the Briggs in which certain fishermen
operate and work aboard their skiffs and others do not, and that
Scott was among those who did not. Such an assumption for a
family owned set net operation defies credulity.
Further, the inference that Mrs. Briggs' statement that
"Scott fished on shore" means that he did not work aboard skiffs
is contradicted in the Briggs' brief. The Briggs state that
Scott "used skiffs to service the set nets from time to time."
Finally, if it is reasonable to infer from Mrs. Briggs'
"fished on shore" statement that she meant that Scott did no work
aboard their skiffs, and therefore did no work aboard their
skiffs prior to the time he was injured, such an inference can
nonetheless not be used to support the summary judgment unless it
is a necessary inference. This is so because in adjudicating
summary judgments all reasonable inferences must be drawn in
favor of the nonmoving party and against the movant. Such an
inference is hardly necessary since it would be reasonable to
conclude that Mrs. Briggs in making the "fished on shore"
statement did not intend to imply that Scott never worked aboard
the skiffs. Rather than drawing a reasonable inference in favor
of the nonmoving party, as required by our case law concerning
summary judgments, the majority has, in my view, done the
opposite and drawn an unreasonable inference in favor of the
The record in this case is sparse with respect to the
facts which are relevant to Scott's Jones Act claim. This case
was presented to the superior court before the United States
Supreme Court's Chandris decision was published. Thus neither
the parties nor the superior court had the benefit of the
focusing effect which Chandris had on a large, confusing, and in
some cases conflicting body of Jones Act case law. It is
therefore not a complete surprise that the facts relevant to a
determination of Scott's claimed seaman status were not
There are unresolved genuine issues of material fact.
The essential question is whether Scott had a connection to an
identifiable group of vessels in navigation which was substantial
in terms of both its duration and nature. A question subsidiary
to this relates to the thirty percent guideline: How much time
during the course of Scott's work as a set net fisherman for the
Briggs, expressed as a percentage, did Scott spend working
aboard, or in service of, their skiffs? Further, since the
majority is not inclined to rule as a matter of law that Scott's
employment as a fisherman was unitary, was there a basic
assignment change justifying excluding Scott's pre-salmon
catching activity as work as a seaman? Finally, to address the
expectant seaman rationale, as of the time of his injury had
Scott begun to serve aboard any of the Briggs' skiffs?
For the above reasons I would reverse the summary
judgment pertaining to Scott's Jones Act claim and remand the
claim to the trial court for resolution along with Scott's
general negligence claims.
1 Scott was not a salaried employee, but fished "for shares," i.e., a
percentage of the fish caught.
2 In an affidavit filed in opposition to the Briggs' motion for summary
judgment, Scott stated: "I was a maintenance person prior to the salmon
season and worked as a crewmember at their set net site during the salmon
season. I worked on machinery and rebuilt engines prior to the season
starting." Further, he stated: "At least two weeks before the salmon
season opened . . . I was ordered to move several large set net buoys . . .
." Further, he stated: "[t]he setnet operation I was scheduled to work on
utilized several 23 foot boats . . . I crewed these boats and tended all
aspects of the set nets during the season. The buoys being lifted during
the accident were for the setnet operation." (Emphasis added.) In his
Memorandum in Support of Opposition to Defendants['] Motion for Summary
Judgment, Scott asserted that "[t]he set net salmon season was not set to
start for 2-3 weeks after this [accident] happened," and that "when this
accident took place the season had not yet started."
3 We review summary judgment to determine whether there exists any genuine
issue of material fact, and whether the moving party is entitled to
judgment as a matter of law. Zeman v. Lufthansa German Airlines, 699 P.2d
1274, 1280 (Alaska 1985). In doing so, we draw all reasonable inferences
of fact in favor of the non-moving party. Id. Issues of negligence
ordinarily are not susceptible to summary adjudication. See Sweaney v.
Alaska Cent. Airways, Inc., 658 P.2d 780, 781 (Alaska 1983); Webb v. City &
Borough of Sitka, 561 P.2d 731, 735 & n.16 (Alaska 1977); Lillegraven v.
Tengs, 375 P.2d 139, 142 & n.16 (Alaska 1962).
4 The parties dispute (1) whether Scott requested permission to move the set
net buoys with chains instead of a forklift; (2) whether Scott's injury was
caused by the Briggs' failure to supervise the buoy-moving procedure or
Scott's negligence in "put[ting] his hand in the wrong place"; or (3)
whether Connor was operating the forklift negligently so as to impose
vicarious liability on the Briggs.
5 The Jones Act, 46 U.S.C.A. ' 688 (1988), provides in part: "Any seaman who
shall suffer personal injury in the course of his employment may, at his
election, maintain an action for damages at law, with the right to trial by
jury . . . ." Summary judgment is appropriate where there is no
evidentiary basis from which to conclude that a plaintiff is a "seaman."
Bowers v. Kaiser Steel Corp., 422 P.2d 848, 854-55 (Alaska), cert. denied,
388 U.S. 910 (1967).
6 Courts have found small boats such as skiffs to be "vessels" under the
Jones Act. See, e.g., Stallworth v. McFarland, 350 F. Supp. 920 (W.D. La.
1972), aff'd, 493 F.2d 1354 (5th Cir. 1974)(employee drowned when fourteen
foot skiff in which he was riding swamped on navigable lake); Spiller v.
Thomas M. Lowe, Jr. & Assocs., Inc., 328 F. Supp. 54 (W.D. Ark. 1971),
aff'd, 466 F.2d 903 (8th Cir. 1972)(employee drowned when sixteen foot
skiff in which he was riding capsized on navigable river).
7 In an insurance report to the Alaska Department of Labor, Fishermen's Fund,
Emorene Briggs provided the following answers:
Name of vessel Set net site
The vessel does have Protection and Indemnity (P & I) insurance.
The deductible amount is .
(Briggs wrote through this question: "N/A".)
A claim has been made to the P & I insurance carrier.
A claim has not been made to the P & I insurance carrier because:
(Briggs wrote in this space: "No - vessel setnet fisherman".)
8 The Briggs correctly note that "a crew at a set net site is not necessarily
the crew of a single skiff." We express no opinion, however, as to whether
Scott, if working on a skiff in the service of a set net on the Ugashik
River, may be exposed to "the special hazards and disadvantages to which
they who go down to the sea in ships are subjected." Latsis, 115 S. Ct. at
2190 (quoting Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104 (1946)
(Stone, C.J., dissenting)).
9 The dissent would find that a genuine, material factual dispute exists
concerning Scott's claim that he was a seaman. The affidavit of Emorene
Briggs, filed in support of the Briggs' Motion for Summary Judgment, stated
that "Scott . . . fished on shore at these sites." Fishing on shore is not
crewing a twenty-three foot boat. Attached to Ms. Briggs' affidavit was
the report described in footnote 7, supra, which in essence stated that no
vessel was involved in the accident. Scott countered with a description of
his duties before salmon season started, his duties after salmon season
started (which allegedly included "crew[ing] these [twenty-three foot]
boats"), the fact that the accident happened at least two weeks before the
salmon season started, and that the accident happened on shore while using
a forklift to move a buoy. While there may be a dispute about Scott's
activities after salmon season started, there appears to be no dispute as
to his duties before salmon season started.
Scott's affidavit that he was on the water part of the time does not
controvert in its entirety Ms. Briggs' assertion that his activities were
shore based. It only does so with respect to activities taking place after
salmon season started. The facts that appear controverted (activities
during salmon season), as distinguished from those which do not appear
(activities pre-salmon season) are not what is at issue in this case.
10 I quote in full the relevant paragraphs of Scott's affidavit:
2. During the summer of 1990, I was employed by the above
defendants to work at their fishing operation in Ugashik, Alaska.
3. I was a maintenance person prior to the salmon season and
worked as a crewmember at their set net site during the salmon
season. I worked on machinery and rebuilt engines prior to the
4. At least two weeks before the salmon season opened on June
12, 1990, I was ordered by Roger Briggs, one of my employers, to
move several large set net buoys with a forklift. Ryan Connor, a
co-worker, drove the forklift.
5. I asked Mr. Briggs to use chains to secure, lift, and move
the buoys. However, Mr. Briggs disagreed with me and directed
Mr. Connor and myself to only use the forklift and put the prongs
through the eyes of buoys to
6. As we did this Mr. Connor pushed the forklift into a buoy
causing it to fall on my hand and crush my finger.
. . . .
8. The set net operation I was scheduled to work on utilized
several 23 foot boats, which were owned by the defendants. I
crewed these boats and tended all aspects of the set nets during
the season. The buoys being lifted during the accident were for
the set net operation.
11 The tenor of counsel's memorandum in opposition to the Briggs' motion for
summary judgment is captured in the following language taken from the
Plaintiff was doing maintenance work when this happened and should be
covered by Alaska Workers' Compensation benefits, since he does
not meet the exclusion of the statute. The set net salmon season
was not set to start for 2-3 weeks after this happened. Alterna
tively, if the plaintiff was a crewmember, as defendants argue,
then they are liable to him under the Jones Act . . . and/or
general maritime law. . . .
Although Scott's counsel's assertions of fact, to the extent that they do not merely
duplicate assertions in Scott's affidavit, cannot be used to oppose the
Briggs' motion for summary judgment, they may be used as evidentiary
admissions of a party opponent to support the Briggs' motion. Alaska R.