Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

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

Janes v. Alaska Railbelt Marine, LLC (9/20/2013) sp-6829, 309 P3d 867

         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).  



                                                                   -2-                                                                6829  


----------------------- Page 3-----------------------

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.  

                                                                                       



                                                            -3-                                                        6829  


----------------------- Page 4-----------------------

        

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  



                                                                -4-                                                         6829
  


----------------------- Page 5-----------------------

                                                          

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  



                                                               -5-                                                         6829
  


----------------------- 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  



                                                                           -6-                                                                     6829
  


----------------------- Page 7-----------------------

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  



                                                                  -7-                                                            6829
  


----------------------- 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).  



                                                             -8-                                                      6829
  


----------------------- Page 9-----------------------

                                                

(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."  



                                                              -9-                                                        6829
  


----------------------- Page 10-----------------------

                                                

                    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.  



                                                             -10-                                                        6829
  


----------------------- Page 11-----------------------

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)).  



                                                                     -11-                                                               6829
  


----------------------- Page 12-----------------------

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.  



                                                                      -12-	                                                                6829
  


----------------------- 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...)  



                                                             -13-                                                        6829
  


----------------------- 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.  



                                                             -14-                                                        6829
  


----------------------- 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...)  



                                                               -15-                                                         6829
  


----------------------- Page 16-----------------------

                                      

                    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  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC