Sean A. JANES and Jennifer M. Janes, Individually, and as Parents and Guardians of Lindie R. Janes, Kameron S. Janes, Kolten J. Janes, and Sienna M. Janes, Appellants,
ALASKA RAILBELT MARINE, LLC, Alaska Marine Lines, Inc., Lynden Incorporated, Northland Services, Inc., and Western Towboat Company, Appellees.
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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, and EASTAUGH, Senior Justice.[*]
EASTAUGH, Senior Justice.
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.
II. FACTS AND PROCEEDINGS
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 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 designed and built in response to an Alaska Railroad request for proposal. The request 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. 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 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 " 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 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 ...