Shannon v. City of Anchorage

• Citation: 478 P.2d 815
• Decision Date: 31 December 1970
• Docket Number: No. 1186,1186
• Parties: Bert L. SHANNON, Appellant, v. CITY OF ANCHORAGE, a municipal corporation, Appellee.
• Court: Supreme Court of Alaska (US)

Page 815

478 P.2d 815

Bert L. SHANNON, Appellant, v. CITY OF ANCHORAGE, a municipal corporation, Appellee.

No. 1186.

Supreme Court of Alaska.

Dec. 31, 1970.

James K. Tallman, Anchorage, for appellant.

Daniel A. Moore, Jr., of Delaney, Wiles, Moore, Hayes & Reitman, Inc., Anchorage, for appellee.

OPINION

Before BONEY, C. J., DIMOND, RABINOWITZ and CONNOR, JJ., and FITZGERALD, Superior Court Judge.

RABINOWITZ, Justice.

This is the second time that this matter is before the court. On the first appeal, we held that the superior court erroneously dismissed appellant's action for failure to state a claim upon which relief could be granted. ¹

In reaching this conclusion, we held that the allegations of appellant Shannon's complaint to the effect that appellee city of Anchorage was negligent in failing to fulfill its duty of furnishing Jacob's ladders for the use of appellant stated a claim for relief. ² In our opinion we also referred to appellant's deposition and affidavit in which he asserted that the city of Anchorage had customarily provided Jacob's ladders for vessles using its dock facilities. In regard to these allegations, we said that

if the allegations of appellant as to custom and practice are true, appellee may have assumed a duty toward persons on vessels using its dock to provide a reasonably safe means of access to the dock, and that appelee may not relieve itself of that duty by failing to perform it without exposing itself to liability for injuries such as those suffered by appellant. We find that there may be such a continuing duty to act because of the relative positions of the parties-as a matter of practicality and common sense safe means of access to appellee's dock cannot reasonably be furnished by one in appellant's position at all stages of the tide but can readily be furnished by appellee. ³

Upon remand the case was tried before a jury on the theory that in order to recover appellant had to prove, in part, that appellee's duty of care to provide access to its dock arose from its custom and practice of furnishing Jacob's ladders for vessels and crewmen who used its dock. ⁴ The jury returned a general verdict in favor of the city of Anchorage against Shannon. In answer to interrogatories which were propounded, the jury stated that the evidence did not establish a custom or practice on the city's part of furnishing Jacob's ladders as a means of access to its dock; that the evidence failed to show, as a matter of 'practical necessity' that the city was the only one able to furnish Jacob's ladders as a means of access to the top of the dock under circumstances substantially similar to those present in the case at bar; that under the evidence the city was not negligent in failing to provide appellant with a Jacob's ladder as a means of access; that appellant Shannon was contributorily negligent and that his own negligence was a proximate cause of the injuries which he sustained. Shannon now brings this appeal from the judgment which the trial court entered dismissing his action on the merits.

In his appeal, Shannon advances numerous specifications of error in which it is asserted that the trial court erroneously failed to apply the Jones Act, as well as general admiralty law, in its charge to the jury; that the interrogatories which were propounded were overly restrictive and misleading; that the interrogatories and general verdict were inconsistent; that the court's instruction on the issue of duty arising from establishment of custom was too restrictive; and that the trial court erroneously submitted the issue of Shannon's contributory negligence to the jury for determination. Although we are of the view that several of appellant's specifications of error are meritorious, we nevertheless think that the superior court's judgment of dismissal should be affirmed.

Appellant Shannon was a merchant seaman on the ALASKA ROUGHNECK, a supply tug owned by Foss Launch and Tug Company which was operating in the waters of Cook Inlet. On April 7, 1963, shortly after 7 p. m. near high tide, the ROUGHNECK towed Foss Barge Number 99 to the Anchorage city dock. The barge was tied to the south end of the city dock and the ROUGHNECK was tied up on the side of the barge away from the dock. At approximately 10 p. m., due to the captain's concern regarding floating ice coming in from Knik Arm, meansures were taken to secure the vessels with additional lines. In order to secure the tug and barge with more lines, Shannon placed a straight wooden 18-foot ladder from the barge to the top of the dock and began to climb it. A fellow crew member braced the bottom of the ladder with his feet. In the course of Shannon's ascent, the barge shifted due to the tidal currents, ice, or combination of both, the ladder slid off the top of the dock, and Shannon fell some 25 feet onto a floating camel log located between the barge and the dock.

In this appeal, Shannon argues that because he was a seaman injured on the sea in the course of his employment, the Jones Act ⁵ and general admiralty law is controlling, and he therefore may recover under tort or admiralty theory. The city of Anchorage takes the position that appellant's Jones Act action could only be brought against his employer, Foss Launch and Tug Company, and that admiralty law is inapplicable because the accident did not occur on navigable waters but on land. ⁶

Under article III, section 2 of the United States Constitution federal judicial powers are extended to 'all cases of admiralty and maritime jurisdiction.' Section 9 of the Judiciary Act of 1789, which implemented this constitutional grant, provided that:

(T)he district courts * * * shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction * * * saving to suitors, in all cases the right of a common law remedy, where the common law is competent to give it * * *. ⁷

This statute reserves to the federal courts in admiralty exclusive jurisdiction over in rem admiralty actions, that is, claims in the nature of maritime liens to be enforced usually against vessels. Generally, the 'saving to suitors' clause means that a suitor asserting an in personam admiralty claim may elect to sue in a 'common law' state court through an ordinary civil action. ⁸ In such actions, the state courts must apply the same substantive law as would be applied had the suit been instituted in admiralty in a federal court. ⁹ Thus, in the case at bar, for the superior court to have been correct in its rejection of admiralty law, the case must not be one within admiralty jurisdiction.

Admiralty jurisdiction provides 'fairly complete coverage of the primary operational and service concerns of the shipping industry, with a few anomalous exceptions.' ¹⁰ Suits for personal injuries to seamen while aboard vessels on navigable waters generally fall within admiralty jurisdiction. The Jones Act provides for recovery by a seaman for injuries in the course of employment. This act reads in part:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply * * *. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located. ¹¹

The case law has made it clear that seamen may bring saving to suitors clause suits under the Jones Act in state courts. ¹² Apparently maritime rules of substantive law, as modified by the Jones Act, apply in saving clause cases in state courts under the Jones Act. ¹³ In the case at bar, appellant contends that Jones Act actions lie against non-shipowner third party tortfeasors as well as shipowners employers. We find no merit in appellant's position for it is well established that a Jones Act cause of action lies only against an employer by his employee. ¹⁴ Since this type of relationship did not exist between Shannon and the city, Shannon cannot maintain a Jones Act action against the city.

We next turn to the question of the applicability of admiralty law and to the city's contention that this is not a case in admiralty because Shannon's injury occurred on land rather than navigable waters. The answer to this issue is twofold. The comparatively recent Admiralty Jurisdiction Extension Act provides in part that:

The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.

In any such case suit may be brought in rem or in personam according to the principles of law and the rules of practice obtaining in cases where the injury or damage has been done and consummated on navigable water * * *. ¹⁵

The city of Anchorage concedes that under this statute the injury need not necessarily be caused by the vessel itself provided it results from the acts of the vessel's personnel or acts connected with the vessel's operation. ¹⁶ We think appellee's concession appropriate for under the facts of this record it is clear that jurisdiction is present under the Admiralty Jurisdiction Extension Act, which extends the admiralty jurisdiction to all cases of injury caused by vessels on navigable water 'notwithstanding that such * * * injury be done or consummated on land.'

Even prior to the enactment of the Admiralty jurisdiction Extension Act, it was held in The Admiral Peoples, ¹⁷ the leading case on this question, that a fall from a ship's gangplank onto a dock comes within the admiralty jurisdiction. It has been clear since The Admiral Peoples that admiralty jurisdiction extends to a fall from a ship's ladder, regardless of whether...