Alaska Employment Law

Court of Appeals reverses Burgess’ summary judgment for vessel owners

The 9th Circuit has reversed Judge Timothy Burgess’ summary judgment for the owners of the cargo vessel, Baranof Trader.  Joseph Abruska had been injured performing longshore work on the Baranof Trader, apparently falling through the guard rails.  Abruska recovered from his employer under the LHWCA, and then sued the vessel owners (including the employer) under negligence per se and common law negligence theories.  Abruska argued that the vessel owners violated Coast Guard regulations by using two-course, rather than three-course guard rails.

The Court of Appeals held that the Trader was a cargo vessel rather than an “unmanned tank vesssel,” and therefore was subject to a three-course rail requirement.  Because Abruska belongs to the class of beneficiaries and suffered an injury of the type the regulation seeks to prevent, the only issue remaining on the negligence per se claim is causation.

On Abruska’s common law negligence claim, the Court held that a slack lower safety line was evidence of a breach of the vessel’s turnover duty of safe condition and that “the district court incorrectly applied the duty of active control and duty to intervene standards . . ..”

Judge Wallace dissented.

Christopher Slotee of Atkinson, Conway in Anchorage represents Abruska.  Thomas Waller of Bauer Moynihan in Seattle represents the vessel owners.

Abruska v. Northland Vessel Leasing Co., No. 06-35932 (9th Cir. Dec. 10, 2007)(unpub.).