United States District Court, D. Alaska
IN THE MATTER OF THE COMPLAINT OF ANGELETTE, LLC, an Alaska limited liability company, Owner of the T/V KUPREANOF, No. 562486 for exoneration from or limitation of liability, Plaintiff.
IN
ADMIRALTY
ORDER RE PENDING MOTIONS
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
Before
the Court are Claimants Marcos Carrillo and Yolanda
Perez's Motion for Summary Judgment at Docket 67,
Claimant Stephen Berry filed a joinder to the motion at
Docket 69; Claimant Palmer Thomassen filed a joinder to the
motion at Docket 70.[1]Plaintiff Angelette, LLC, as owner of the
T/V Kupreanof, filed a Motion for Partial Summary Judgment
Regarding Wages, Maintenance and Cure and Personal Property
and a Motion for Partial Summary Judgment Regarding
Exoneration from Liability at Docket 73 and Docket 75,
respectively.[2] The motions are fully
briefed.[3] Oral argument on the motions was held on
April 4, 2018.[4] For the reasons set forth below, the Court
will grant Plaintiff's motion as to the unearned wages
claims only; all other motions will be denied.
BACKGROUND
On
cross-motions for summary judgment, the Court must consider
each motion separately to determine whether that party has
met its burden with the facts construed in the light most
favorable to the other side.[5] The facts of the case as
presented by the parties are as follows:
Angelette,
LLC, is the owner of the T/V Kupreanof
(“Kupreanof”). Jay Thomassen is the sole member
of Angelette, LLC.[6] Prior to June 7, 2015, Mr. Carrillo, Mr.
Perez, Captain Berry, and Palmer Thomassen were hired as crew
aboard the Kupreanof for the Bristol Bay salmon
season.[7] In May 2015, Captain Berry and Jay
Thomassen took the Kupreanof to Icicle Seafoods to obtain the
fishing gear for the vessel.[8] On June 1, 2015, the gear was
latched to the boat before the boat was taken over to Piston
& Rudder to have some work done.[9] Jay Thomassen testified that
some of the gear was moved during this process.[10] Jay Thomassen
last saw the vessel on June 6, 2015 at approximately 5 p.m.
at the port in Petersburg, Alaska.[11] At that time, Jay
Thomassen walked by the boat and saw there was gear stored at
the stern of the boat.[12] He testified that he was unsure
whether it was the same gear he had previously seen stored at
the stern of the boat. The parties dispute whether the
equipment was then stowed in a manner that blocked access to
the lazarette and whether Jay Thomassen was directing the
stowage activities.[13]
On June
7, 2015, the Kupreanof left Petersburg.[14] After making
a stop in Juneau, the vessel departed for Bristol
Bay.[15] As the vessel and crew approached the
Fairweather Grounds, the weather picked up; however, the
three-day forecast was for light winds and
seas.[16]
Early
in the morning on June 10, 2015, Captain Berry noted that the
Kupreanof was listing slightly to port. He checked the engine
room but found no water. Captain Berry then shifted fuel out
of the port side tanks to the starboard tanks and engaged all
of the pumps to remove water from inside the
vessel.[17] Captain Berry testified that at that
time, the pumps all worked, including the lazarette pump, but
the crew was unable to check whether water was entering the
lazarette due to the fishing gear stowed on top of it,
blocking access.[18] The vessel began to sink; Captain Berry
ordered the crew to put on survival suits and called Mayday
to the United States Coast Guard
(“USCG”).[19] The captain and crew abandoned the
vessel and were rescued by the USCG shortly before the
Kupreanof sank completely.[20]
On
November 12, 2015, Plaintiff filed its Complaint seeking
exoneration from or limitation of liability.[21] Plaintiff
asserts that any injuries or damages arising out of the
casualty “were occasioned and incurred without the
privity or knowledge of Plaintiff at or prior to commencement
of the voyage.”[22]
Claimants
filed Answers and Presentation of Claims, asserting claims
for negligence and unseaworthiness in addition to maintenance
and cure, attorney's fees, and exemplary
damages.[23] Specifically, Claimants allege that
“Jay Thomassen's decision to stow and lash the fish
pump such that the lazarette could not be accessed via the
lazarette hatch” rendered him negligent and made the
vessel unseaworthy.[24]Claimants allege they sustained physical,
emotional, and psychological injuries from the
incident.[25] Plaintiff asserted counterclaims against
Captain Berry and Palmer Thomassen for contributory
negligence.[26] The parties have filed cross-motions for
summary judgment.
DISCUSSION
I.
Jurisdiction
This is
a case of admiralty and maritime jurisdiction within the
meaning of Federal Rule of Civil Procedure 9(h). The claims
arise under the general maritime law of the United States and
under the Jones Act pursuant to 46 U.S.C. § 30104.
II.
Standard for Summary Judgment
Federal
Rule of Civil Procedure 56(c) directs a court to grant
summary judgment if the movant “show[s] that there is
no genuine issue as to any material fact and that [the
movant] is entitled to a judgment as a matter of law.”
When considering a motion for summary judgment, “[t]he
evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his
favor.”[27] When faced with cross-motions for
summary judgment, the court “review[s] each separately,
giving the non-movant for each motion the benefit of all
reasonable inferences.”[28] To reach the level of a
genuine dispute, the evidence must be such “that a
reasonable jury could return a verdict for the non-moving
party.”[29] If the evidence provided by the
non-moving party is “merely colorable” or
“not significantly probative, ” summary judgment
is appropriate.[30]
III.
Analysis
A.
Maintenance and Cure
Claimants
seek maintenance and cure as well as damages for the failure
to pay maintenance and cure, including attorney's fees
and exemplary damages.[31] Plaintiff seeks summary judgment on
these claims, asserting that “the Limitation of
Liability Act does not require the payment of maintenance and
cure.”[32] Claimants respond that “the
Limitation of Liability Act applies to claims involving the
vessel owner/employer's fault in causing loss and
damages. The vessel owner/employer's maintenance and cure
obligations, conversely, are independent of
fault.”[33]
“The
Limitation of Liability Act limits shipowner liability
arising from the unseaworthiness of the shipowner's
vessel or the negligence of the vessel's crew unless the
condition of unseaworthiness or the act of negligence was
within the shipowner's ‘privity or
knowledge.'”[34] But the remedy for maintenance and
cure is distinct from the remedies for negligence and
seaworthiness.[35] “Maintenance and cure is designed
to provide a seaman with food and lodging when he becomes
sick or injured in the ship's service; and it extends
during the period when he is incapacitated to do a
seaman's work and continues until he reaches maximum
medical recovery.”[36] “The shipowner's duty to
pay maintenance and cure is virtually automatic, regardless
of negligence by the seaman or lack of negligence by the
shipowner.”[37]
The
Fifth Circuit has recognized that
a shipowner cannot limit its liability for maintenance and
cure. It may bring a limitation action only in response to a
finding of negligence or unseaworthiness. As a result, an
award for maintenance and cure is independent of these other
sources of recovery.[38]
The
Court agrees with this analysis. Accordingly, the maintenance
and cure claims are not subject to limitation under the
Limitation of Liability Act. Plaintiff's Motion for
Summary Judgment as to limitation of maintenance and cure
under the Limitation of Liability Act will be denied. All
unresolved claims for maintenance and cure shall be addressed
at trial.[39]
B.
Unearned Wages
Captain
Berry and Palmer Thomassen each assert claims for unearned
wages.[40]
Plaintiff
asserts all claims for unearned wages are barred by the
statute of limitations in 46 U.S.C. § 10602, which
provides in relevant part as follows:
When fish caught under an agreement under section 10601 of
this title are delivered to the owner of the vessel for
processing and are sold, the vessel is liable in rem for the
wages and shares of the proceeds of the seaman. An action
under this section must be brought within six months after
the sale of the fish.[41]
However,
this statute does not apply in this case because no fish were
delivered to the Kupreanof for processing, and no sale of
fish occurred.
Plaintiff
also notes that Claimants' employment contracts provide
in relevant part that an action concerning “any dispute
that arises out of their employment relationship . . .must be
brought within six (6) months after the expiration of this
Contract or such claim shall be waived by [individual] for
all purposes.”[42] Claimants maintain that all claims were
made within the six-month period because the employment
contract was for the 2015 salmon season, which ended
September 30, 2015.[43] But the term of the Claimants'
employment contracts was “for [the] entire 2015 salmon
season aboard the Vessel.”[44]The vessel
sank on June 10, 2015; after that date, Claimants were no
longer “aboard the Vessel.” Moreover,
“[u]nearned wages are only available for the
‘period of employment.'”[45] The
crew's employment period or employment contracts ended on
June 10, 2015. Claimants then had six months, or until
December 10, 2015, to file a claim under the employment
contract to the extent that there were unearned wages for the
period through June 10, 2015. They did not file their claims
until January 20, 2016, past the six-month deadline.
Therefore, Plaintiff's Motion for Partial Summary
Judgment as to Captain Berry's and Palmer Thomassen's
unearned wage claims will be granted.
C.
Personal Property
Claimants
have pled claims for their lost personal
property.[46] Plaintiff maintains that the employment
contract that Captain Berry and Palmer Thomassen entered into
excludes claims against the owner for the loss of personal
property.[47] Claimants respond that “the
provisions of the contract cited do not actually say
petitioner is not responsible for lost personal
property.”[48] Captain Berry's and Palmer
Thomassen's employment contracts each provide in
pertinent part as follows:
[Captain/Engineer]'s personal property is the sole
responsibility of the [Captain/Engineer] and the Owner and
its representatives make no assurances or guarantees for the
safety or condition of [Captain/Engineer]'s personal
property while on board the vessel.[49]
Although each contract addresses the safety and condition of
Claimants' personal property, it does not address
complete loss of property; nor does it address the result if
the owner's negligence or the vessel's
unseaworthiness is found to have caused the loss of
Claimants' personal property.
The
employment agreement between Captain Berry and Palmer
Thomassen and Plaintiff provides that “any dispute that
arises out of their employment relationship will be governed
by the laws of the State of Alaska.”[50] Under Alaska
law, ambiguities in an exculpatory clause of a contract
“will be resolved against the party seeking
exculpation, and that to be enforced the intent to release a
party from liability for future negligence must be
conspicuously and unequivocally
expressed.”[51] Because the employment contracts of
Captain Berry and Palmer Thomassen are ambiguous as to the
responsibilities of the parties should the owner be found to
be negligent or the vessel unseaworthy, partial summary
judgment on Plaintiff's limitation of liability claim
with respect to personal property under general maritime law
will be denied.
D.
Unseaworthiness and Negligence
Claimants
allege claims for unseaworthiness and for negligence under
the Jones Act.[52] Plaintiff seeks to exonerate or limit
its liability under the Limitation of Liability Act.
“In the admiralty proceeding in which a shipowner seeks
to exonerate himself from liability or to limit his
liability, the burden of proving negligence or
unseaworthiness rests upon the claimant.”[53] If the
claimant succeeds in that first-stage endeavor, then the
shipowner must prove the absence of privity or
knowledge.[54] The parties have filed cross motions for
summary judgment as to these claims.
To
prevail on a claim for unseaworthiness, a claimant must
establish “(1) the warranty of seaworthiness extended
to him and his duties; (2) his injury was caused by a piece
of the ship's equipment or an appurtenant appliance; (3)
the equipment used was not reasonably fit for its intended
use; and (4) the unseaworthy condition proximately caused his
injuries.”[55] “A vessel's condition of
unseaworthiness might arise from any number of circumstances.
Her gear might be defective, her appurtenances in disrepair,
her crew unfit. The number of men assigned to perform a
shipboard task might be insufficient. The method of
loading her cargo, or the manner of its
stowage, might be improper.”[56]
Claimants
assert that stowing and lashing gear on a vessel in a manner
that blocks access to the lazarette on such a vessel would
render that vessel unseaworthy.[57] The Court agrees.
However, genuine issues of material fact exist as to whether
the gear on the Kupreanof was actually stowed in a manner
that fully blocked access to the lazarette. Jay Thomassen
testified that when he was at the vessel in Petersburg on
June 6, 2015, the gear on the stern did not block access to
the lazarette.[58] Yet Captain Berry testified that the
crew were unable to access the lazarette to inspect it on
June 10, 2015 because gear was covering it.[59] The parties
also dispute whether the lazarette actually filled with
water, such that any lack of access to the lazarette may not
have caused the vessel to sink.[60] All ...