In re Angelette, LLC
In re Angelette, LLC
Opinion of the Court
*817Before 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.
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.
Angelette, LLC, is the owner of the T/V Kupreanof ("Kupreanof"). Jay Thomassen is the sole member of Angelette, LLC.
On June 7, 2015, the Kupreanof left Petersburg.
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.
On November 12, 2015, Plaintiff filed its Complaint seeking exoneration from or limitation of liability.
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.
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
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."
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.
"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.' "
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.
B. Unearned Wages
Captain Berry and Palmer Thomassen each assert claims for unearned wages.
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 *821six (6) months after the expiration of this Contract or such claim shall be waived by [individual] for all purposes."
C. Personal Property
Claimants have pled claims for their lost personal property.
[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 *822while 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."
D. Unseaworthiness and Negligence
Claimants allege claims for unseaworthiness and for negligence under the Jones Act.
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."
Claimants assert that stowing and lashing gear on a vessel in a manner that *823blocks access to the lazarette on such a vessel would render that vessel unseaworthy.
The Jones Act permits an injured seaman to recover damages against the employer for "personal injury."
*824However, genuine issues of material fact exist as to Plaintiff's breach, notice and causation. Whether Plaintiff breached its duty to Claimants to provide a safe place to work is disputed, as discussed above. Moreover, even if Plaintiff breached its duty, the parties dispute whether a breach of that duty was the cause of Claimants' injuries. Notice requires that "the employer or its agents either knew or should have known of the dangerous condition."
Plaintiff alleges comparative fault claims against Captain Berry and Palmer Thomassen for negligence.
"[M]ere contributory negligence is not a bar to [the employee's] recovery."
CONCLUSION
In light of the foregoing, Plaintiff's Motion for Partial Summary Judgment at Docket 73 is GRANTED solely as to Claimants' unearned wages claims. Plaintiff's motions at Docket 73 and 75 are DENIED in all other respects. Claimants' Motions for Summary Judgment at Docket 67, Docket 69, and Docket 70 are DENIED.
See also Docket 68 (Claimant Carrillo and Perez's Mem.).
See also Docket 74 (Plaintiff's Mem.); Docket 76 (Notice of Exhibit); Docket 78 (Plaintiff's Mem.); Docket 80 (Notice of Exhibit).
See Docket 82 (Plaintiff's Opp'n); Docket 91 (Claimants Carrillo and Perez's Reply); Docket 86 (Claimants Carrillo and Perez's Opp'n); Docket 88 (Claimant Thomassen's Opp'n); Docket 90 (Claimant Berry's Opp'n); Docket 94 (Plaintiff's Reply); Docket 95 (Plaintiff's Reply).
Docket 100 (Minutes re Oral Arg.).
See Fed. R. Civ. P. 56 ; see also, e.g., Fair Hous. Council v. Riverside Two ,
Docket 68-2 (State of Alaska Business Licensing of Angelette LLC).
Docket 8 (Claimant Carrillo's Answer) at 5, ¶ 7.
Docket 68-4 (Jay Thomassen's Depo.) at 7-9.
Docket 68-4 at 11, 16.
Docket 68-4 at 11-12.
Docket 68-4 at 13.
Docket 68-4 at 13.
See infra notes 58-60 and accompanying text. Claimants allege that while in port in Petersburg, Alaska, "Jay Thomassen, with privity and knowledge, directed the crew to stow and lash the fish pump in an area of the vessel's stern rail. In this position the lazarette's stern deck hatch was covered and/or partially covered such that the lazarette was not accessible." Docket 8 at 6, ¶ 10. Plaintiff responds, "Mr. Thomassen was not on the Petersburg Dock on June 7, 2015. Captain Berry made all the decisions regarding the placement of gear and equipment on the Vessel and on the Vessel's deck." Docket 16 (Plaintiff's Answer and Countercls. to Captain Berry) at 3, ¶ 9.
Docket 68-8 (Declaration of Yolanda Perez) at 1.
Docket 8 at 7, ¶ 15; Docket 68-3 (Captain Berry's Depo.) at 5, 18.
Docket 68-3 at 7.
Docket 68-3 at 9-10.
Docket 68-3 at 8, 10, 12.
Docket 68-3 at 10-11.
Docket 8 at 8-9, ¶ 23. A video of the sinking of the Kupreanof can be found at https://www.youtube.com/watch?v=Djqg8tFlkw4.
Docket 1 (Compl.).
Docket 1 at 4, ¶ 22.
Docket 8 at 10-11.
Docket 8 at 10, ¶ 30.
Docket 8 at 9, ¶ 29.
Docket 16 at 14; Docket 17 (Jay Thomassen's Answer and Countercls. to Palmer Thomassen) at 14.
Moldex-Metric, Inc. v. McKeon Prods., Inc. ,
Flores v. City of San Gabriel ,
Anderson ,
Docket 8 at 11, ¶ 35; Docket 9 at 11, ¶ 35; Docket 10 at 11, ¶ 35, Docket 11 at 11, ¶ 35.
Docket 74 at 1-2 (citing
Docket 86 at 5.
In re BOWFIN M/V ,
Barnes v. Sea Hawaii Rafting, LLC ,
Vaughan v. Atkinson ,
Barnes ,
Brister v. A.W.I. Inc. ,
Plaintiff also asserts that Claimants have waived any argument for maintenance and cure because no timely motion for maintenance and cure was filed. Docket 94 at 1. This argument is without merit. In Barnes v. Sea Hawaii Rafting, LLC , the Ninth Circuit recognized that most maintenance and cure disputes can be resolved through summary judgment.
See Docket 9 at 11, 12, ¶¶ 2, 4 (alleging compensatory damages and attorney's fees for failure to pay unearned wages); Docket 11 at 11, 12, ¶¶ 2, 4 (same); see also Docket 89 at 3; Docket 88 at 3. Mr. Carrillo and Mr. Perez are not making claims for unearned wages. Docket 86 at 2.
Docket 74 at 10 (quoting Docket 22-3 (Captain Berry's Employment Contract) at 4, ¶ 13; Docket 22-4 (Palmer Thomassen's Employment Contract) at 4, ¶ 13; Docket 22-5 (Mr. Carrillo's Employment Contract) at 4, ¶ 13; Docket 22-6 (Ms. Perez's Employment Contract) at 4, ¶ 13).
Docket 88 at 3.
Docket 22-3 at 1; Docket 22-4 at 1; Docket 22-5 at 1; Docket 22-6 at 1 (emphasis added).
Day v. Am. Seafoods Co. LLC ,
Although none of the Claimants expressly makes a claim for personal property in their pleadings, they all allege claims for compensatory damages, which can include personal property. Docket 8 at 12, ¶ 2, (alleging compensatory damages); Docket 9 at 11, ¶ 2 (same); Docket 10 at 12, ¶ 2, (same); Docket 11 at 11, ¶ 2, (same); see also Docket 86 at 2-3; Docket 89 at 6.
Docket 74 at 11.
Docket 86 at 2. Claimants also assert that Plaintiff cannot "limit by contract a seaman's rights and remedies under the Jones Act." Docket 86 at 11. The Jones Act permits an injured seaman to recover damages against the employer for "personal injury."
Docket 22-3 at 4, ¶ 11; Docket 22-4 at 4, ¶ 11.
Docket 22-3 at 4, ¶ 13; Docket 22-4 at 4, ¶ 13; Docket 22-5 at 4, ¶ 13; Docket 22-6 at 4, ¶ 13.
Kissick v. Schmierer ,
Docket 8 at 9; Docket 9 at 9; Docket 10 at 9; Docket 11 at 9.
Walston v. Lambertsen ,
N. Fishing & Trading Co., Inc. v. Grabowski ,
Ribitzki v. Canmar Reading & Bates, Ltd. P'ship ,
Usner v. Luckenbach Overseas Corp. ,
Docket 68 at 20.
See Docket 68-4 at 14 ("Well, if [the gear] was on the stern, it was over [the lazarette openings], but they're still accessible ... [b]ecause the gears stood up about three feet from the deck ... with legs.").
Docket 68-3 at 8, 12.
Plaintiff asserts "[t]here are many truths in life: 1) the sun rises in the East, 2) someday all of us will be absolved of our mortality and go the way of all flesh, and 3) there was no (sea) water in the lazarette of the KUPREANOF on June 10, 2015." Docket 95 at 3. To support this, Plaintiff's expert, Jack McFarland with Alaska Marine Surveyors, Inc., opined as follows:
The cause of the T/V Kupreanof sinking, on a more probable-than-not basis, appears to be due to an unstable condition caused by the Vessel Captain Stephen Berry, where he had burned fuel off one or both of the F/V Kupreanof's starboard side fuel tanks, while in heavy weather, in open ocean conditions, where the stability of the Vessel was compromised, resulting in a sudden listing of the Vessel to port, due to free surface shifting, when the weight on the port side became greater than that on the starboard side, initially, between the port and starboard side fuel tank arrangement, then within the freshwater and fish hold compartments.
Docket 75-6 (Expert Report of Jack L. McFarland dated Oct. 30, 2017) at 24.
Claimants' expert, naval architect Lawson E. Bronson, opined as follows:
The only compartment aft of the center of flotation contributing buoyancy was the lazarette. If this compartment fills with seawater the stern will go under.
...
It is my opinion that the owner was negligent in storing deck cargo in a manner that prevented the crew from entering the lazarette.
Docket 68-9 (Mr. Bronson's Expert Report dated Nov. 30, 2017) at 1, 3; see also Docket 84-5 (Mr. Bronson's Affidavit) at 2, ¶ 4 ("It is apparent from the facts that the KUPREANOF sank as a result of flooding of the lazarette (the sternmost compartment.") ).
In light of the denial of summary judgment to any party, whether Plaintiff is entitled to any limitation of liability as to Claimants' unseaworthiness claims is also to be determined at trial.
Jacob v. City of New York ,
Ribitzki v. Canmar Reading & Bates, Ltd. P'ship ,
See supra notes 58-59 and accompanying text.
Whether Plaintiff is entitled to limitation of liability on Claimants' negligence claims will also be determined at trial.
Plaintiff has not alleged counterclaims for comparative fault against Mr. Carrillo or Ms. Perez. See Docket 18 (Jay Thomassen's Answer and Countercls. to Mr. Carrillo); Docket 19 (Jay Thomassen's Answer and Countercls. to Ms. Perez).
Docket 16 at 14; Docket 17 at 14.
California Home Brands, Inc. v. Ferreira ,
The parties did not brief Plaintiff's breach of contract claims against Captain Berry and Palmer Thomassen. Docket 16 at 12; Docket 17 at 12. Therefore, these claims may also be addressed at trial.
Reference
- Full Case Name
- In the MATTER OF the Complaint of ANGELETTE, LLC, an Alaska limited liability company, Owner of the T/V Kupreanof, Number 562486 for exoneration from or limitation of liability
- Status
- Published