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

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:

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:

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 reasonable inferences are to be construed in the nonmoving party's favor; therefore Claimants' and Plaintiff's motions for summary judgment on Claimants' unseaworthiness claims are denied.61

The Jones Act permits an injured seaman to recover damages against the employer for "personal injury."62 "[P]roof of negligence is [] essential to recovery under the Jones Act."63 To establish a cause of action for negligence under the Jones Act, a Claimant must establish "duty, breach, notice and causation."64 "The employer of a seaman owes the seaman a duty under the Jones Act to provide the seaman with a safe place to work."65 It is undisputed that Claimants were seamen employed by Plaintiff.

However, 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."66 As previously discussed, the parties dispute whether Jay Thomassen was aware that the lazarette was inaccessible.67 Finally, the cause of the vessel's sinking is also disputed. Accordingly, the Court will deny summary judgment to any party as to Claimants' negligence claims.68

Plaintiff alleges comparative fault claims against Captain Berry and Palmer Thomassen for negligence.69 Plaintiff asserts Captain Berry "negligently operated and managed" the vessel and Palmer Thomassen "negligently assisted in the operation and management of the T/V KUPREANOF."70

"[M]ere contributory negligence is not a bar to [the employee's] recovery."71 However, a "seaman-employee may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment."72 No party has expressly moved for summary judgment as to these claims; therefore, whether either of these Claimants was contributorily negligent will also be addressed at trial.73

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.