USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 94-2198

EDWARD J. MCALEER, ADMINISTRATOR OF

THE ESTATE OF JAMES F. MCALEER, AND
HARDY LEBEL AND JOAN LEBEL, ADMINISTRATORS
OF THE ESTATE OF THOMAS A. LEBEL,

Plaintiffs, Appellants,

v.

TRAVER C. SMITH, ADMINISTRATOR OF THE

ESTATE OF STUART A. FINLAY,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

____________________

Before

Cyr, Circuit Judge,

_____________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

Edward M. Pitts
_________________

with

whom Pitts & Pitts

_______________

was

on

brief

appellants.
Holly S. Harvey with whom
_______________

Thornton, Davis & Murray, P.A., was

_______________________________

brief for appellee.

____________________

June 19, 1995

____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.

Plaintiffs-appellants appeal

_____________

from

the

district

court's

grant of

summary

defendant-appellee in this admiralty case.

judgment

to

We affirm.

I.
I.
__

BACKGROUND
BACKGROUND
__________

On

June 3,

participant in

1984,

the Tall

Ship

the Cutty Sark International

S/V MARQUES,

Tall Ships Race

between Bermuda and Nova Scotia, encountered a violent squall

about

eighty miles

northeast

of Bermuda.

Almost

without

warning, and within seconds of starting to take on water, the

vessel sank

with the

loss of nineteen

of the

twenty-eight

persons on board, including the plaintiffs' decedents and the

defendant's decedent, the vessel's

master or captain, Stuart

A.

Finlay.

Thomas

Plaintiffs'

A. Lebel,

were

decedents,

on board

James

under

F. McAleer

the auspices

and

of

sailing program run by the American Sail Training Association

("ASTA"),

which had arranged

for six sail

trainees to crew

for the MARQUES during the race.

Plaintiffs

unseaworthiness

negligence

under

negligence under

under

the

brought

the

Jones

claims

against defendant

general

Act,

46

maritime

U.S.C.

the general maritime law;

law;

688;

The district court

to defendant, holding

for

for

and for wrongful

death under the Death on the High Seas Act, 46 U.S.C.

768 ("DOHSA").

for

761-

granted summary judgment

that defendant could not be liable for

-22

unseaworthiness

MARQUES,

because

McAleer v.
_______

Finlay

Smith, 818
_____

was

F.

not an

owner

Supp. 486,

of

the

494 (D.R.I.

1993); for negligence under the Jones Act, because Finlay did

not

employ

negligence

plaintiffs'

under the

claims cannot

decedents,

general

be brought by

id.
___

maritime

at

law,

493-94;

because

seamen against masters,

for

such

id. at

___

496; or under DOHSA,

because DOHSA is a derivative

action requiring the existence

here,

id.
___

at

496-97.

From

cause of

of another claim not existent

that

judgment

this

appeal

followed.1

II.
II.
___

DISCUSSION
DISCUSSION
__________

A. Standard of Review
______________________

As always,

we review

a district court's

grant of

summary judgment de novo and, like the district court, review

__ ____

the facts in the light most favorable to the nonmoving party.

See, e.g., Lareau v. Page, 39 F.3d

___ ____ ______
____

384, 387 (1st Cir. 1994).

Summary

judgment

depositions,

is

appropriate

answers to

file, together with

when

"the

interrogatories, and

pleadings,

admissions on

the affidavits, if any, show

that there

____________________

1.

The district court granted defendant's motion for summary

judgment
held a

on April 8,
trial to

default judgments

1993.

determine

The

district court nonetheless

damages because

against the co-owners of

McAleer v. Smith, 860

_______
_____

F. Supp. 924, 930 n.10

On October 18, 1994, the district

it had

entered

the MARQUES, see

___
(D.R.I. 1994).

court entered judgments of

$403,246.57 for Lebel and $322,597.25 for McAleer against the

co-owners, and entered final

judgments in favor of defendant

in the instant appeal and other defendants.

-33

is no

genuine issue as

to any

moving party is entitled to

material fact

and that

a judgment as a matter

the

of law."

Fed. R. Civ. P. 56(c).

B. Unseaworthiness
___________________

Shipowners

are

liable

to

indemnify

seamen2 for

injuries "caused by the unseaworthiness of the vessel

appurtenant appliances and equipment."

Sieracki,
________

328 U.S. 85,

U.S. 158 (1903)).

90 (1946)

or its

Seas Shipping Co. v.

_________________

(citing The Osceola, 189

____________

Unseaworthiness "is essentially a species

of liability without fault . .

duty."

Id. at 94-95;
___

. . It is a form

see also
___ ____

Grant Gilmore &

Black,

Jr., The Law of Admiralty

______________________

1975).

Shipowners may

seaworthy ship.

of absolute

6-41,

Charles L.

at 393

not delegate their duty to

(2d ed.

provide a

Sieracki, 328 U.S. at 94 n.11.

________

Plaintiffs

concede

that Finlay

did

not

own the

MARQUES, which was co-owned by Mark Shirley Portal Litchfield

and Robin

Patrick Cecil-Wright,

the sole principals

in the

China Clipper Company, an unincorporated holding company that

held title to the

Finlay is

MARQUES.

Plaintiffs argue,

however, that

nonetheless liable for unseaworthiness

was an owner pro hac vice.

___ ___ ____

because he

____________________

2.

For

the purposes

assume arguendo,
________
trainees in

of

this summary

as Judge Selya

Heath v.
_____

judgment motion,

did for other

644 F.

1986) (Selya, J.), that plaintiffs'

decedents were seamen despite the fact that they

(indeed,

MARQUES sail

American Sail Training Ass'n,

_____________________________

Supp. 1459, 1468 (D.R.I.

we

themselves paying

for

board as trainees).

-44

the privilege

were unpaid
of being

on

An "owner pro
___

hac vice"
___ ____

of a vessel

is "one

`stands in the place of

the owner for the voyage

contemplated

the

and bears

though the latter

or service

owner's responsibilities,

remains the legal

who

owner of the

even

vessel.'"

Matute v. Lloyd Berm. Lines, Ltd., 931 F.2d 231, 235 n.2 (3d
______
________________________

Cir.)

(quoting Aird v. Weyerhaeuser S.S. Co., 169 F.2d 606,

____
______________________

610 (3d Cir. 1948), cert. denied, 337 U.S. 959 (1949)), cert.
_____ ______
_____

denied,
______

502

purposes,

See
___

242.

919

(1991).

an owner pro hac

___ ___

Reed v.
____

generally
_________

U.S.

The Yaka, 373

_________

In

effect,

vice is treated
____

U.S.

for liability

as a shipowner.

410, 412-13

(1963);

Gilmore & Black, The Law of Admiralty

_____________________

Thus,

an owner

pro hac

vice may

be liable

see
___

4-23, at

for the

___ ___

unseaworthiness of a vessel.

In general,

owner

if there

will be

is an

absolved

____

See Reed, 373 U.S.

___ ____

owner pro
___

of personal

at 412-13.

hac vice,
___ ____

the title

liability (except

defective conditions

that existed

before the owner

vice took control of

____

the vessel).

See Ramos
___ _____

for

pro hac
___ ___

v. Beauregard,
___________

Inc., 423 F.2d 916, 917-18 (1st Cir.), cert. denied, 400 U.S.
____
_____ ______

865 (1970); see generally Thomas J. Schoenbaum, Admiralty and

___ _________
_____________

Maritime Law
____________

5-3, at 168 (1987).

Admiralty cases

owners

pro hac
___ ___

vice:
____

have recognized only two

demise,

or bareboat,

types of

charterers and

captains of fishing vessels operated under agreements, called

"lays."

vessel

demise charterer

itself and

assumes

is "one who

exclusive

contracts for

the

possession,

control,

specified

period,"

-55

command

and

Stephenson
__________

navigation

thereof

for a

v. Star-Kist Caribe, Inc., 598 F.2d 676, 679 (1st

______________________

Cir. 1979), in

"contracts

service

contrast to

not

for the

a time or

vessel

of the vessel, such

rendered

by

charters are

completely

the

owner's

created when

and

master

to, though

ownership.

and

"the owner of

command, and navigation thereof

transfer of

itself but

as carriage of

exclusively

therefore tantamount

voyage charterer

for

a specific

goods, which is

crew,"

id.
___

party at all."

699-700

(1962) (internal

see generally Gilmore &

___ _________

Demise

the vessel

. .

relinquish[es]

possession,

to the demisee.

[They

just short of,

However, anything short

Guzman v. Pichirilo,
______
_________

quotation and

are]

an outright

of such

complete transfer is a time or voyage charter party

charter

who

or not a

369 U.S. 698,

citations omitted);

Black, The Law of Admiralty

____________________

4-21,

at

240.

While

demise

charterers

may

be

liable

for

unseaworthiness as owners pro hac vice, see Reed, 373 U.S. at

___ ___ ____ ___ ____

412-13, time or voyage charterers may not be, see Stephenson,

___ __________

598

F.2d

at 679;

Inc., 736
____

see also
___ ____

Rodriguez v.
_________

F.2d 813, 815 (1st Cir. 1984).

McAllister Bros.,
_________________

The mere fact that

a time or voyage charterer "`has some control over the master

. . [or] selects the routes to be taken or the cargo to be

carried

does

Stephenson,
__________

not

598

make

F.2d at

him

the

681

-66

owner

(quoting

pro
___

hac
___

vice.'"
____

Fitzgerald v.
__________

A.L.
____

Burbank & Co., 451 F.2d 670, 676 (2d Cir. 1971)) (alterations
_____________

in Stephenson).
__________

Captains

which

of vessels

operated under

fishing lays,

are agreements under which the participating fishermen

share the catch, may also be

See Cromwell v.
___ ________

Slaney, 65
______

liable as owners pro hac

___ ___

F.2d 940, 941

(1st Cir.

vice.
____

1933).

Such

situations

are

similar

to

demise

charters,

for

fishing-lay captain will only be found to be an owner pro hac

___ ___

vice
____

if "the

captain employs

the members

of the

crew and

controls all the operations of the vessel, both in purchasing

supplies for the

voyage, in determining where he

how long, and in disposing of the catch and

bills."

the context of a

status as an owner

find

settling all the

Id.
___

Plaintiffs cite

outside

will fish,

an owner

than, say,

no case,

fishing lay that

pro hac vice.

___ ___ ____

liable

and we have

found none,

accords a master

In fact, many of our cases

precisely because
_______

the owner

(rather

the time charterer) provided the master and crew.

See Stephenson, 598 F.2d at 680.

___ __________

that

masters are not owners

despite

having

control on

control

(defining

"master" as

vessel");

46 U.S.C.

pro hac vice

___ ___ ____

over

behalf of the

As a general rule, we think

the

owner.

vessel,

that

10101(1)

having command

10101(2) (defining

-77

exercises

Cf. 46 U.S.C.
___

"the individual

person to whom the vessel belongs").

because a master,

"owner" as

of a

"the

Plaintiffs argue, however, that even if masters are

not generally considered

to be owners pro hac

___ ___

Finlay had responsibilities for

beyond

vice, Captain
____

and interests in the MARQUES

those of an ordinary master that render him liable as

an owner pro hac

___ ___

vice.
____

that

full

Finlay had

In particular, plaintiffs

operational control

of the

point out

MARQUES,

except that he had to report itinerary changes to the owners;

that

Finlay drew the

crew members,

and that

"read" his orders; that

ship's regulations for

everyone on

board

both mates and

was required

to

Finlay's contract with the MARQUES's

owners designated

engaged in

him as

promoting the

charters and cruises, for

addition to his

business of

to

which he was paid a

negotiate directly

young

chief instructor of the

Antiguans

Regulations"

in

provided

____________________

such as

Finlay was required

obligated

with suppliers

to

supplies in exchange for publicity

or other recompense arrangements;

and expected to use the

was

commission in

towards expenses and was

obtain free or discounted

member and

that Finlay

the MARQUES,

monthly base pay;3 that

to solicit contributions

whenever possible

"self-employed";

that Finlay was a founding

Antiguan Maritime School

MARQUES as a training ship to

seamanship;

that

one

and

that

person, the

the

train

"Ship's

captain,

was

3.

Although he

month while
while ashore,

received

1000 British

the MARQUES was at sea

plaintiffs also

pounds sterling

per

and 500 pounds per month

argue that Finlay

was not

salaried employee.

-88

solely

responsible for the safety

board.

Plaintiffs also point out that their decedents had no

contact with the MARQUES's actual

of the ship

and those on

owners, but only with ASTA

and Finlay, and

right

make much of

to direct

and

the fact that

control plaintiffs'

Finlay had

the

decedents in

the

performance of their duties as sail trainees and the right to

fire and/or remove them from the ship.

We fail to see how these facts

an owner pro hac vice.

___ ___ ____

owner pro hac

___ ___

agency,

vice, we are
____

large

charter, are

not subject

arguments

in turn,

mindful not only

fact that time

amounts of

see Stephenson, 598 F.2d

___ __________

think

In determining that Finlay was not an

but also of the

exercise

convert Finlay into

control

at 679.

they support Finlay being

the vessels

they

for unseaworthiness,

While we

even considered

of

charterers, who may

over

to liability

of the law

take plaintiffs'

cumulatively we

do not

considered an owner pro hac

___ ___

vice.
____

While Finlay did

exercise operational control over

the MARQUES, that control

does

is inherent in being a

not

convert

Finlay

Similarly,

drawing

up

orders

are

activities

part

and

into

the ship's

parcel

of

do not accord Finlay

vice.
____

That

Finlay was

does

not make

him an

an

owner

regulations

-99

master's

status as an

designated as

owner pro
___

pro
___

master; it

hac
___

and

vice.
____

giving

duties; such

owner pro hac

___ ___

"self-employed" also

hac vice.
___ ____

Despite

being

"self-employed," Finlay

still functioned as an

owners; he did not assume

agent of the

control of the MARQUES in

right and, accordingly, cannot

be said to have stood

his own

in the

place of the owner.

We

to receive

also do not think that the fact that Finlay was

MARQUES makes

commission

him an

for

business he

owner pro hac

___ ___

brought

vice, any
____

to

more than

the

salesman

paid a commission

paid a bonus

become

for his

for business

brought in or

an owner of the business.

required to

owner pro
___

negotiate with

a businessman

money saved

would

Similarly, that Finlay was

suppliers does not

hac vice; rather,

___ ____

imposed on him by the

sales or

it was just

make him

one of

MARQUES's actual owners.

an

the duties

There

is no

evidence that Finlay was to share in any savings generated by

these negotiations.

all expenses

incurred by

Indeed,

associated

the owners were responsible for

with the

captains for generating

MARQUES, including

those

business or negotiating

for supplies.

Maritime

Nor do we think that Finlay's

role in the Antiguan

School converts

owner pro
___

him into

an

hac vice.
___ ____

While

at some point in the future this may have brought some

business to

both

Finlay and

evidence that

the

the MARQUES, thus being

MARQUES

the

owners of

Finlay had

or that

the

mutually beneficial for

MARQUES, there

actually brought such

arrangements

-1010

for such

is

no

business to

venture had

actually been made.

Nor

is there any

evidence to

suggest

that Finlay had entered into any sort of partnership with the

owners of the MARQUES

therefore, is

regarding the school; the implication,

that Finlay

would have received

his standard

commission for bringing business to the MARQUES if in fact he

ever brought such business from the school.

The fact that the

Ship's Regulations provided that

the captain was solely responsible for the safety of the ship

and those on board does not make Finlay liable for the ship's

unseaworthiness,

because a

shipowner's

seaworthy ship is nondelegable.

n.11.

duty to

provide

See Sieracki, 328 U.S. at 94

___ ________

Holding Finlay to be an owner pro hac vice because the

___ ___ ____

Ship's Regulations made him solely responsible for the safety

of

the ship would defeat the rule of nondelegability, for it

would absolve the

owners of

See Ramos, 423 F.2d

___ _____

be "liable

unseaworthiness.

at 917-18 (holding that owner

for unseaworthy

parted with control over

and that

liability for

could not

conditions arising after

his vessel under a demise

"a shipowner cannot escape

he has

charter"

liability by delegating

partial control of his vessel to an independent contractor").

That plaintiffs' decedents had

MARQUES's

owners, but

only with ASTA

no contact with the

and Finlay,

convert Finlay into an owner pro hac vice.

___ ___ ____

part

in hiring

ASTA to have

plaintiffs' decedents

or in

paying sail trainees on board.

does not

Finlay played no

arranging with

Finlay was not

-1111

to share in

the profits

ASTA, nor in

the

tall

from the

owners' arrangement

any profits from the vessel's

ships

race.

That

Finlay

had

with

participation in

authority

over

plaintiffs' decedents is not indicative of status as an owner

pro
___

hac vice,
___ ____

for any

authority over his crew.

master would

necessarily have

such

To the extent that plaintiffs argue that Finlay was

partner

or co-venturer

undisputed

that

facts make

with

clear, as

the

MARQUES's owners,

the district

the

court noted,

Finlay had no ownership interest in the vessel, did not

share in the profits from the vessel's operations, and had no

control over

the vessel's

itinerary beyond the

control necessarily assumed by a captain.

operational

The marketing

and

commission arrangement raises no inference of a partnership.

Because

plaintiffs have

not

produced facts

that

give rise to an inference that Finlay was either an owner pro

___

hac
___

vice or a partner
____

properly granted to

claims.

in the MARQUES,

summary judgment was

defendant on plaintiffs' unseaworthiness

C. The Jones Act

_________________

Congress passed

the Jones Act in

1920 to abrogate

the Supreme Court's holding in The Osceola, 189 U.S. 158, 175
___________

(1903),

that

seamen could

not

maritime law for the negligence

generally
_________

recover

under the

of the master or crew.

Gilmore & Black, The Law of Admiralty

_____________________

-1212

general

See
___

6-20, at

325-28.

The Jones

Act4 provides

injured

(or killed) "in the

U.S.C.

688.

the

seaman's

McAllister,
__________

remedy to

course of his

a "seaman"

employment."

46

The Jones Act remedy is available only against

employer.

337

U.S. 783,

Cosmopolitan Shipping
Co.
____________________________

787

plaintiffs can recover against

n.6

(1949).

v.

Accordingly,

defendant under the Jones Act

only if Finlay was plaintiffs' decedents' employer.

Plaintiffs

contend that

employees of anyone," they

We do not

agree.

Although

if their

decedents "were

were employees of Captain Finlay.

Finlay exercised authority

over

plaintiffs'

decedents, he

did so

only as

an agent

____________________

4.

The Jones Act provides:

Any seaman who shall suffer personal

injury
may,

in the

course of

at his election, maintain an action

for damages
trial

by

at law,

extending

remedy in
railway
case

the

in such

death

of any

modifying
right

or

injury

to

apply; and

in

of personal
shall
of any

seaman as

such personal

representative

of

action all

common-law

employees

personal

the right

United States

cases

of the

result

with

jury, and

statutes of the
or

his employment

injury the

of such

seaman

may maintain an action for damages at law

with the
such

right of trial by

action all

jury, and in

statutes of

the United

States conferring or regulating the right

of

action

railway

for

employees

Jurisdiction
under the

death

in

in

shall be
such

the

case

of

applicable.

actions shall

be

court of the district in which

of the

the

defendant

employer

resides

or

in

which his principal office is located.

46 U.S.C.

688.

-1313

owners,

and not on his own behalf.

236 (Holding

employer

when

that

"[t]he

time

Cf. Matute, 931 F.2d at

___ ______

charterer

owner .

was

not

seaman's

through the ship's

___________________

captain,
_______

him.

for

hired Matute [the seaman] and eventually terminated

It set the amount of Matute's wages and was responsible

paying

him.

The

captain

supervised

position as oiler.") (emphasis added).

do with arranging with

board

the MARQUES;

"hired" them

benefit

from

monies paid

MARQUES,

in any sense.

having the

by the sail

Nor was

sail

trainees to be

cannot be said

trainees

on board;

on

to have

Finlay to receive

trainees went to the

with a small amount

his

Finlay had nothing to

ASTA for the sail

accordingly, he

Matute in

any

rather,

owners of the

reserved by ASTA

to cover its

expenses.

In

plaintiffs'

arguing

that

Finlay

should

decedents' employer, plaintiffs

be

held

to

be

rely on many of

the same reasons they relied on in arguing that Finlay was an

owner pro hac

___ ___

vice.
____

We need not

re-analyze those

reasons

here because they do not indicate that Finlay was an employer

any

more than they

indicate that

vice.
____

Accordingly,

the district

summary

judgment

defendant

to

on

he was

an owner

pro hac
___ ___

court

properly

granted

plaintiffs'

claims.

D. Negligence Under General Maritime Law

_________________________________________

-1414

Jones

Act

Plaintiffs argue that they are

from defendant for negligence

on two separate theories.

have

such

a cause

entitled to recover

under the general maritime law

First, plaintiffs argue that they

of action

if

their decedents,

as sail

trainees who each paid $750 to crew on the MARQUES, are found

to

be passengers

rather

argue that if their

may

maintain a cause

than seamen.

Second,

plaintiffs

decedents were seamen, they nevertheless

of action

for negligence

against the

master

under the

arguments in turn.

general maritime

law.

We

consider these

-1515

1. Recovery as Passengers
__________________________

Plaintiffs

paid

to

crew

on

now urge

the

MARQUES,

passengers rather than seamen

against the master for

law.

this

that because

they

to the

be

considered

and so have a cause

of action

negligence under the general maritime

Defendant argues, however, that

argument

may

their decedents

district

court,

plaintiffs never made

and

that

in

fact

plaintiffs fought hard to establish that their decedents were

seamen, as

recovery for unseaworthiness and

under the Jones

Act is limited to seamen.

When

raised

asked at oral argument whether plaintiffs had

this argument

counsel

referred

memorandum

of law

judgment.

In

the

in

the

court

district

to a

portion

opposing defendant's

turning to

court,

of

plaintiffs'

plaintiffs'

motion for

plaintiffs' memorandum,

summary

the most

applicable statement we could find reads, "A general maritime

claim for

negligence

exists no

matter what

Finlay was, even if he were found not to be an

vice."
____

stemming

We do not view this

from

passengers.

plaintiffs'

owner pro hac

___ ___

statement as preserving a claim

decedents'

possible

Judge Selya's opinion in

Sail Training Ass'n, 644 F.

____________________

killed in

of

status

as

In fact, in another portion of their memorandum,

plaintiffs cited

(Selya,

the status

J.)

(dealing with

same

accident),

Heath v. American
_____
________

Supp. 1459, 1463

claims

for the

-1616

by

(D.R.I. 1986)

other sail

proposition:

trainees

"It

is

established that the ASTA trainees were considered to be part

of

the

permanent

crew

and

divided

into

duty

watches."

Because plaintiffs did not raise any claims stemming from the

possible passenger status of

their decedents in the district

court, we will not consider them on appeal.

See, e.g., Focus

___ ____ _____

Investment Assocs., Inc. v. American Title Ins. Co., 992 F.2d

________________________
_______________________

1231, 1240 n.12 (1st Cir. 1993).

2. Recovery as Seamen
______________________

Plaintiffs argue that, even if their

considered

maintain

to

have

been

seamen,5

they

decedents are

nonetheless

may

a cause of action against the master for negligence

under the

general maritime law.

Deciding whether

they are

right requires us to examine the history of negligence

under

the general maritime law.

As

a general matter, anyone who is the victim of a

maritime tort is

entitled to bring

See, e.g., Pope & Talbot, Inc. v.

___ ____ ___________________

(1953)

(business invitees

negligence);

an action in

admiralty.

Hawn, 346 U.S. 406, 413-14

____

may bring

a cause of

action for

cf. United NY & NJ Sandy Hook Pilots Ass'n v.

___ ________________________________________

Halecki,
_______

navigable

not

358 U.S. 613,

632 (1959) ("the owner

waters owes to all

inimical

exercising

to

his

reasonable

who are on

of a ship in

board for purposes

legitimate

interests

care").

Seamen,

the

duty

however,

of

were

____________________

5.

Defendant

does

plaintiffs' decedents

not

contest

the

for purposes of

motion.

-1717

seaman
the summary

status

of

judgment

traditionally barred from exercising this remedy with respect

to injuries caused by

"the negligence of the master,

member of the crew."

Gilmore

&

Congress,

Black,

or any

The Osceola, 189 U.S. at 175; see also

____________
___ ____

The Law of Admiralty

______________________

6-21, at

328.

in response to the rule of The Osceola, passed the

___________

Jones Act in order to give seamen "the same rights to recover

for negligence as other tort victims.

It follows, therefore,

that,

can recover

if plaintiff

Jones Act;

is a

if he is not

general maritime law."

6-21,

at

328-29.

seaman, he

a seaman, he can

under the

recover under the

Gilmore & Black, The Law of Admiralty

____________________

Thus,

it

appears

that the

general

maritime law affords seamen no

caused

by a negligent master

may recover for

right to recover for injuries

or crew member,

such injuries from their

but that they

employer under the

Jones Act.

Plaintiffs make several arguments in an

get around

cause

master

the

rule that

seamen have

attempt to

no general

maritime

of action for injuries caused by the negligence of the

or

crew.

Cerqueira, 828
_________

F.2d

First,

863 (1st

plaintiffs

cite

Cir. 1987);

Cerqueira
_________

Stoot v.
_____

v.

D & D
______

Catering Serv., Inc., 807 F.2d 1197 (5th Cir.), cert. denied,
____________________
_____ ______

484 U.S. 821 (1987);

Mahramas v. American Export Isbrandtsen

________
___________________________

Lines, Inc., 475 F.2d 165 (2d Cir. 1973); and Favaloro v. S/S
___________
________
___

Golden Gate, 687 F. Supp.

____________

construe to

grant seamen

475 (N.D. Cal.

a cause

1987), which they

of action for

negligence

-1818

under the general maritime law.

Upon examining each of these

cases, however, we find them distinguishable.

In Cerqueira,
_________

we allowed the equitable

owner of a

boat to

for

sue his brother, the legal

simple

proper

on

negligence,

the

jurisdiction.

basis

positing

of

the

Cerqueira, 828
_________

however, consider the plaintiff

think a shipowner would

Thus,

while

title owner of the boat,

that

court's

F.2d at

jurisdiction seemed

general

866.

We

maritime

did not,

to be a "seaman," nor

do we

generally be accorded seaman status.

Cerqueira may
_________

be read

to

provide a

cause of

action for negligence under the general maritime law, it does

not support plaintiffs' argument

that seamen are entitled to

bring such an action for injuries arising from the negligence

of the master or crew.

In Stoot, the Fifth Circuit considered the claim of

_____

seaman injured

cook,

who

during

was employed

an altercation

by

contractor providing catering

the

with the

vessel's

defendant, an

independent

services on board

the vessel.

The Fifth Circuit held that the catering company could not be

held

vicariously

liable

for the

cook's

intentional

tort

because it was committed outside the scope of her employment.

Stoot, 807 F.2d

_____

at 1200.

In so holding,

however, the Fifth

Circuit stated that the catering company could have been held

vicariously liable to the

seaman for its employee's wrongful

acts if the employee had been

acting in the course and scope

-1919

of

her employment.

Id. at
___

1199.

Based on this, plaintiffs

argue that seamen may assert a cause of action for negligence

under

the

contractors.

contract

general

maritime

law

against

independent

Plaintiffs further argue that because Finlay's

designated

him

as "self-employed,"

he

should be

treated as an independent contractor and his estate should be

liable for his negligence under the general maritime law.

We

need not

decide

whether we

would follow

the

Stoot dictum
_____

granting seamen a cause of action against third

parties for negligence under the general maritime law because

we do not consider Finlay

type

envisioned

by

to have been a third party

Stoot.
_____

Although

designate him as "self-employed,"

an

independent contractor,

agent of

but

the owners of the

his

of the

contract

did

Finlay did not function as

rather as

MARQUES.

an employee

Even if

and

Finlay was an

independent contractor, however, we would hesitate

to extend

Stoot to negligence actions under the general maritime law by

_____

seamen

against

especially

in

seamen cannot

crew under

their

independent-contractor

light of

the

recover for

the general

Supreme

Court's holding

the negligence of

maritime law,

masters,

the master

that

or

see The Osceola, 189

___ ____________

U.S. at 175.

Mahramas
________

cruise ship who

involved a

was employed

hairdresser working

by the owner

of the

aboard a

on-board

beauty salon (not the shipowner) and who was injured when the

-2020

ladder in her cabin

at 167.

allegedly gave way.

We fail to see

the general

Mahramas,
________

475 F.2d

how this case provides a claim under

maritime law against the

master for negligence.

To the extent that plaintiff argues that Mahramas granted the

________

plaintiff a

general maritime cause of

against her independent-contractor

by extension, that plaintiffs

cause of action for negligence

"self-employed"), we

case; the

action for negligence

employer (and

should have a general maritime

against Finlay, since he

think that contention is

court did not consider

liability for negligence under

only under the Jones Act.

therefore,

was

belied by the

the plaintiff's employer's

the general maritime law, but

See id. at 172.

___ ___

Favaloro involved claims brought

________

by the estates of

fishermen killed when the

sank their fishing boat.

cause

of action

defendant tanker collided with and

To the extent that it

for negligence

under the

recognizes a

general maritime

law, Favaloro does not support the inference that such claims
________

may be

brought by

vessel, for it

vessel

Thus,

a seaman against

deals only

and the crew.

all

of

the

with claims

See
___

cases

the master

against a

Favaloro, 687
________

relied

upon

of his

F. Supp.

by

own

colliding

at 477.

plaintiffs

are

that seamen

may

distinguishable from the instant case.

As

second basis

for

finding

maintain an action against their masters for negligence under

the general

maritime law,

plaintiffs rely on

the "Seamen's

-2121

Act

of 1915,"

damages

which

provided:

for any injury sustained

"In

any suit

to

on board vessel

recover

or in its

service seamen having command shall not be held to be fellow-

servants with those under their authority."

688

(1975) historical

note.

See 46
___

Plaintiffs argue

U.S.C.A.

that this

abolishes the

fellow-servant rule,

which the

Supreme Court

had referred to in The Osceola, 189 U.S. at 175, by

___________

we think

the

settled upon

law may

be considered

stating:

as

the following propositions:

. . . .
3.

That all

the

members of

crew, except, perhaps, the master,

____________________________
as
and

between themselves,
hence

seamen

the
are,

fellow servants,

cannot

recover

for

injuries sustained through the negligence

of another member of the crew beyond

the

expense of their maintenance and cure.

(Emphasis added.)

abolished

Plaintiffs conclude

the fellow-servant rule,

their master

seamen may

for negligence under the

We do not agree.

that because Congress

recover from

general maritime law.

The Osceola barred seamen

___________

or

fellow crew

rule, but

members

from suing their

not because

rather because

the general

of the

master

fellow-servant

maritime law

did not

provide seamen with a cause of action for such negligence:

we think

the

settled upon

law may

be considered

as

the following propositions:

. . . .
4.
to

That

recover

the seaman is
an

indemnity

-2222

not allowed
for

the

negligence of the

master, or any

member

of the crew.

Id.;
___

see Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 384

___ _________
___________________

(1918)

(characterizing

"irrelevant"

liable

and holding

the

that

Act

of

shipowners may

1915

not be

as

held

for the negligence of the crew); Gilmore & Black, The

___

Law of Admiralty
_________________

6-20,

at 325-26

abolition of the fellow-servant

to abrogate The Osceola).

____________

of

Seamen's

1915, now

(describing Congress's

rule as an ill-fated attempt

We do not think

itself abrogated

by the

the Seamen's Act

Jones Act,

provided

seamen with a cause of action against a master for negligence

under the general maritime law.

Crews, Inc., 750 F. Supp.

____________

only other case that

may

be liable to a

maritime law,

and

against

his

seaman for negligence

not have

negligence.

Ferreira, 871
________

1989) (holding that

La. 1990), the

under the general

similar argument by

seaman does

master for

Brands, Inc. v.
_____________

214, 215-16 (W.D.

we know of to consider whether a master

rejected a

held that

We note that Kennedy v. Gulf

_______
____

the Jones

negligent crew members liable

the plaintiff

cause of

action

Cf. California Home

___ ________________

F.2d 830,

834-35 (9th

Cir.

Act did not

operate to

make

to their employers for damages

paid to other seamen under the Jones Act because crew members

cannot sue each other for negligence).

We

afford

masters.

seamen

hold that

cause

the

general maritime

of action

for

Accordingly, summary judgment

law does

negligence

not

against

was properly granted

-2323

to defendant

on plaintiffs' counts for

general maritime law.

negligence under the

E. DOHSA
_________

Plaintiffs

argue that they are entitled to recover

against defendant under DOHSA, which provides:

Whenever the
caused

by

death of a person
wrongful

act,

default occurring on the

the

personal

shall be

neglect,

or

high seas . . .

representative

of

the

decedent may maintain a suit for damages

. .

. for

the exclusive benefit

decedent's wife,

of the

husband, parent, child,

or dependent relative against the vessel,

person, or corporation

which would

have

been liable if death had not ensued.

46 U.S.C.

761.

The district court held that DOHSA does not

create any substantive rights, but merely provides a cause of

action against a party "which would have been liable if death

had

not ensued."

agree.

See
___

McAleer, 818
_______

Plaintiffs assert

no

theory

F. Supp.

at 496.

of recovery

We

against

defendant:

they may not

recover against defendant under the

general maritime law for unseaworthiness, under the Jones Act

for

negligence,

or

under

the

general

is

law

Accordingly, there

Finlay or his

estate "would have been liable" to plaintiffs'

was

properly

granted

to defendant

under DOHSA.

III.
III.
____

CONCLUSION
CONCLUSION
__________

-2424

basis under

for

negligence.

decedents if they were still living.

no

maritime

which

Thus, summary judgment

for

plaintiffs' claims

In

granted

hac
___

conclusion,

judgment

was

properly

to defendant because (1) Finlay was not an owner pro

___

vice
____

of

the

unseaworthiness;

MARQUES

(2)

therefore

were

so

was

was

not

not

the

so was not liable

(3) plaintiffs did not

seamen and

and

Finlay

plaintiffs' decedents and

Act;

summary

sue

for

employer

of

under the Jones

argue below that

entitled to

liable

they were not

master

for

negligence under the general maritime law; (4) seamen may not

bring a cause of action against a master for negligence under

the general maritime law; and (5)

under DOHSA because

which

Finlay

or

plaintiffs may not recover

they assert no theory of

his

estate

would

have

recovery under

been

plaintiffs' decedents if they were still living.

our holding, we need not

liable

In light of

consider plaintiffs' request for us

to transfer the case to the District of Massachusetts.

Affirmed.
Affirmed.
_________

to

-2525