McAller v. Smith

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 for

appellants.
Holly S. Harvey with whom Thornton, Davis & Murray, P.A., was on

brief for appellee.

June 19, 1995

STAHL, Circuit Judge. Plaintiffs-appellants appeal
STAHL, Circuit Judge.

from the district court's grant of summary judgment to

defendant-appellee in this admiralty case. We affirm.

I.
I.

BACKGROUND
BACKGROUND

On June 3, 1984, the Tall Ship S/V MARQUES, a

participant in the Cutty Sark International 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. Plaintiffs' decedents, James F. McAleer and

Thomas A. Lebel, were on board under the auspices of a

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 brought claims against defendant for

unseaworthiness under the general maritime law; for

negligence under the Jones Act, 46 U.S.C. 688; for

negligence under the general maritime law; and for wrongful

death under the Death on the High Seas Act, 46 U.S.C. 761-

768 ("DOHSA"). The district court granted summary judgment

to defendant, holding that defendant could not be liable for

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unseaworthiness because Finlay was not an owner of the

MARQUES, McAleer v. Smith, 818 F. Supp. 486, 494 (D.R.I.

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

not employ plaintiffs' decedents, id. at 493-94; for

negligence under the general maritime law, because such

claims cannot be brought by seamen against masters, id. at

496; or under DOHSA, because DOHSA is a derivative cause of

action requiring the existence of another claim not existent

here, id. at 496-97. From 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 is appropriate when "the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there

1. The district court granted defendant's motion for summary
judgment on April 8, 1993. The district court nonetheless
held a trial to determine damages because it had entered
default judgments against the co-owners of the MARQUES, see

McAleer v. Smith, 860 F. Supp. 924, 930 n.10 (D.R.I. 1994).

On October 18, 1994, the district 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.

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is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter 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 or its

appurtenant appliances and equipment." Seas Shipping Co. v.

Sieracki, 328 U.S. 85, 90 (1946) (citing The Osceola, 189

U.S. 158 (1903)). Unseaworthiness "is essentially a species

of liability without fault . . . . It is a form of absolute

duty." Id. at 94-95; see also Grant Gilmore & Charles L.

Black, Jr., The Law of Admiralty 6-41, at 393 (2d ed.

1975). Shipowners may not delegate their duty to provide a

seaworthy ship. 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 MARQUES. Plaintiffs argue, however, that

Finlay is nonetheless liable for unseaworthiness because he

was an owner pro hac vice.

2. For the purposes of this summary judgment motion, we
assume arguendo, as Judge Selya did for other MARQUES sail

trainees in Heath v. American Sail Training Ass'n, 644 F.

Supp. 1459, 1468 (D.R.I. 1986) (Selya, J.), that plaintiffs'
decedents were seamen despite the fact that they were unpaid
(indeed, themselves paying for the privilege of being on
board as trainees).

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An "owner pro hac vice" of a vessel is "one who

`stands in the place of the owner for the voyage or service

contemplated and bears the owner's responsibilities, even

though the latter remains the legal owner of the 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 U.S. 919 (1991). In effect, for liability

purposes, an owner pro hac vice is treated as a shipowner.

See Reed v. The Yaka, 373 U.S. 410, 412-13 (1963); see

generally Gilmore & Black, The Law of Admiralty 4-23, at

242. Thus, an owner pro hac vice may be liable for the

unseaworthiness of a vessel. See Reed, 373 U.S. at 412-13.

In general, if there is an owner pro hac vice, the title

owner will be absolved of personal liability (except for

defective conditions that existed before the owner pro hac

vice took control of the vessel). See Ramos 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 have recognized only two types of

owners pro hac vice: demise, or bareboat, charterers and

captains of fishing vessels operated under agreements, called

"lays." A demise charterer is "one who contracts for the

vessel itself and assumes exclusive possession, control,

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command and navigation thereof for a specified period,"

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

Cir. 1979), in contrast to a time or voyage charterer who

"contracts not for the vessel itself but for a specific

service of the vessel, such as carriage of goods, which is

rendered by the owner's master and crew," id. Demise

charters are created when "the owner of the vessel . . .

completely and exclusively relinquish[es] possession,

command, and navigation thereof to the demisee. [They are]

therefore tantamount to, though just short of, an outright

transfer of ownership. However, anything short of such a

complete transfer is a time or voyage charter party or not a

charter party at all." Guzman v. Pichirilo, 369 U.S. 698,

699-700 (1962) (internal quotation and citations omitted);

see generally Gilmore & 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; see also Rodriguez v. McAllister Bros.,

Inc., 736 F.2d 813, 815 (1st Cir. 1984). 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 not make him the owner pro hac vice.'"

Stephenson, 598 F.2d at 681 (quoting Fitzgerald v. A.L.

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

in Stephenson).

Captains of vessels operated under fishing lays,

which are agreements under which the participating fishermen

share the catch, may also be liable as owners pro hac vice.

See Cromwell v. Slaney, 65 F.2d 940, 941 (1st Cir. 1933).

Such situations are similar to demise charters, for a

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 will fish,

how long, and in disposing of the catch and settling all the

bills." Id.

Plaintiffs cite no case, and we have found none,

outside the context of a fishing lay that accords a master

status as an owner pro hac vice. In fact, many of our cases

find an owner liable precisely because the owner (rather

than, say, the time charterer) provided the master and crew.

See Stephenson, 598 F.2d at 680. As a general rule, we think

that masters are not owners pro hac vice because a master,

despite having control over the vessel, exercises that

control on behalf of the owner. Cf. 46 U.S.C. 10101(1)

(defining "master" as "the individual having command of a

vessel"); 46 U.S.C. 10101(2) (defining "owner" as "the

person to whom the vessel belongs").

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Plaintiffs argue, however, that even if masters are

not generally considered to be owners pro hac vice, Captain

Finlay had responsibilities for and interests in the MARQUES

beyond those of an ordinary master that render him liable as

an owner pro hac vice. In particular, plaintiffs point out

that Finlay had full operational control of the MARQUES,

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

that Finlay drew the ship's regulations for both mates and

crew members, and that everyone on board was required to

"read" his orders; that Finlay's contract with the MARQUES's

owners designated him as "self-employed"; that Finlay was

engaged in promoting the business of the MARQUES, such as

charters and cruises, for which he was paid a commission in

addition to his monthly base pay;3 that Finlay was required

to solicit contributions towards expenses and was obligated

whenever possible to negotiate directly with suppliers to

obtain free or discounted supplies in exchange for publicity

or other recompense arrangements; that Finlay was a founding

member and chief instructor of the Antiguan Maritime School

and expected to use the MARQUES as a training ship to train

young Antiguans in seamanship; and that the "Ship's

Regulations" provided that one person, the captain, was

3. Although he received 1000 British pounds sterling per
month while the MARQUES was at sea and 500 pounds per month
while ashore, plaintiffs also argue that Finlay was not a
salaried employee.

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solely responsible for the safety of the ship and those on

board. Plaintiffs also point out that their decedents had no

contact with the MARQUES's actual owners, but only with ASTA

and Finlay, and make much of the fact that Finlay had the

right to direct and control plaintiffs' 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 convert Finlay into

an owner pro hac vice. In determining that Finlay was not an

owner pro hac vice, we are mindful not only of the law of

agency, but also of the fact that time charterers, who may

exercise large amounts of control over the vessels they

charter, are not subject to liability for unseaworthiness,

see Stephenson, 598 F.2d at 679. While we take plaintiffs'

arguments in turn, even considered cumulatively we do not

think they support Finlay being considered an owner pro hac

vice.

While Finlay did exercise operational control over

the MARQUES, that control is inherent in being a master; it

does not convert Finlay into an owner pro hac vice.

Similarly, drawing up the ship's regulations and giving

orders are part and parcel of a master's duties; such

activities do not accord Finlay status as an owner pro hac

vice. That Finlay was designated as "self-employed" also

does not make him an owner pro hac vice. Despite being

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"self-employed," Finlay still functioned as an agent of the

owners; he did not assume control of the MARQUES in his own

right and, accordingly, cannot be said to have stood in the

place of the owner.

We also do not think that the fact that Finlay was

to receive a commission for business he brought to the

MARQUES makes him an owner pro hac vice, any more than a

salesman paid a commission for his sales or a businessman

paid a bonus for business brought in or money saved would

become an owner of the business. Similarly, that Finlay was

required to negotiate with suppliers does not make him an

owner pro hac vice; rather, it was just one of the duties

imposed on him by the MARQUES's actual owners. There is no

evidence that Finlay was to share in any savings generated by

these negotiations. Indeed, the owners were responsible for

all expenses associated with the MARQUES, including those

incurred by captains for generating business or negotiating

for supplies.

Nor do we think that Finlay's role in the Antiguan

Maritime School converts him into an owner pro hac vice.

While at some point in the future this may have brought some

business to the MARQUES, thus being mutually beneficial for

both Finlay and the owners of the MARQUES, there is no

evidence that Finlay had actually brought such business to

the MARQUES or that arrangements for such a venture had

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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 regarding the school; the implication,

therefore, is 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 duty to provide a

seaworthy ship is nondelegable. See Sieracki, 328 U.S. at 94

n.11. 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 liability for unseaworthiness.

See Ramos, 423 F.2d at 917-18 (holding that owner could not

be "liable for unseaworthy conditions arising after he has

parted with control over his vessel under a demise charter"

and that "a shipowner cannot escape liability by delegating

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

That plaintiffs' decedents had no contact with the

MARQUES's owners, but only with ASTA and Finlay, does not

convert Finlay into an owner pro hac vice. Finlay played no

part in hiring plaintiffs' decedents or in arranging with

ASTA to have paying sail trainees on board. Finlay was not

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to share in the profits from the owners' arrangement with

ASTA, nor in any profits from the vessel's participation in

the tall ships race. That Finlay had authority over

plaintiffs' decedents is not indicative of status as an owner

pro hac vice, for any master would necessarily have such

authority over his crew.

To the extent that plaintiffs argue that Finlay was

a partner or co-venturer with the MARQUES's owners, the

undisputed facts make clear, as the district court noted,

that 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 operational

control necessarily assumed by a captain. 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 in the MARQUES, summary judgment was

properly granted to defendant on plaintiffs' unseaworthiness

claims.

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 recover under the general

maritime law for the negligence of the master or crew. See

generally Gilmore & Black, The Law of Admiralty 6-20, at

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325-28. The Jones Act4 provides a remedy to a "seaman"

injured (or killed) "in the course of his employment." 46

U.S.C. 688. The Jones Act remedy is available only against

the seaman's employer. Cosmopolitan Shipping Co. v.

McAllister, 337 U.S. 783, 787 n.6 (1949). Accordingly,

plaintiffs can recover against defendant under the Jones Act

only if Finlay was plaintiffs' decedents' employer.

Plaintiffs contend that if their decedents "were

employees of anyone," they were employees of Captain Finlay.

We do not agree. Although Finlay exercised authority over

plaintiffs' decedents, he did so only as an agent of the

4. The Jones Act provides:

Any seaman who shall suffer personal
injury in the course of his employment
may, at his election, maintain an action
for damages at law, with the right of
trial by jury, and in such action all
statutes of the United States modifying
or extending the common-law right or
remedy in cases of personal injury to
railway employees shall apply; and in
case of the death of any seaman as a
result of any such personal injury the
personal representative of such seaman
may maintain an action for damages at law
with the right of trial by jury, and in
such action all statutes of the United
States conferring or regulating the right
of action for death in the case of
railway employees shall be applicable.
Jurisdiction in such actions shall be
under the court of the district in which
the defendant employer resides or in
which his principal office is located.

46 U.S.C. 688.

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owners, and not on his own behalf. Cf. Matute, 931 F.2d at

236 (Holding that a time charterer was not a seaman's

employer when "[t]he owner . . . , through the ship's

captain, hired Matute [the seaman] and eventually terminated

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

for paying him. The captain supervised Matute in his

position as oiler.") (emphasis added). Finlay had nothing to

do with arranging with ASTA for the sail trainees to be on

board the MARQUES; accordingly, he cannot be said to have

"hired" them in any sense. Nor was Finlay to receive any

benefit from having the sail trainees on board; rather,

monies paid by the sail trainees went to the owners of the

MARQUES, with a small amount reserved by ASTA to cover its

expenses.

In arguing that Finlay should be held to be

plaintiffs' decedents' employer, plaintiffs 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 he was an owner pro hac

vice. Accordingly, the district court properly granted

summary judgment to defendant on plaintiffs' Jones Act

claims.

D. Negligence Under General Maritime Law

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Plaintiffs argue that they are entitled to recover

from defendant for negligence under the general maritime law

on two separate theories. First, plaintiffs argue that they

have such a cause of action if their decedents, as sail

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

to be passengers rather than seamen. Second, plaintiffs

argue that if their decedents were seamen, they nevertheless

may maintain a cause of action for negligence against the

master under the general maritime law. We consider these

arguments in turn.

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1. Recovery as Passengers

Plaintiffs now urge that because their decedents

paid to crew on the MARQUES, they may be considered

passengers rather than seamen and so have a cause of action

against the master for negligence under the general maritime

law. Defendant argues, however, that plaintiffs never made

this argument to the district court, 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 asked at oral argument whether plaintiffs had

raised this argument in the district court, plaintiffs'

counsel referred the court to a portion of plaintiffs'

memorandum of law opposing defendant's motion for summary

judgment. In turning to plaintiffs' memorandum, the most

applicable statement we could find reads, "A general maritime

claim for negligence exists no matter what the status of

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

vice." We do not view this statement as preserving a claim

stemming from plaintiffs' decedents' possible status as

passengers. In fact, in another portion of their memorandum,

plaintiffs cited Judge Selya's opinion in Heath v. American

Sail Training Ass'n, 644 F. Supp. 1459, 1463 (D.R.I. 1986)

(Selya, J.) (dealing with claims by other sail trainees

killed in same accident), for the proposition: "It is

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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 decedents are

considered to have been seamen,5 they nonetheless may

maintain 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 an action in admiralty.

See, e.g., Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 413-14

(1953) (business invitees may bring a cause of action for

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

Halecki, 358 U.S. 613, 632 (1959) ("the owner of a ship in

navigable waters owes to all who are on board for purposes

not inimical to his legitimate interests the duty of

exercising reasonable care"). Seamen, however, were

5. Defendant does not contest the seaman status of
plaintiffs' decedents for purposes of the summary judgment
motion.

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traditionally barred from exercising this remedy with respect

to injuries caused by "the negligence of the master, or any

member of the crew." The Osceola, 189 U.S. at 175; see also

Gilmore & Black, The Law of Admiralty 6-21, at 328.

Congress, 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, if plaintiff is a seaman, he can recover under the

Jones Act; if he is not a seaman, he can recover under the

general maritime law." Gilmore & Black, The Law of Admiralty

6-21, at 328-29. Thus, it appears that the general

maritime law affords seamen no right to recover for injuries

caused by a negligent master or crew member, but that they

may recover for such injuries from their employer under the

Jones Act.

Plaintiffs make several arguments in an attempt to

get around the rule that seamen have no general maritime

cause of action for injuries caused by the negligence of the

master or crew. First, plaintiffs cite Cerqueira v.

Cerqueira, 828 F.2d 863 (1st Cir. 1987); Stoot 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. 475 (N.D. Cal. 1987), which they

construe to grant seamen a cause of action for negligence

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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 sue his brother, the legal title owner of the boat,

for simple negligence, positing that jurisdiction seemed

proper on the basis of the court's general maritime

jurisdiction. Cerqueira, 828 F.2d at 866. We did not,

however, consider the plaintiff to be a "seaman," nor do we

think a shipowner would generally be accorded seaman status.

Thus, while 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

a seaman injured during an altercation with the vessel's

cook, who was employed by the defendant, an independent

contractor providing catering 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

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of her employment. Id. at 1199. Based on this, plaintiffs

argue that seamen may assert a cause of action for negligence

under the general maritime law against independent

contractors. Plaintiffs further argue that because Finlay's

contract 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 to have been a third party of the

type envisioned by Stoot. Although his contract did

designate him as "self-employed," Finlay did not function as

an independent contractor, but rather as an employee and

agent of the owners of the MARQUES. Even if Finlay was an

independent contractor, however, we would hesitate to extend

Stoot to negligence actions under the general maritime law by

seamen against their independent-contractor masters,

especially in light of the Supreme Court's holding that

seamen cannot recover for the negligence of the master or

crew under the general maritime law, see The Osceola, 189

U.S. at 175.

Mahramas involved a hairdresser working aboard a

cruise ship who was employed by the owner of the on-board

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

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ladder in her cabin allegedly gave way. Mahramas, 475 F.2d

at 167. We fail to see how this case provides a claim under

the general maritime law against the master for negligence.

To the extent that plaintiff argues that Mahramas granted the

plaintiff a general maritime cause of action for negligence

against her independent-contractor employer (and therefore,

by extension, that plaintiffs should have a general maritime

cause of action for negligence against Finlay, since he was

"self-employed"), we think that contention is belied by the

case; the court did not consider the plaintiff's employer's

liability for negligence under the general maritime law, but

only under the Jones Act. See id. at 172.

Favaloro involved claims brought by the estates of

fishermen killed when the defendant tanker collided with and

sank their fishing boat. To the extent that it recognizes a

cause of action for negligence under the general maritime

law, Favaloro does not support the inference that such claims

may be brought by a seaman against the master of his own

vessel, for it deals only with claims against a colliding

vessel and the crew. See Favaloro, 687 F. Supp. at 477.

Thus, all of the cases relied upon by plaintiffs are

distinguishable from the instant case.

As a second basis for finding that seamen may

maintain an action against their masters for negligence under

the general maritime law, plaintiffs rely on the "Seamen's

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Act of 1915," which provided: "In any suit to recover

damages for any injury sustained on board vessel or in its

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

servants with those under their authority." See 46 U.S.C.A.

688 (1975) historical note. Plaintiffs argue that this

abolishes the fellow-servant rule, which the Supreme Court

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

we think the law may be considered as
settled upon the following propositions:

. . . .
3. That all the members of the
crew, except, perhaps, the master, are,

as between themselves, fellow servants,
and hence seamen cannot recover for
injuries sustained through the negligence
of another member of the crew beyond the
expense of their maintenance and cure.

(Emphasis added.) Plaintiffs conclude that because Congress

abolished the fellow-servant rule, seamen may recover from

their master for negligence under the general maritime law.

We do not agree.

The Osceola barred seamen from suing their master

or fellow crew members not because of the fellow-servant

rule, but rather because the general maritime law did not

provide seamen with a cause of action for such negligence:

we think the law may be considered as
settled upon the following propositions:

. . . .
4. That the seaman is not allowed
to recover an indemnity for the

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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 the Seamen's Act of 1915 as

"irrelevant" and holding that shipowners may not be held

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

Law of Admiralty 6-20, at 325-26 (describing Congress's

abolition of the fellow-servant rule as an ill-fated attempt

to abrogate The Osceola). We do not think the Seamen's Act

of 1915, now itself abrogated by the Jones Act, provided

seamen with a cause of action against a master for negligence

under the general maritime law. We note that Kennedy v. Gulf

Crews, Inc., 750 F. Supp. 214, 215-16 (W.D. La. 1990), the

only other case that we know of to consider whether a master

may be liable to a seaman for negligence under the general

maritime law, rejected a similar argument by the plaintiff

and held that a seaman does not have a cause of action

against his master for negligence. Cf. California Home

Brands, Inc. v. Ferreira, 871 F.2d 830, 834-35 (9th Cir.

1989) (holding that the Jones Act did not operate to make

negligent crew members liable to their employers for damages

paid to other seamen under the Jones Act because crew members

cannot sue each other for negligence).

We hold that the general maritime law does not

afford seamen a cause of action for negligence against

masters. Accordingly, summary judgment was properly granted

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to defendant on plaintiffs' counts for negligence under the

general maritime law.

E. DOHSA

Plaintiffs argue that they are entitled to recover

against defendant under DOHSA, which provides:

Whenever the death of a person shall be
caused by wrongful act, neglect, or
default occurring on the high seas . . .
the personal representative of the
decedent may maintain a suit for damages
. . . for the exclusive benefit of the
decedent's wife, 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." See McAleer, 818 F. Supp. at 496. We

agree. Plaintiffs assert no theory of recovery 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 maritime law for

negligence. Accordingly, there is no basis under which

Finlay or his estate "would have been liable" to plaintiffs'

decedents if they were still living. Thus, summary judgment

was properly granted to defendant for plaintiffs' claims

under DOHSA.

III.
III.

CONCLUSION
CONCLUSION

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In conclusion, summary judgment was properly

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

hac vice of the MARQUES and so was not liable for

unseaworthiness; (2) Finlay was not the employer of

plaintiffs' decedents and so was not liable under the Jones

Act; (3) plaintiffs did not argue below that they were not

seamen and therefore were entitled to sue a 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) plaintiffs may not recover

under DOHSA because they assert no theory of recovery under

which Finlay or his estate would have been liable to

plaintiffs' decedents if they were still living. In light of

our holding, we need not consider plaintiffs' request for us

to transfer the case to the District of Massachusetts.

Affirmed.
Affirmed.

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