USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Edward M. Pitts with whom Pitts & Pitts was on brief for
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appellants.
Holly S. Harvey with whom Thornton, Davis & Murray, P.A., was on
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brief for appellee.
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June 19, 1995
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STAHL, Circuit Judge. Plaintiffs-appellants appeal
STAHL, Circuit Judge.
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from the district court's grant of summary judgment to
defendant-appellee in this admiralty case. We affirm.
I.
I.
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BACKGROUND
BACKGROUND
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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.
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1993); for negligence under the Jones Act, because Finlay did
not employ plaintiffs' decedents, id. at 493-94; for
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negligence under the general maritime law, because such
claims cannot be brought by seamen against masters, id. at
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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
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followed.1
II.
II.
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DISCUSSION
DISCUSSION
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A. Standard of Review
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As always, we review a district court's grant of
summary judgment de novo and, like the district court, review
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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).
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Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
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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
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McAleer v. Smith, 860 F. Supp. 924, 930 n.10 (D.R.I. 1994).
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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
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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.
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Sieracki, 328 U.S. 85, 90 (1946) (citing The Osceola, 189
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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.
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Black, Jr., The Law of Admiralty 6-41, at 393 (2d ed.
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1975). Shipowners may not delegate their duty to provide a
seaworthy ship. Sieracki, 328 U.S. at 94 n.11.
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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.
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2. For the purposes of this summary judgment motion, we
assume arguendo, as Judge Selya did for other MARQUES sail
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trainees in Heath v. American Sail Training Ass'n, 644 F.
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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
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`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
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Cir.) (quoting Aird v. Weyerhaeuser S.S. Co., 169 F.2d 606,
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610 (3d Cir. 1948), cert. denied, 337 U.S. 959 (1949)), cert.
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denied, 502 U.S. 919 (1991). In effect, for liability
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purposes, an owner pro hac vice is treated as a shipowner.
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See Reed v. The Yaka, 373 U.S. 410, 412-13 (1963); see
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generally Gilmore & Black, The Law of Admiralty 4-23, at
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242. Thus, an owner pro hac vice may be liable for the
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unseaworthiness of a vessel. See Reed, 373 U.S. at 412-13.
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In general, if there is an owner pro hac vice, the title
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owner will be absolved of personal liability (except for
defective conditions that existed before the owner pro hac
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vice took control of the vessel). See Ramos v. Beauregard,
____ ___ _____ ___________
Inc., 423 F.2d 916, 917-18 (1st Cir.), cert. denied, 400 U.S.
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865 (1970); see generally Thomas J. Schoenbaum, Admiralty and
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Maritime Law 5-3, at 168 (1987).
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Admiralty cases have recognized only two types of
owners pro hac vice: demise, or bareboat, charterers and
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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
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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
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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,
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699-700 (1962) (internal quotation and citations omitted);
see generally Gilmore & Black, The Law of Admiralty 4-21,
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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,
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598 F.2d at 679; see also Rodriguez v. McAllister Bros.,
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Inc., 736 F.2d 813, 815 (1st Cir. 1984). The mere fact that
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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.'"
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Stephenson, 598 F.2d at 681 (quoting Fitzgerald v. A.L.
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6
Burbank & Co., 451 F.2d 670, 676 (2d Cir. 1971)) (alterations
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in Stephenson).
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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).
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Such situations are similar to demise charters, for a
fishing-lay captain will only be found to be an owner pro hac
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vice if "the captain employs the members of the crew and
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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.
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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
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find an owner liable precisely because the owner (rather
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than, say, the time charterer) provided the master and crew.
See Stephenson, 598 F.2d at 680. As a general rule, we think
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that masters are not owners pro hac vice because a master,
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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
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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
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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
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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
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owner pro hac vice, we are mindful not only of the law of
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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'
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arguments in turn, even considered cumulatively we do not
think they support Finlay being considered an owner pro hac
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vice.
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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.
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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
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vice. That Finlay was designated as "self-employed" also
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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
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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
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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
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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
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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
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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
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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
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hac vice or a partner in the MARQUES, summary judgment was
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properly granted to defendant on plaintiffs' unseaworthiness
claims.
C. The Jones Act
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Congress passed the Jones Act in 1920 to abrogate
the Supreme Court's holding in The Osceola, 189 U.S. 158, 175
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(1903), that seamen could not recover under the general
maritime law for the negligence of the master or crew. See
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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,
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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
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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
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236 (Holding that a time charterer was not a seaman's
employer when "[t]he owner . . . , through the ship's
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captain, hired Matute [the seaman] and eventually terminated
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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
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here because they do not indicate that Finlay was an employer
any more than they indicate that he was an owner pro hac
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vice. Accordingly, the district court properly granted
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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
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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
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vice." We do not view this statement as preserving a claim
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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
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Investment Assocs., Inc. v. American Title Ins. Co., 992 F.2d
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1231, 1240 n.12 (1st Cir. 1993).
2. Recovery as Seamen
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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
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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
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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
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Gilmore & Black, The Law of Admiralty 6-21, at 328.
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Congress, in response to the rule of The Osceola, passed the
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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
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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.
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Cerqueira, 828 F.2d 863 (1st Cir. 1987); Stoot v. D & D
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Catering Serv., Inc., 807 F.2d 1197 (5th Cir.), cert. denied,
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484 U.S. 821 (1987); Mahramas v. American Export Isbrandtsen
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Lines, Inc., 475 F.2d 165 (2d Cir. 1973); and Favaloro v. S/S
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Golden Gate, 687 F. Supp. 475 (N.D. Cal. 1987), which they
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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U.S. at 175.
Mahramas involved a hairdresser working aboard a
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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
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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
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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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