
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  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                                         -2-                                          2            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.                                         -3-                                          3            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).                                            -4-                                          4                      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,                                         -5-                                          5            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.            __________                                __________     ____                                         -6-                                          6            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").                                         -7-                                          7                      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.                                         -8-                                          8            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                                          ___  ___ ____                                         -9-                                          9            "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                                         -10-                                          10            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                                         -11-                                          11            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            _________                   _____________________                                         -12-                                          12            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.                                         -13-                                          13            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            _________________________________________                                         -14-                                          14                      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.                                         -15-                                          15                      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                                         -16-                                          16            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.                                         -17-                                          17            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                                         -18-                                          18            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                                         -19-                                          19            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                                         -20-                                          20            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                                         -21-                                          21            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                                         -22-                                          22                      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                                         -23-                                          23            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                                      __________                                         -24-                                          24                      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.                      _________                                         -25-                                          25
