Bartel v. Alcoa S.S. Co.

Citation805 F.3d 169
Decision Date19 October 2015
Docket Number15–30032.,Nos. 15–30004,15–30005,s. 15–30004
PartiesWilliam E. BARTEL, as personal representative of the Estate of Silas B. Bishop, Plaintiff–Appellee v. ALCOA STEAMSHIP COMPANY, INC ORPORATED; Central Gulf Lines, Incorporated; Central Gulf Steamship Corporation; Crowley Marine Services, Incorporated, Successor by Merger Delta Steamship Lines, Incorporated, formerly known as Mississippi Shipping Company; Delta Steamship Lines, Incorporated; Empire Transport, Incorporated; Farrell Lines, Incorporated, formerly known as American South African Lines; James River Transport, Incorporated; Chas. Kurz & Company, individually and/or as Successor–in–Interest Keystone Shipping Company, Successor–in–Interest Keystone Tankship Corporation; Marine Navigation Company; Crowley Maritime Corporation, individually and/or as Successor–in–Interest Marine Transport Lines, Incorporated; Matson Navigation Company, Inc orporated; National Bulk Carriers, Incorporated; Ogden Leader Stransport, Incorporated; Pan Atlantic Steamship Company ; Sea–Land Service, Incorporated; Wabash Transport, Incorporated; Waterman Steamship Corporation; Marine Transport Lines, Incorporated; Keystone Shipping Company; Central Gulf Lines, Incorporated, individually and/or as Successor–in–Interest Central Gulf Steamship Corporation, Defendants–Appellants. William E. Bartel, As personal representative on behalf of Estate of Joseph L. Dennis, Plaintiff–Appellee v. American Export Isbrantsen; Farrell Lines, Incorporated, on its own behalf and, formerly known as American South African Lines, Successor–in–Interest American Export Lines, Incorporated formerly known as American Isbrandtsen Lines, Incorporated, incorrectly named American Export Isbrandsten; American Export Lines, Incorporated; American Trading & Production Corporation; American Trading Transportation Company ; Central Gulf Lines, Incorporated, Individually and/or Successor–in–Interest Central Gulf Steamship Corporation; Chas. Kurz; Company, Individually and/or Successor–in–Interest Keystone Shipping Company Successor–in–Interest Keystone Tankship Corporation; Farrell Lines, Incorporated; Trinidad Corporation, Defendants–Appellants. Lawrence Craig, Plaintiff–Appellee v. Rio Grande Transport, Incorporated; Sea–Land Service, Incorporated; Waterman Steamship Corporation, Defendants–Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Jody Edward Anderman, Cameron Ray Waddell, Litigation Counsel, Waddell Anderman, L.L.C., Baton Rouge, LA, John C. Cardello (argued), Jaques Admiralty Law Firm, P.C., Detroit, MI, Jeffery Russell Nicholson, Nicholson Law Firm, L.L.C., Baton Rouge, LA, for PlaintiffAppellee.

John A. Bolles, Robert J. Barbier, Meredith Wilson Blanque, Kevin Jacob LaVie, Esq. (argued), Phelps Dunbar, L.L.P., New Orleans, LA, for DefendantsAppellants.

Appeals from the United States District Court for the Middle District of Louisiana.

Before REAVLEY, ELROD, and HAYNES, Circuit Judges.

Opinion

REAVLEY, Circuit Judge:

This consolidated action involves claims arising from the plaintiffs' alleged exposure to asbestos aboard vessels operated or owned by the various defendants. We must determine whether the cases, originally filed in state court, properly belong in federal court.

Plaintiffs Silas B. Bishop, Joseph L. Dennis, and Lawrence R. Craig worked for decades as merchant mariners aboard many different vessels and for many different employers. With their respective lawsuits, each alleges that he was exposed to asbestos over the course of his service and suffered serious disease or death as a result.1 The plaintiffs sued their former employers in Louisiana state court under the Jones Act and general maritime law (unseaworthiness). They alleged that their injuries were attributable to the employers' failure to warn of the dangers of asbestos, to train their crews in using asbestos-containing products, and to adopt procedures for the safe installation and removal of asbestos. While all three plaintiffs served on various vessels during their careers, each of them served on at least one United States Naval Ship. United States Naval Ships are owned by the Navy but operated by civilian contractors. Here, Navy-owned vessels aboard which the plaintiffs worked were operated by defendants Mathiasen Tanker Industry, Incorporated, American President Lines Limited, and American Overseas Marine Corporation (the “Federal Officer Defendants).2

The defendants argue that removal was warranted under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). Under this statute, an action “against or directed to ... any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office” may be removed to federal court. 28 U.S.C. § 1442(a)(1). To qualify for removal, defendants must show that they are “persons” within the meaning of the statute, “that the defendants acted pursuant to a federal officer's directions and that a causal nexus exists between the defendants' actions under color of federal office and the plaintiff's claims.” Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398–400 (5th Cir.1998). Additionally, they must assert a ‘colorable federal defense.’ Id. at 400. The defendant bears the burden of making this showing, and we review the district court's determination de novo. Id. at 397.

It is undisputed that defendants, as corporate entities, qualify as “persons” within the meaning of the Federal Officer Removal Statute. See Winters, 149 F.3d at 398. For removal to be proper, it is necessary but not sufficient for a defendant to show it “acted pursuant to a federal officer's directions.” Winters, 149 F.3d at 398. The defendant must also show “that a causal nexus exists between the defendants' actions under color of federal office and the plaintiff's claims.” Id.

Here, defendants argue that the Federal Officer Defendants acted pursuant to a federal authority “when they contracted with the United States Navy to operate and crew Navy ships with civilians.” (Blue at 13.) And, they argue that this same fact also establishes a causal nexus exists between the plaintiff's injuries and the defendants' actions under color of office. To support these arguments, they provide a contract governing the relationship between the federal government and one Federal Officer Defendant, Mathiasen Tanker Industry, Incorporated. They also provide evidence that vessels operated by the remaining Federal Officer Defendants were Navy-owned.

The defendants' argument collapses the inquiry from two steps to one. That is, they believe the Navy's mere ownership and theoretical control of the vessels provides an adequate “causal nexus” between the Federal Officer Defendants' actions and the plaintiffs' claims. Inasmuch as the plaintiffs allege injuries arising from the intrinsic attributes of the ships, as delivered to the Federal Officer Defendants, defendants could have argued that mere operation of the ships supplies an adequate causal nexus. That is to say, if mere operation of intrinsically dangerous (unseaworthy) vessels caused injuries for which the Federal Officer Defendants may be liable, then that same mere operation may provide a causal nexus supporting removal. It is therefore important to understand the nature of the plaintiffs' allegations. As mentioned already, the plaintiffs' complaints are primarily concerned with failure to warn, failure to train, and failure to adopt procedures for the safe installation and removal of asbestos. These allegations are not concerned so much with vessel design as they are with vessel operation. At oral argument, however, the defendants argued the plaintiffs' allegations of unseaworthiness are broader and encompass the intrinsically unsafe nature of the vessels. We first address those claims concerned with the defendants' acts and omissions—the “failure to warn claims.” We then turn to the claims concerned with the intrinsic dangers posed by mere operation of the vessels—the “unseaworthiness claims.”

In adopting the magistrate judge's report and recommendation, the district court found that defendants failed to establish an adequate causal link because plaintiffs' claims were “analogous” to “failure to warn cases where the government owns a work space infected with asbestos and the civilian contractor operating the facility fails to warn of the danger or otherwise mitigate the risk. See Bartel v. Alcoa Steamship Co., 64 F.Supp.3d 843, 855 (M.D.La.2014) (collecting cases). In their briefing, the defendants directly attacked this reasoning, relying extensively on an unpublished 1998 magistrate judge's ruling, Lalonde v. Delta Field Erection. See Case No. CIV.A.96–3244–B–M3, 1998 WL 34301466, at *1 (M.D.La. Aug. 6, 1998). That case, however, is distinguishable and cuts squarely against the defendants.

Like this case, Lalonde involved allegations of failure to warn, supervise, and make safe. See id. at *1. There, however:

The federal government
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