Csr v. Taylor

• Decision Date: 16 November 2009
• Docket Number: No. 129, September Term, 2008.,129, September Term, 2008.
• Citation: 983 A.2d 492,411 Md. 457
• Parties: CSR, LIMITED v. Andrea TAYLOR, et al.
• Court: Court of Special Appeals of Maryland

983 A.2d 492

411 Md. 457

CSR, LIMITED v. Andrea TAYLOR, et al.

No. 129, September Term, 2008.

Court of Appeals of Maryland.

November 16, 2009.

F. Ford Loker (Laura A. Cellucci, Miles & Stockbridge, P.C., Baltimore), on brief, for Petitioner.

Edward J. Lilly (Steven W. Smith, Jennifer L. Lilly, Law Offices of Peter G. Angelos, Baltimore), on brief, for Respondents.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, JOHN C. ELDRIDGE (Retired, Specially Assigned) and IRMA S. RAKER (Retired, Specially Assigned), JJ.

GREENE, J.

This case requires us to determine whether the Circuit Court for Baltimore City would have been justified in exercising in personam jurisdiction over Petitioner, Colonial Sugar Refining Co., Ltd. ("CSR"), an Australian business entity, under the circumstances presented in this case. Andrea Taylor and Mary Fuchsluger (collectively, "Respondents") are the personal representatives of the estates of two former stevedores who worked at the Port of Baltimore ("Port") and who allegedly contracted mesothelioma from the offloading of raw asbestos and asbestos-containing products. Respondents attribute the stevedores' illnesses, in part, to CSR's use of the Port as a conduit in shipping raw asbestos fibers from Australia to United States consumers located outside of Maryland.

To properly assert jurisdiction over CSR, a foreign corporation, Petitioner's actions must satisfy the requirements set forth in Maryland's long-arm statute, Md.Code (1974, 2006 Repl. Vol.), § 6-103 of the Courts & Judicial Proceedings Article, and the exercise of jurisdiction must comply with the Due Process Clause of the Fourteenth Amendment. With respect to the Due Process Clause, which overall requires that Petitioner have maintained sufficient minimum contacts with the forum state, there must be "purposeful availment," meaning there exists so substantial a connection between Petitioner and the forum state that having to defend a lawsuit there would be foreseeable. In Maryland, a substantial connection will be established if Petitioner either engaged in significant activities in the State or created continuing obligations with the State's residents, thus taking advantage of the benefits and protections of Maryland law. In the instant case, however, Respondents have failed to demonstrate that CSR, in the course of any of its contacts with Maryland, satisfied the "purposeful availment" requirement. Thus, we shall hold that the Court of Special Appeals erred in concluding that the Circuit Court had jurisdiction over CSR.

I.

Respondents are the personal representatives of the estates of Alfred B. Smith and Joseph Anzulis. Smith and Anzulis worked as stevedores at the Port from approximately 1942 through 1983 and 1937 through 1973, respectively. Each man died from mesothelioma,¹ which Respondents contend was caused by exposure to asbestos while working at the Port.

In the Circuit Court for Baltimore City, Respondents sued numerous entities involved in the manufacture, supply, sale, distribution, and installation of asbestos-containing products, alleging multiple causes of action, including strict liability, breach of warranty, negligence, and fraud. Respondents' theory was that Smith and Anzulis became sick from the offloading of raw asbestos or asbestos-containing products from ships docked at the Port.

One of the entities Respondents sued was CSR, a corporation organized and existing under the laws of Australia. CSR's headquarters and principal place of business is in Chatsworth, New South Wales Australia, located approximately 10,000 miles and a 14-hour time difference from Maryland. Between approximately 1943 and 1966, CSR acted as the exclusive distributor for a wholly-owned subsidiary, Australian Blue Asbestos Pty. Limited ("ABA"), to sell asbestos mined in Wittenoom, Western Australia, to customers in the United States. Although CSR's customers were located outside of Maryland, some of the corporation's shipments passed through the Port, where they were offloaded by stevedores and forwarded via other conveyances to their final destinations.

In an affidavit submitted to the Circuit Court, Lloyd M. Gardner, Sr., a co-worker of Smith and Anzulis at the Port, stated that he unloaded thousands of burlap bags shipped from foreign ports and containing raw asbestos. Gardner recalled unloading shipments of Australian asbestos up to approximately six times per year in the 1950s and 60s. The bags comprising these shipments, Gardner noted, contained a diamond-shaped logo with the letters "CSR."

In addition, Lloyd Gardner testified at his deposition that the offloading of asbestos-containing bags at the Port produced a lot of dust. He also said, in his affidavit, "Handling the bags of CSR asbestos was very dusty, and at times the bags would be punctured or ripped which also created dust which I and the other workers in the area breathed." Gardner remembered Smith and Anzulis being present when the dust-producing work took place.

William Gardner, Lloyd Gardner's brother and a stevedore who worked at the Port from 1961 until 1970, also indicated in a deposition that he recalled unloading CSR-labeled burlap bags containing raw asbestos. William Gardner further stated that dust would be "all over the place," and that Smith and Anzulis were present during these unloading jobs.

Beyond supplying raw asbestos to American consumers, CSR was involved in the sugar industry. For decades, including the years when Smith and Anzulis worked at the Port, CSR had an agreement with the State of Queensland, Australia, to market all Australian exports of raw sugar. CSR's duties included making arrangements for sale, transport, insurance, and financing, and CSR performed those duties pursuant to the Sugar Acquisition Act of 1915, by which the Australian government directed all facets of sugar production and distribution. Baltimore served as a significant point of entry for imports of Australian sugar, as Maryland Port Authority statistics indicate that approximately 82,847 tons of raw sugar, then-valued at $10,921,373, were imported into the Port from Australia during the period from 1964 through 1966.

In response to Respondents' lawsuit, CSR filed a motion to dismiss for lack of personal jurisdiction. In an affidavit filed in support of the motion, Edwin Anthony Smith, manager of CSR's Group Financial Reporting, provided the following reasons for challenging the jurisdiction of a Maryland court: (1) CSR never conducted or solicited any business in Maryland; (2) CSR was never incorporated or licensed to do business in Maryland; (3) CSR never appointed an agent for the purpose of accepting service of process in Maryland; and (4) CSR never maintained an office, telephone listing, mailing address, or bank account in Maryland, nor did it own, lease, or possess an interest in property in the State. Pertaining to CSR's supply of asbestos specifically, Smith asserted that CSR never conducted an asbestos-related business in Maryland, nor had the company been a party to a contract in the State or been required to perform a contract in the State. Smith further stated that CSR had never manufactured produced, merchandised, marketed, supplied, distributed, sold, or installed asbestos products in Maryland. According to Smith, the purchaser of the raw asbestos was "basically responsible for it" when it left Australia, and where the shipment went "was dictated by the purchaser."²

In opposition to CSR's motion to dismiss, Respondents presented to the Circuit Court four invoices representing asbestos shipments by CSR to Baltimore during the period when Smith and Anzulis worked as stevedores.³ The cumulative weight of the shipments was over 1.2 million pounds, consisting of 13,332 individual bags of raw asbestos.⁴

Also in opposition to CSR's motion, Respondents submitted the affidavit of Captain Robert Stewart, a maritime expert. Captain Stewart observed that three of the four invoiced shipments were made pursuant to C.I.F. ("Cost, Insurance, and Freight") arrangements.⁵ Captain Stewart expressed the opinion that, pursuant to the three C.I.F. arrangements, CSR, as the "seller/shipper/consignor" of the raw asbestos, was obligated to do the following: (1) package and mark the goods, identifying the contents and destination; (2) prepare an invoice; (3) contract for marine insurance; (4) obtain the necessary shipping documents, such as export licenses; (5) pay all freight charges to the carrier, including costs associated with hiring a stevedore company to unload the cargo; (6) obtain a clean negotiable bill of lading covering the transportation to Baltimore; and (7) retain responsibility for the cargo until it arrived and was unloaded in Baltimore, at which time the buyer accepted the cargo. Stewart further indicated that, under a C.I.F. contract, CSR would have access to Maryland courts if the buyers wrongly failed to accept the goods upon delivery in Baltimore. Lastly, Respondents placed into evidence the affidavit of Dr. Barry Castleman, an environmental consultant with expertise concerning the history of the asbestos industry. Dr. Castleman noted that from 1943 to 1966, CSR would have known that the asbestos-containing burlap bags shipped from ABA's mine in Western Australia were handled and unloaded by stevedores at various ports and that the bags would break or tear in such a manner as to expose the stevedores to airborne asbestos. Dr. Castleman also expressed the opinion that CSR became aware of the health hazards associated with asbestos dust some time in the 1940s.

Dr. Castleman further stated that from approximately 1942 to 1966, CSR regularly advertised the sale of ABA asbestos products in Asbestos, a trade magazine of the United States asbestos industry published by a Pennsylvania company. Specifically, from 1954 until 1960, CSR placed advertisements in the publication every other month. Dr. Castleman expressed the opinion that...