In re All Maine Asbestos Litigation

• Decision Date: 29 December 1986
• Citation: 651 F. Supp. 913
• Parties: In re ALL MAINE ASBESTOS LITIGATION. (BIW CASES)
• Court: U.S. District Court — District of Maine

651 F. Supp. 913

In re ALL MAINE ASBESTOS LITIGATION. (BIW CASES)

United States District Court, D. Maine.

December 29, 1986.

Peter J. Rubin, Bernstein, Shur, Sawyer & Nelson, Portland, Me., for Wellington defendants.

Mark G. Furey, Portland, Me., for Raymark Industries, Inc.

Joseph Cox, Jr., Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C., for third party defendant U.S.A.

MEMORANDUM OF OPINION AND ORDER ON THE GOVERNMENT'S MOTION TO RECONSIDER AND FOR ENTRY OF FINAL JUDGMENT

GIGNOUX, Senior District Judge.

Third-party defendant United States of America has moved for reconsideration of this Court's Memorandum of Opinion and Order dated February 23, 1984, denying the United States' motion to dismiss or for summary judgment on Count VI of Model Third-Party Complaint A. Defendant asbestos manufacturers have filed this complaint in all asbestos-related cases brought in this Court by present and former employees, and the representatives of deceased employees, of Bath Iron Works (BIW), a private shipyard located in Bath, Maine. See In re All Maine Asbestos Litigation, 581 F.Supp. 963 (D.Me.1984). In support of its motion, the United States relies on the recent decision of the United States Court of Appeals for the First Circuit in Drake v. Raymark Industries, Inc., 772 F.2d 1007 (1st Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1994, 90 L.Ed.2d 675 (1986). See also In re All Maine Asbestos Litigation (PNS Cases), 772 F.2d 1023 (1st Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1994, 90 L.Ed.2d 675 (1986). As Count VI is the only remaining claim for relief in Model Third-Party Complaint A, if, upon reconsideration, the Court dismisses Count VI, the United States seeks entry of final judgment dismissing the third-party complaint in each action.

The factual and legal circumstances surrounding the filing of Model Third-Party Complaint A are fully set forth in this Court's previous decision, and thus need not be repeated here. It is sufficient to say that plaintiffs have sued various manufacturers and suppliers of asbestos-containing products seeking to recover damages for injuries allegedly sustained as a result of exposure to asbestos dust during the course of their (or their decedents') employment at BIW while performing construction or repair work on U.S. naval vessels. The complaints assert causes of action based on negligence, strict liability, and breach of express and implied warranties. Jurisdiction is predicated upon diversity of citizenship. See 28 U.S.C. § 1332(a) (1982); Austin v. Unarco Industries, Inc., 705 F.2d 1, 3 (1st Cir.), cert. dismissed, 463 U.S. 1247, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983). Certain of these defendants have filed Model Third-Party Complaint A in each of the actions seeking contribution and/or noncontractual indemnification against the United States.

Model Third-Party Complaint A asserted nine claims for relief against the United States. In its All Maine decision, this Court granted the United States' motion to dismiss or for summary judgment with respect to Counts I-V and Counts VII-IX. See 581 F.Supp. at 969-74, 977-80. With respect to Count VI, insofar as that count sought contribution and/or indemnification from the United States in its capacity as vessel owner, the Court found that there were disputed issues of material fact which rendered summary judgment inappropriate. See id. at 975-77. This finding was based on the Court's conclusions (1) that plaintiffs in these actions were protected by the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901-950 (1982), and had a right of action under section 5(b) of that Act, 33 U.S.C. § 905(b), to recover damages from the United States in its capacity as a vessel owner for injury caused by its negligence; and (2) a defendant can bring a third-party action against the United States as vessel owner for indemnification and contribution based upon the United States' breach of duties owed to the plaintiffs. See id. In Drake, the First Circuit dismissed the defendant asbestos manufacturer's vessel owner action against BIW, holding that section 5(b) of the LHWCA is limited to maritime torts and that admiralty law does not apply to asbestos injuries sustained by shipyard workers. See 772 F.2d at 1011-19. The United States here contends that Drake mandates dismissal of the analogous vessel owner count (Count VI) asserted against the United States in Model Third-Party Complaint A. Defendants argue that Drake is distinguishable. Alternatively, defendants assert liability of the United States for violation of duties of care owed plaintiffs under Maine law.¹ The United States responds that any such claim would be barred by the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(a) (1982).

The parties have comprehensively briefed and argued the issues thus presented, and pursuant to the Court's request they have submitted voluminous supplementary materials addressing the applicability of the discretionary function exception to the FTCA. Counsel have agreed that these materials constitute the relevant record.

The Court will first consider defendants' contention that, despite Drake, the United States may be liable for contribution or indemnity as the owner of naval vessels at BIW under section 5(b) of the LHWCA. The Court will then address defendants' argument that the United States may be liable for contribution or indemnity under various provisions of Maine tort law.

I. LHWCA § 905(b) Vessel Owner Theory of Liability

In dismissing the defendant asbestos manufacturer's vessel owner action against BIW in Drake, the First Circuit concluded that only maritime torts are cognizable under section 5(b) of the LHWCA. See 772 F.2d at 1013-14. Because the defendant manufacturer's third-party action against BIW was predicated solely on BIW's alleged breach of duty as vessel owner pro hac vice to employee Drake, the Court stated that "the proper question was whether plaintiff Drake could have maintained a § 905(b) action against BIW for his injuries." Id. at 1014. Accordingly, the Court looked to whether Drake's injury "would be cognizable in admiralty, or have admiralty law applied to it." Id. Applying the two-prong test of Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), as well as its previous decision in Austin v. Unarco Industries, Inc., 705 F.2d at 8-14, and the decisions of five other circuit courts, the First Circuit held that while the situs test was satisfied because the alleged wrong occurred on navigable waters, the nexus test was not, because the wrong did not bear a significant relationship to traditional maritime activity. See 772 F.2d at 1014-19. Noting that the "universal conclusion is that admiralty law does not apply to these torts," id. at 1016, the First Circuit therefore concluded that "neither plaintiff nor defendants can bring a § 905(b) negligence action against BIW qua shipowner pro hac vice." Id.² In All Maine, decided shortly after Drake, the First Circuit reaffirmed its decision in Drake, and held that the defendant manufacturers' section 905(b) third-party vessel owner claim against the United States in Model Third-Party Complaint B, involving asbestos claims arising out of work at the Portsmouth Naval Shipyard, must be dismissed for failure to state a claim on which relief can be granted, because section 905(b) "countenances only maritime torts." 772 F.2d at 1029.

In the present cases, defendants acknowledge the holding of Drake and All Maine that liability under section 5(b) of the LHWCA is limited to maritime torts. They contend that the vessel owner claims against the United States at Bath differ from the parallel claims against BIW at issue in Drake and the claims against the United States at PNS considered in All Maine. They suggest that the former claims are maritime. The Court must disagree.

In the instant cases, there is no dispute that plaintiffs' injuries occurred, at least in part, on United States naval vessels in the Kennebec River, a navigable waterway, and thus satisfied the situs requirement of Executive Jet. See Drake, 772 F.2d at 1015. But plaintiffs' injuries do not satisfy Executive Jet's nexus requirement. On this issue, the vessel owner claims asserted in these cases are virtually indistinguishable from the claims found not to be maritime in Drake and All Maine.

In Drake and All Maine, the First Circuit adopted the four-part nexus test established in Harville v. Johns-Manville Products Corp., 731 F.2d 775 (11th Cir.1984). Under the Harville approach, in determining whether an injury bears a significant relationship to maritime activities, the criteria to be considered are the functions and roles of the parties, the type of vehicles and instrumentalities involved, the causation and type of injury, and traditional concepts of the role of admiralty law. See id. at 783-84. The injuries here are in all pertinent respects the same as the injuries in Drake and All Maine that the First Circuit found to lack a sufficient relationship to traditional maritime activity to support the application of maritime law. See Drake, 772 F.2d at 1016; All Maine, 772 F.2d at 1029-30, 1031-32.

Defendants seek to distinguish Drake and All Maine on the ground that in those cases the vessel owners—BIW and the United States—also owned the shipyards where the injuries occurred, whereas here the United States is a vessel owner but does not own the shipyard. Defendants assert that this difference is critical to the application of the fourth Harville factor, "traditional concepts of the role of admiralty law." Where a vessel owner is also a shipyard owner, the argument continues, that vessel owner will likely choose to have its vessel repaired in its own shipyard; that choice is unlikely to be influenced by the consideration that different States in which different shipyards are located might...