Miller v. American President Lines, Ltd.

• Decision Date: 10 May 1993
• Docket Number: Nos. 91-3602,91-3837,s. 91-3602
• Citation: 989 F.2d 1450
• Parties: , 61 USLW 2590, Prod.Liab.Rep. (CCH) P 13,649 Creighton E. MILLER, Administrator of the Estate of Maurice J. Moline, Plaintiff-Appellee, v. AMERICAN PRESIDENT LINES, LTD., on its own behalf and as successor in interest to American Mail Lines; Matson Navigation Company, Inc., on its own behalf and as successor in interest to the Oceanic Steamship Company; Pacific Atlantic Steamship Company; Isbrandtsen Lines; West Coast Shipping Company, Defendants-Appellants, Foster Wheeler Corporation; General Electric Company; T & N, PLC; Westinghouse Electric Corporation; Owens-Corning Fiberglas Corporation; Keene Corporation; Owens-Illinois, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1450

989 F.2d 1450

1993 A.M.C. 1217, 61 USLW 2590,

Prod.Liab.Rep. (CCH) P 13,649

Creighton E. MILLER, Administrator of the Estate of Maurice J. Moline, Plaintiff-Appellee, v. AMERICAN PRESIDENT LINES, LTD., on its own behalf and as successor in interest to American Mail Lines; Matson Navigation Company, Inc., on its own behalf and as successor in interest to the Oceanic Steamship Company; Pacific Atlantic Steamship Company; Isbrandtsen Lines; West Coast Shipping Company, Defendants-Appellants Foster Wheeler Corporation; General Electric Company; T &amp N, PLC; Westinghouse Electric Corporation; Owens-Corning Fiberglas Corporation; Keene Corporation; Owens-Illinois Inc., Defendants-Appellees.

Nos. 91-3602, 91-3837.

United States Court of Appeals Sixth Circuit.

Argued June 11, 1992.

Decided March 23, 1993.

Rehearing and Rehearing En Banc Denied May 10, 1993.

Leonard C. Jaques (argued and briefed), Jaques Admiralty Law Firm, Detroit, MI, Robert Swickle, Pittsburgh, PA, for Creighton E. Miller.

Harold W. Henderson (argued and briefed), Richard C. Binzley, Russell W. Gray, Thomas A. Heffernan, Thompson, Hine & Flory, Cleveland, OH, Henry N. Ware, Jr. (argued), McGuire, Woods, Battle & Boothe, Richmond, VA, for American President Lines, Ltd.

David G. Davies (briefed), Ray, Robinson, Hanninen & Carle, Cleveland, OH, for amici curiae.

James W. Bartlett, III (argued and briefed), Wilson, Elser, Moskowitz, Edelman & Dicker, Baltimore, MD, Martin J. Fallon, Kevin O. Kadlec, William D. Bonezzi, Jacobson, Maynard, Tuschman & Kalur, Cleveland, OH, for Foster Wheeler Corp.

Arlene C. Erlebacher, John A. Heller (briefed), Sidley & Austin, Chicago, IL, Michael R. Gallagher (argued), Gallagher, Sharp, Fulton & Norman, Cleveland, OH, Alton L. Stephens, Jr., Timothy T. Brick, Gallagher, Sharp, Fulton & Norman, Cleveland, OH, for General Elec. Co.

Randall L. Solomon (briefed), Thomas H. Shunk, Wade A. Mitchell (argued), Elizabeth A. McNellie, Baker & Hostetler, Cleveland, OH, for T & N, PLC.

Donald A. Powell, Buckingham, Doolittle & Burroughs, Akron, OH, Scott S. Cairns (briefed), McGuire, Woods, Battle & Boothe, Richmond, VA, for Westinghouse Elec. Corp.

Michael D. Eagen, Cincinnati, OH, for Keene Corp.

Susan Healy Zitterman (briefed), Kitch, Saurbier, Drutchas, Wagner & Kenney, Detroit, MI, Robert A. Bunda, Theresa R. DeWitt, Bunda, Stutz & DeWitt, Toledo, OH, for Owens-Corning Fiberglas Corp.

John C. Stewart (briefed), Richard A. Papurt, Bunda, Stutz & DeWitt, Toledo, OH, for Owens-Illinois Inc.

Before: MERRITT, Chief Judge; MILBURN, Circuit Judge; and PECK, Senior Circuit Judge.

MERRITT, Chief Judge.

This is an asbestos case, an appeal from a judgment, following a jury verdict, holding defendant shipowners liable for the wrongful death of a seaman on theories of negligence and unseaworthiness, and from the dismissal of defendant shipowners' third party claims for indemnity and contribution from certain asbestos suppliers and manufacturers.

The case is one of twenty seaman's cases drawn from the Maritime Asbestos Docket to go to trial in the Northern District of Ohio on an accelerated schedule. The trial was divided into three phases: Phase I considered whether the plaintiff suffered an asbestos related disease and, if so, the amount of compensatory damages; Phase II dealt with liability and punitive damages; Phase III considered the shipowners' claims for indemnity and contribution against asbestos manufacturers and suppliers. The Phase I jury found that the plaintiff suffered from an asbestos related disease, and was due $166,000 in compensatory damages. The Phase II jury found the shipowners liable for the compensatory damages under negligence and unseaworthiness, and imposed punitive damages of $50,000 against each defendant for a total amount of punitive damages of $650,000. In Phase III, the District Court dismissed the shipowners' third party claims against the asbestos manufacturers and suppliers.

Defendant shipowners challenge the award of punitive damages; the denial of indemnification or contribution; the sufficiency of the evidence on the element of causation; the admission of testimony by certain of plaintiff's witnesses of whom the defendants had little notice; and the District Court's handling of a jury request for a written copy of the jury instructions. We conclude that punitive damages are not available in this case, and that the issue of indemnity and contribution should be analyzed in terms of comparative fault rather than under the active-passive negligence doctrine applied by the District Court. On all other issues we affirm the judgment of the District Court.

I. Facts

This action was originally brought by Maurice Moline, a retired seaman, based upon his exposure to asbestos and other toxic chemicals as a crew member on defendants' ships. He alleged negligence under the Jones Act, 46 U.S.C.App. § 688, and unseaworthiness under general maritime law. Upon his death in 1989, the action was assumed by his personal representative.

Moline was employed on defendants' ships from 1944-1951 and from 1953-1969. A number of witnesses testified that asbestos was used extensively on the ships on which Moline worked. It was used as insulation in the engine rooms, on ventilation ducts, and on steam pipes running through crews' quarters. The pounding of the ships on the ocean and the normal deterioration of this insulation created asbestos dust everywhere the insulation was used. Crew members asleep in their quarters would wake to find themselves coated with a thin layer of asbestos dust, and in times of bad weather the crew was forced to cover kitchen pots to keep them from being covered in asbestos dust. Asbestos was used in gaskets, as packing on ship valves, in fire brick mortar, in refrigeration units, in floor and ceiling tiles, as insulation cement, as spackling and joint cement, and in winches.

Moline performed a variety of jobs on board defendants' ships, including those of maintenance reefer, oiler, electrician and wiper. His jobs were all connected with the engine room and all involved work with asbestos. Asbestos was particularly common in the engine room where it was used on boilers to insulate and to prevent leaks. Asbestos blankets, boards and gloves were used to facilitate work on hot engine parts. Moline's work as an electrician required him to remove asbestos insulation to reach hidden wires and junction boxes. This was done with a hacksaw or other tool, and caused a good deal of asbestos dust. When replacing or repairing asbestos insulation, crew members would take asbestos powder from bags or cans, scooping it out by hand or with a coffee can, and mix the powder with water to make a bonding compound. As a wiper, Moline's job was to clean up after electricians and engine room workers.

Individual seamen and their union representatives made complaints about the high levels of asbestos dust, but remedial measures were minimal. They filed grievances about the presence of asbestos in the food and about seamen having to handle the substance. Complaints by union representatives about the prevalence of asbestos dust in the air sometimes resulted in efforts to clean out vents with shop vacuums, but more often were ignored. Whether defendants knew or should have known of the dangers of asbestos exposure at the time of these complaints is unclear.

The trial testimony did, however, make clear to the jury the dangers of extensive asbestos exposure. Expert testimony indicated that seamen faced risks of asbestos related disease comparable to insulation workers. Although all crew members were exposed to asbestos, the most dangerous area was the engine room. There was also medical testimony that exposure to asbestos can cause scarring of the lungs or lung lining. It is undisputed that Moline died of mesothelioma, an asbestos related disease which can arise from a relatively brief exposure to asbestos.

II. Availability of Punitive Damages

Defendant shipowners first challenge the award of punitive damages, arguing that punitive damages are not available as a matter of law in a wrongful death action brought under the Jones Act and general maritime law. Defendants rely primarily upon a recent Supreme Court case, Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct 317, 112 L.Ed.2d 275 (1990), which held that certain nonpecuniary damages are not available in a wrongful death action brought under the Jones Act and general maritime law. The specific issue in Miles was whether the unavailability under the Jones Act of damages for loss of society and lost future income precludes recovery of these damages under a general maritime law unseaworthiness claim. The Court found that it does.

The district court declined to apply Miles, holding that because the Supreme Court did not address the specific question of punitive damages, Miles was not controlling. The district court refused, therefore, to "dismantle the longstanding availability of punitive damages in general maritime tort claims based on unseaworthiness" by extending Miles. For many years prior to Miles, punitive damages had been recognized as an appropriate remedy under general maritime law. See The Amiable Nancy, 16 U.S. (3 Wheat.) 546, 4 L.Ed. 456 (1818); Protectus Alpha Navigation Co. v. North Pacific Grain Growers, 767 F.2d 1379, 1385 (9th Cir.1985); United States Steel Corp. v. Fuhrman, 407 F.2d 1143 (6th Cir.1969). The Fifth Circuit has specifically held that punitive damages are available in a general maritime law unseaworthiness action for the wrongful death of a seaman. In re Merry Shipping Inc., 650 F.2d 622, 626 (5th Cir. Unit B 1981).

The Miles decision is not, however, so easily dismissed because its reasoning, if not its holding, seems to cover the type of damages before us. Nonpecuniary damages also had a long history of acceptance in general maritime law before Miles held them unavailable in a seaman's wrongful death...