Shuman v. U.S., 84-1884

• Decision Date: 26 June 1985
• Docket Number: No. 84-1884,84-1884
• Citation: 765 F.2d 283
• Parties: Edythe SHUMAN, Plaintiff, Appellee, v. UNITED STATES of America, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 283

765 F.2d 283

Edythe SHUMAN, Plaintiff, Appellee, v. UNITED STATES of America, Defendant, Appellant.

No. 84-1884.

United States Court of Appeals, First Circuit.

Argued March 5, 1985.

Decided June 26, 1985.

David S. Fishback, Washington, D.C., with whom Peter A. Nowinski, Sp. Litigation Counsel, Gail Killefer, Richard K. Willard, Acting Asst. Attys. Gen., Washington, D.C., William F. Weld, U.S. Atty., Boston, Mass., Robert S. Greenspan and Marc Richman, Appellate Staff, Dept. of Justice, Washington, D.C., were on brief, for defendant, appellant.

Edward T. Dangel, III, Boston, Mass., with whom Dangel & Sherry, P.C., Boston, Mass., was on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

In this action, plaintiff Edythe Shuman, who is administrator of the estate of her husband, George Shuman, claims that the United States is liable in damages pursuant to the Federal Tort Claims Act for the asbestos-induced injuries that led to his death. At the conclusion of a bench trial, the district court held the United States liable for shipowner negligence under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Sec. 905(b), and ordered it to pay $145,013 as stipulated damages. Although the United States presses a number of issues on appeal, including claims of clearly erroneous findings of fact, it is necessary to discuss only one. We hold that this action is barred under the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(a), and, accordingly, reverse.

Factual Background

Although there are disputes as to some material facts, most do not bear on our disposition of the case. Thus, except where noted, we assume arguendo that the facts found by the district court are amply supported by the record.

Shuman worked as a third-class shipfitter for Bethlehem Steel Corporation (Bethlehem) at the Fore River Shipyard (Shipyard) in Quincy, Massachusetts, during part of 1942, and again from 1951-53. During his first period of employment for Bethlehem, he worked on new construction, such as fitting plates and bulkheads into the hulls of ships, making templates, and doing layout work. Following a three-year enlistment in the Navy and five years working for another company, Shuman returned to the Shipyard in 1951 for approximately three years. The district court did not make any findings regarding whether Shuman's duties differed any during this second employment period with Bethlehem. From 1953 until shortly before the discovery of his fatal illness in 1976, Shuman was employed as a sheet metal worker for a private company in the Boston area.

Although it was a contested issue of fact below, the district court determined that Shuman died as a result of mesothelioma, a malignancy of the pleural cavity lining positively correlated with inhalation of asbestos fibers, and not from a lung cancer possibly resulting from Shuman's heavy cigarette smoking. This finding is not appealed. Plaintiff contends, and the district court so found, that in 1942, "Shipyard workers, including Shuman, were regularly exposed to high levels of asbestos dust ...," that respirators were not worn, and that inadequate ventilation was provided to areas where asbestos products were utilized. The court also found that Shuman was never exposed to significant quantities of asbestos dust anywhere except at the Shipyard. The court further determined that approximately half of naval construction work occurred after the ships had been launched, and that "it was probable that Shuman worked on vessels which had been launched on navigable waters."

The district court also made a series of findings regarding the role of the United States, especially the Navy, which was the contracting agency with Bethelem for the production of ships during the period at issue. These findings were focused on the Navy's role in promulgating and enforcing safety and health standards at the Shipyard. A brief summary of the organizational structure of the government's office at Bethlehem's Fore River Shipyard is essential background to an understanding of the district court's findings and an analysis of the discretionary function exception in this context.

In 1942, in private shipyards which contracted with the government for the construction of naval vessels, such as the Fore River yard, the government's representatives on site were part of the Supervisor of Shipbuilding's staff (SUPSHIP). The Supervisor of Shipbuilding at a shipyard, including the one at issue here, was the head federal employee on site. ¹ He and his staff of engineers and skilled tradespersons were responsible for the attainment of technical standards as stated in the plans and specifications for the ships, for work completion according to schedule, and for quality workmanship in the various trades. A large part of this staff was drawn directly from the ranks of the Shipyard employees, and the Supervisor of Shipbuilding attempted to have the most experienced and skilled persons in each trade join his staff as inspectors in that particular line of work. On a daily basis, these inspectors fanned out through the ships being constructed to monitor and sign off on the various quality control tests that were performed on the ship, such as on the welded joints, installation of heaters and lockers, electrical wiring and instrumentation, and on the vast array of other parts and installations that comprise a ship. As the district court noted, "industrial safety was not the reason for these inspections."

The district court made the following findings of fact regarding the Navy's knowledge of and response to asbestos hazards: (1) "Navy inspectors from the Supervisor of Shipbuilding's staff inspected areas of the Shipyard in which asbestos and asbestos dust was open and obvious"; (2) "upper echelon Navy officials knew at least as early as 1940, and probably earlier, that asbestos dust posed a significant health hazard"; (3) this information, including the fact-finding studies that were performed, was disseminated through a number of channels; (4) in 1943, after Shuman's first period of work at the Shipyard, the Navy promulgated a document entitled "Minimum Requirements for Safety and Industrial Health in Contract Shipyards" (hereinafter "Minimum Requirements") which dealt in part with the hazards of asbestos dust; (5) the "Secretary of the Navy stated that he expected 'full and complete compliance' with the Minimum Requirements" and imposed these standards on shipyards operating under Navy contracts as well as the Navy's own yards. On the basis of these facts, the district court concluded that

it is more probable than not that the Supervisor of Shipbuilding and his subordinates actually knew as early as 1942 that significant levels of asbestos dust were present in the Shipyard and posed a hazard to Shipyard workers, and that the Navy had assumed responsibility for minimizing this hazard.

We pause to note that, based on our reading of the record, we must rule as clearly erroneous the court's finding that the Navy had assumed responsibility for minimizing the asbestos hazard during the times relevant in this case. As we discuss in greater detail infra, the Navy made efforts to minimize occupational hazards at shipyards after Shuman departed from the Shipyard in 1942 and eliminated its program at the close of World War II in 1945, several years prior to Shuman's return in 1951.

Although the district court made no findings of fact on the origin of the Minimum Requirements, nor on any Navy or government role vis-a-vis Bethlehem in promoting or enforcing industrial safety and health prior to the Minimum Requirements in 1943, the following uncontroverted facts also appear in the record. In the sample contracts the parties have stipulated were representative of those utilized during the relevant time period, Bethlehem, as contractor, agreed to abide by and enforce federal labor safety standards. The contracts themselves do not provide that the government assumed any duty during the relevant period to ensure the safety and health of Bethlehem's employees. The record indicates further that Bethlehem had visible and active safety and medical personnel during the times at issue, whereas the United States had no health or safety representatives at the Shipyard.

Prior to 1943, the date the Minimum Requirements were adopted, documents admitted into evidence show that the United States authorized the Massachusetts Department of Labor and Industries (DLI) to conduct safety and health compliance reviews under federal as well as state law. The first such agreement between the government and the Commonwealth of Massachusetts, effective June 1, 1941, called for cooperation between the relevant federal and state agencies so as to reduce inefficient overlap of resources. In the later agreements covering the pertinent time period, beginning with one effective November 10, 1942, the Administrator of the Wage and Hour and Public Contracts Division, pursuant to Administrative Order 103 promulgated by the Secretary of Labor, designated the Massachusetts DLI "as the sole agent to inspect plants in Massachusetts subject to the [Walsh-Healey] ² Act and to determine compliance with" its safety and health provisions, which are codified at 41 U.S.C. Sec. 35(e). Section 4 of the Walsh-Healey Act, 41 U.S.C. Sec. 38, specifically provided that the Secretary of Labor, with the consent of the state, could utilize state employees in the administration of the Act, a point recited in the 1942 agreement. That agreement further authorized the State

to notify employers that violation of State safety, sanitation, and health laws constitutes violation of [the Walsh-Healey] Act. The Massachusetts Department of Labor and Industries assumes responsibility for making such inspections and for enforcing State safety, sanitation, and health...