Swogger v. Waterman S.S. Corp.

• Decision Date: 03 October 1989
• Docket Number: SEA-LAND,JOHNS-MANVILLE
• Citation: 546 N.Y.S.2d 80,151 A.D.2d 100
• Parties: Anna Claire SWOGGER, etc., Plaintiff, v. WATERMAN STEAMSHIP CORP., et al., Defendants.SERVICE, INC., Third-Party Plaintiff-Respondent, v.CORPORATION, et al., Third-Party Defendants, and Armstrong World Industries, Inc., et al., Third-Party Defendants-Appellants. and PUERTO RICO MARINE MANAGEMENT, INC., Additional Third-Party Plaintiff, v. TODD SHIPYARDS CORP., Additional Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 80

546 N.Y.S.2d 80

151 A.D.2d 100

Anna Claire SWOGGER, etc., Plaintiff, v. WATERMAN STEAMSHIP CORP., et al., Defendants.

SEA-LAND SERVICE, INC., Third-Party Plaintiff-Respondent, v. JOHNS-MANVILLE CORPORATION, et al., Third-Party Defendants, and Armstrong World Industries, Inc., et al., Third-Party

Defendants-Appellants.

and

PUERTO RICO MARINE MANAGEMENT, INC., Additional Third-Party Plaintiff, v. TODD SHIPYARDS CORP., Additional Third-Party Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Oct. 3, 1989.

Stephen K. Carr, of counsel (Richard A. Menchini, with him on the brief; Haight, Gardner, Poor & Havens, New York City, attorneys), for third-party plaintiff-respondent.

Steven Cooper, of counsel (John H. Kazanjian, Peter B. Friedman and David L. Noonan, with him on the brief; Anderson Russell Kill & Olick, P.C., New York City, attorneys), for third-party defendants-appellants, Armstrong, Keene, Baldwin-Ehret, Pittsburgh Corning, H.K. Porter, Southern Textile, GAF, Nat. Gypsum, Owens-Corning, Rock Wool, Fibreboard, Celotex, Phillip Carey, Flintkote and Thorpe.

Douglas A. Boeckmann, of counsel (Campbell, O'Connor & Carlucci, attorneys), for third-party defendant-appellant, Chesterton.

Margaret R. Smith, of counsel (Fogarty & Fogarty, P.C., Mineola, attorneys), for third-party defendant-appellant, J.P. Stevens.

Norman D. Lipton, of counsel (Roger P. McTiernan, Sr., Suzanne M. Halbardier and Richard W. Wedinger, with him on the brief; Barry McTiernan & Moore, New York City, attorneys), for third-party defendant-appellant, John Crane-Houdaille, Inc.

Before MURPHY, P.J., and ROSS, ASCH, ROSENBERGER and SMITH, JJ.

MURPHY, Presiding Justice.

The original plaintiff, John D. Swogger, commenced this action in 1979, seeking damages against owners of commercial ships, on which plaintiff had served as a crew member, for injuries allegedly resulting from asbestos exposure. For three decades, Swogger had served as a marine engineer on various ships owned by the five defendants. The asbestos exposure is alleged to have occurred on the high seas.

In 1980, Swogger died of mesothelioma. His widow was substituted as plaintiff. She served an amended complaint asserting a cause of action for wrongful death. In 1984, numerous third-party complaints were served seeking contribution or indemnity from manufacturers and installers of asbestos insulation products used in maritime vessels. The main action was settled between plaintiff and the shipowners, and the third-party actions were severed.

The third-party defendants moved to dismiss the actions for failure to state a cause of action [C.P.L.R. § 3211(a)(7) ], on the ground that New York General Obligations Law § 15-108 bars the actions insofar as they seek contribution, and that indemnity is unavailable on the facts as pleaded.

The Motion Court denied the motions in all respects, holding that Admiralty law rather than New York law applied to the third-party actions, and thus G.O.L. § 15-108 did not bar the contribution claims, 136 Misc.2d 410, 518 N.Y.S.2d 715. We affirm.

In a well-reasoned decision, Justice Dontzin analyzed the jurisdictional issue under Executive Jet Aviation Corp. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), and its progeny. In Executive Jet, the Supreme Court formulated a two-prong test for determining whether Admiralty jurisdiction applies to maritime tort claims. First, the tort must have a maritime location; before Executive Jet, this factor alone was determinative. Secondly, the wrong must "bear a significant relation to traditional maritime activity." Id. at 268, 93 S.Ct. at 504. The Motion Court then analyzed the four factors that courts generally weigh when determining whether the "maritime status" requirement is satisfied: "(1) traditional concepts of the role of Admiralty law; (2) the function and role of the parties; (3) the types of vehicles and instrumentalities involved; and (4) the causation and nature of the injury suffered." See Kelly v. Smith, 485 F.2d 520 (5th Cir.1973); T.J. Falgout Boats, Inc. v. United States, 508 F.2d 855, 857 (9th Cir.1974), cert. denied, 421 U.S. 1000, 95 S.Ct. 2398, 44 L.Ed.2d 667 (1975).

We agree with the Motion Court's conclusion. Additionally, we believe that the application of Admiralty law is proper and the Executive Jet requirement is satisfied for two reasons. First, the asbestos exposure occurred on the high seas outside the territorial jurisdiction of any State. Thus, no State is ousted of jurisdiction by applying Admiralty law. See Executive Jet Aviation Corp. v. City of Cleveland, supra; Foremost Insurance Co. v. Richardson, 457 U.S. 668, 677, 102 S.Ct. 2654, 2659, 73 L.Ed.2d 300 (Powell, J., dissenting). Secondly, Swogger was a seaman--a crew member--of vessels engaged in maritime commerce, not a longshoreman or harborworker. Seamen are the "wards of Admiralty," which jealously protects their rights, especially with respect to injuries caused by the hazards of maritime service over which they have little control. See Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). When a crew member of a commercial vessel is injured in the course of maritime service, Admiralty law is routinely applied to the resultant claims. See Black v. Red Star Towing & Transportation Corp., 860 F.2d 30 (2d Cir.1987); Daughtry v. Diamond M Co., 693 F.Supp. 856 (C.D.Cal.1988).

The dissent urges two grounds for granting the motions and denying the applicability of Admiralty law. First, the dissent argues that under Executive Jet, and Keene Corp. v. United States, 700 F.2d 836 (2d Cir.1983), the tort claim of injury from asbestos exposure lacks a "maritime nexus" under the second prong of the Executive Jet test. Secondly, the dissent argues that Admiralty law should not be applied because the allegations of the complaint are similar to those raised in multiple landbased asbestos lawsuits and do not implicate traditional concepts of maritime law such as seaworthiness, cargo damage, salvage, or the like. We disagree.

The similarity of the allegations of the third-party complaints here at issue to those presented in multiple land-based asbestos lawsuits should not be of any jurisdictional significance. The determination of whether Admiralty law applies turns on whether the plaintiff was "doing what sailors normally do or used to do." See Oman v. Johns-Manville Corp., 764 F.2d 224, 230 (4th Cir.1985). Surely Swogger's claim as a crew member is distinguishable from the harborworker cases relied upon by the dissent. It should also be noted that longshoremen and harborworkers are covered under a separate statutory framework. See Longshore and Harborworker's Compensation Act, 33 U.S.C.A. § 901 et seq.

In East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986), the Supreme Court approved of a line of cases incorporating the law of products liability, including strict liability, into Admiralty law. Id. at 865, 106 S.Ct. at 2299. The Court then stated that under Executive Jet and its progeny,

"[w]hen torts have occurred on navigable waters within the United States [emphasis added], the Court has imposed an additional requirement of a 'maritime nexus'--that the wrong must bear 'a significant relationship to traditional maritime activity.' [Citations omitted.] We need not reach the question whether a maritime nexus also must be established when a tort occurs on the high seas. Were there such a requirement, it clearly was met here, for these ships were engaged in maritime commerce, a primary concern of Admiralty law." Id. at 864, 106 S.Ct. at 2298.

In our view, the language of East River S.S. is dispositive of this appeal. Not only did the Supreme Court expressly approve of applying Admiralty law to products liability claims, but it clarified the applicability of the Executive Jet test where the injury occurred on the high seas. Inasmuch as the ships on which Swogger served were engaged in maritime commerce on the high seas, any maritime status requirement is thus satisfied. Also, the dissent's contention that the allegations of the third-party complaints do not implicate traditional concepts of maritime law is of no significance in light of the express inclusion of products liability into Admiralty law by the United States Supreme Court.

The dissent and appellants rely upon dicta contained in the Second Circuit's decision in Keene Corp. v. United States, supra, that Admiralty Jurisdiction does not extend to product liability tort claims involving asbestos exposure where the asbestos containing product is not specifically designed for maritime use. Keene Corp. v. United States affirmed the dismissal of a third-party complaint against the United States for contribution and indemnification with respect to some 14,000 asbestos claimants whose exposure to asbestos occurred almost exclusively in land-based settings, including power plants, industrial plants, shipyards, and refineries. There is a vague allegation in Keene that some claimants may have been exposed on shipboard, but it is not clear from the decision whether the ship was at sea. In any event, the Second Circuit affirmed the dismissal of the Federal Tort Claims Act claim for defective notice of claim, and the dismissal of the Admiralty claim on the ground that the group of 14,000 claimants had not made individualized claims with respect to which claimants alleged a maritime situs and which claimants did not. Keene did not involve any claims by crew members of ships engaged in commerce on the high seas.

The Keene decision went on to state that the third-party claims failed "to implicate traditional concepts of maritime law such as seaworthiness, cargo damage, salvage or the like" [Id. at 844], for two reasons: first, that there was no allegation that the asbestos products were specifically designed for maritime use, and secondly that...