Taylor v. Csr, 02762 September Term, 2006.

• Decision Date: 09 September 2008
• Docket Number: No. 02762 September Term, 2006.,02762 September Term, 2006.
• Citation: 181 Md. App. 363,956 A.2d 754
• Parties: Andrea TAYLOR, et al. v. CSR LIMITED, et al.
• Court: Court of Special Appeals of Maryland

956 A.2d 754

181 Md. App. 363

Andrea TAYLOR, et al. v. CSR LIMITED, et al.

No. 02762 September Term, 2006.

Court of Special Appeals of Maryland.

September 9, 2008.

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

F. Ford Loker (Laura A. Cellucci, Miles & Stockbridge, PC, on brief), Baltimore, for appellee.

Panel: HOLLANDER, PAUL E. ALPERT, (Retired, Specially Assigned) and SALLY D.^* ADKINS, JJ.

ADKINS, J.

The estates of two stevedores alleged to have contracted cancer from exposure to asbestos while unloading bags of asbestos at the Port of Baltimore, appeal the dismissal of their claim for a lack of personal jurisdiction against an Australian company. CSR Limited, d/b/a Colonial Sugar Refining Co., Ltd. ("CSR"), appellee, is an Australian corporation alleged to have shipped bags of asbestos fiber to the Port of Baltimore at the time Alfred B. Smith and Joseph Anzulis worked there as stevedores. Andrea Taylor, personal representative for the Smith estate, and Mary Fuchsluger, personal representative for the Anzulis estate, present the following question for our review:

Did the trial court err as a matter of law in granting CSR's motion to dismiss for lack of personal jurisdiction?

Viewing the evidence in the light most favorable to appellants, we conclude that appellants made a prima facie case that CSR has sufficient contacts in Maryland to support personal jurisdiction for these causes of action.

FACTS AND LEGAL PROCEEDINGS

The estates (hereinafter together referred to as "Taylor"), sued several corporate entities including CSR, alleging that Smith and Anzulis, while working as stevedores at the Port of Baltimore, were exposed injuriously to asbestos fibers exported by CSR while offloading bags containing asbestos. Taylor maintains that as a result of this off-loading, Smith and Anzulis contracted mesothelioma, a cancer caused by exposure to airborne asbestos fiber. Taylor alleges multiple causes of action, including strict liability, breach of warranty, negligence, and fraud.

Taylor alleges that CSR operated an asbestos mine through a wholly owned subsidiary, Australia Blue Asbestos Pty. Limited ("ABA"), and CSR, as the mine's exclusive distributor, exported asbestos fiber for sale to customers in the United States, particularly Johns-Manville International.¹ CSR is alleged to have made such exports from 1943 to 1966, with some of the shipments passing through the Port of Baltimore.

Smith and Anzulis worked at the Port unloading cargo from approximately 1942 through 1983 and 1937 through 1973, respectively. Lloyd M. Gardner, Sr., a co-worker of Smith and Anzulis, stated in an affidavit that he unloaded, among other various cargos, thousands of burlap bags containing loose asbestos, shipped to Baltimore from foreign ports. According to Gardner, he unloaded shipments of asbestos from Australia up to six times a year in the 1950s and 60s, and some of these bags had a diamond-shaped logo on them with the letters "CSR." Gardner also testified in a deposition that the offloading of the bags produced dust. Gardner remembers 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 deposition testimony that he recalled unloading CSR-labeled burlap bags containing asbestos, that dust would be "all over the place[,]" and that Smith and Anzulis were present during these unloading jobs.

From 1943 to 1966, CSR owned a subsidiary, ABA, that mined and packaged crocidolite asbestos in Western Australia. During that time, CSR functioned as ABA's agent for asbestos fiber sales to customers in the United States. In addition to its asbestos export activities, CSR was involved in the sugar refining and export business. CSR had an agreement with the state of Queensland, Australia, to market all Australian exports of raw sugar, including the arrangements for sale, transport, insurance and financing.² Maryland Port Authority statistics indicate that during the years of 1964 through 1966, approximately 82,847 tons of raw sugar were imported to the Port of Baltimore from Australia having a total value of $10,921,373, a value in 2005 dollars of over $66.5 million.

On October 10, 2005, CSR filed a motion to dismiss Taylor's complaint against CSR on the ground that Maryland does not have personal jurisdiction. In an affidavit, Edwin Anthony Smith, manager of CSR's Group Financial Reporting,³ stated that CSR has never been incorporated or licensed to do business in Maryland, nor has it ever appointed an agent for purposes of accepting service of process in Maryland. According to Smith, CSR has never conducted or solicited any business in Maryland; has never had any employees or agents based or residing in the state; has never maintained an office, telephone listing, mailing address or bank account in Maryland; and has never owned, leased, or possessed any interest in real or personal property in the state. Smith asserts that CSR has never conducted an asbestos-related business in Maryland, has never been a party to any contract in the state, and has not been required to perform any contract in the state. Smith also states that CSR has never manufactured, produced, merchandised, marketed, supplied, distributed, sold or installed asbestos products in Maryland. According to Smith's understanding, the purchaser of asbestos fiber was "basically responsible for it" when it left the port in Australia and where it went "was dictated by the purchaser."

In opposition to CSR's motion to dismiss, Taylor provided as exhibits four invoices, indicating CSR shipments of asbestos fiber from Australia to the Port of Baltimore during the period of time in which Smith and Anzulis worked as stevedores.⁴ Taylor also provided an affidavit of Captain Robert Stewart, a maritime expert, indicating that three of the four invoiced shipments were made pursuant to "C.&.F./C.I.F." shipping contracts, short for "Cost and Freight[,]" in which CSR, as the "seller/shipper/consignor" of the asbestos fiber, was obligated to package and mark the asbestos fiber, identifying the contents and port destination; prepare an invoice; contract for marine insurance; obtain necessary shipping documents, such as export licenses; pay all freight charges to the carrier, including costs associated with hiring a stevedore company to unload the cargo; obtain a clean negotiable bill of lading, covering the transportation to Baltimore; and remain responsible for the cargo until it arrived and was unloaded in Baltimore, at which time the buyer accepted the cargo. Stewart also indicated that under C.&.F. or CIF agreements, CSR would have access to Maryland courts if any of the buyers wrongly failed to accept the asbestos shipments upon delivery in Baltimore. According to Stewart, the terms of the four invoices indicate that the shipments cumulatively weighed over 1.2 million pounds, consisting of 13,332 individual bags of asbestos fiber.⁵

Taylor also provided the court with an affidavit of Dr. Barry Castleman, an environmental consultant with expertise regarding the history of the asbestos industry and development of knowledge of asbestos disease and worker health. Castleman provided his opinion that from 1943 to 1966, CSR would have known that burlap bags containing asbestos fiber from ABA's mine in Western Australia were handled and unloaded by stevedores at various ports and that such bags would often break, tear, or be punctured, thereby exposing stevedores and others to airborne asbestos. Castlemen also stated that CSR regularly advertised the sale of ABA asbestos, from approximately 1942 through 1966, in Asbestos, a trade magazine of the United States asbestos industry. From 1954 to 1966, CSR placed advertisements in Asbestos issues every other month. Castlemen opined that CSR would have known that its marketing in Asbestos would have reached Maryland consumers, such as Porter Hayden and Wallace and Gale, Baltimore insulation contractors. According to Castlemen, CSR was aware of the potential health hazards of its crocidolite asbestos dust in the 1940s and became aware in the early 1960s that one of its mill workers had developed mesothelioma.

On November 2, 2006, the Circuit Court for Baltimore City held a hearing on CSR's motion to dismiss and concluded in the following oral ruling that CSR lacked substantial meaningful contacts with Maryland and that subjecting CSR to the court's jurisdiction would be constitutionally unfair:

So the minimum contacts that are necessary to be shown, four invoices in this Court's opinion, at least, do not indicate any meaningful contact with the State of Maryland such that one could say that this indicates that they would anticipate that the defendant could anticipate that he would be hailed into court in this State.

I know that the plaintiff says that it is not just four invoices, that there were substantial shipments in this matter, but there are four. That's really the number that I am looking at. And it is over a rather substantial period of time.

I don't find that these are the substantial meaningful contacts. I have discussed or indicated, I guess while the plaintiff was arguing, that the advertising was done, I think, under the Camelback case is also not significant.

The fact that the customers, mostly Johns-Manville, directed the defendant to send the goods to the Port of Baltimore to me is significant.

I think that when one is following the instructions of the customer to send the shipment where they are directed to send it that they have to follow the orders of the customer.

They are certainly not thinking that that is an action that they could reasonably expect that they are going to be hailed into court based on that.

And I have to say that, even if one could say that there were certain minimal contacts here,...