The opinion of the court was delivered by: SIFTON
Plaintiff in this personal injury action alleges that he contracted an asbestos-related disease while employed at sea as a marine engineer. The defendants in this case include eleven asbestos manufacturers or suppliers and seven owners of vessels upon which plaintiff sailed. This matter is now before the Court on the defendant asbestos manufacturers' motions pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure to dismiss the complaint as against them for lack of subject matter jurisdiction.
The complaint asserts the following jurisdictional bases: diversity of citizenship; federal question; the Jones Act, 46 U.S.C. § 688; the Suits in Admiralty Act, 46 U.S.C. § 742; and the general maritime law of the United States. The defendant manufacturers had previously moved to dismiss the complaint for lack of subject matter jurisdiction. At oral argument before Judge Weinstein on January 10, 1986, plaintiff conceded that none of the complaint's jurisdictional allegations were sufficient as against the manufacturing defendants. However, Judge Weinstein deemed the complaint amended to allege admiralty jurisdiction. At oral argument defendants contended that even the complaint as amended lacked subject matter jurisdiction, citing Keene Corp. v. United States, 700 F.2d 836 (2d Cir.), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983). Judge Weinstein stated that Keene was "clearly distinguishable" from the present case since Keene involved a shipyard fabrication worker while the present case involves a seaman. Judge Weinstein provided the defendants an opportunity to brief the matter for argument before him. Subsequently, upon application made by defendant GAF Corporation this case was reassigned to this Court. Defendants have now renewed their motion to dismiss.
In Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972), the Supreme Court held that there is admiralty jurisdiction over tort claims only when the alleged injury occurs on navigable waters and if the wrong bears "a significant relationship to traditional maritime activity." Id. at 268. This two-pronged test, maritime locality plus a nexus to maritime activity, applies to all tort claims alleged to be within admiralty jurisdiction. Foremost Ins. Co. v. Richardson, 457 U.S. 668, 673-74, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982).
Since the Supreme Court's decision in Executive Jet and Foremost, six circuit courts of appeal, including the Second Circuit, have unanimously held that admiralty jurisdiction does not extend to asbestos-related claims by shipyard workers because the claims bear no significant relationship to traditional maritime activities. See Keene Corp., supra at 844-45, cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983); Austin v. Unarco Industries, Inc., 705 F.2d 1, 12-13 (1st Cir.), cert. pet. dismissed, 463 U.S. 1247, 104 S. Ct. 34, 77 L. Ed. 2d 1454 (1983); Oman v. Johns-Manville Corp., 764 F.2d 224, 230 (4th Cir. 1985) (en banc), cert. denied, 474 U.S. 970, 106 S. Ct. 351, 88 L. Ed. 2d 319 (1985); Lowe v. Ingalls Ship Building, 723 F.2d 1173, 1190 (5th Cir. 1984); Woessner v. Johns-Mansville Sales Corp., 757 F.2d 634, 649 (5th Cir. 1985); Owens-Illinois, Inc. v. U.S. District Court, 698 F.2d 967, 970-71 (9th Cir. 1983); Myhran v. Johns-Manville Corp., 741 F.2d 1119, 1122-23 (9th Cir. 1984); Harville v. Johns-Manville Products Corp., 731 F.2d 775, 781 (11th Cir. 1984).
This Court has similarly ruled that there is no admiralty jurisdiction over asbestos-related claims of shipyard workers, even assuming the satisfaction of the maritime locality prong of the Executive Jet test because these claims do not have the requisite significant relationship to traditional maritime activity. In re Eastern District of New York Asbestos Litigation, MF-1 (E.D.N.Y. Oct. 13, 1983).
Plaintiff correctly notes that, as a seaman and not a shipyard worker, his case is different from the cases cited above.
In fact, had this case been brought in another circuit, this Court has little doubt that this difference would be a critical distinction compelling the conclusion that admiralty jurisdiction exists for plaintiff's claim. In Austin, supra, for example, the First Circuit focused on the plaintiff's activity in determining whether the complaint had the significant nexus to traditional maritime activity required. Thus, the First Circuit concluded that "personal injuries to seamen and others doing seamen's work do fall within the traditional concerns of admiralty law and are claims over which admiralty tort jurisdiction would be proper." 705 F.2d at 11. The Austin court based its decision denying admiralty jurisdiction to shipyard workers on the conclusion that the shipyard workers' activities were not sufficiently analagous to seamen's activities. Here, since plaintiff allegedly was a seaman injured while at sea, the Austin court's analysis clearly suggests that admiralty jurisdiction is proper for his claim.
In contrast, however, the Second Circuit in Keene focused not on the injured individual's activities, but rather on the defendants' activities. Keene involved a suit for indemnity and contribution brought by an asbestos manufacturer against the United States Government for, inter alia, designing and specifying asbestos insulation products and failing to inspect the workplace. Although Keene clearly presented a quite different case from the present one, its broad language suggests that the Second Circuit would not find the wrongs alleged in the present case sufficiently related to traditional maritime activity. The Keene court found two elements critical to its determination:
"First, Keene does not allege that its insulation was designed specifically for maritime use. Indeed, it appears from the complaint that it was used in a variety of land-based plants and refineries. Second, many of the roles attributed to the government and allegedly giving rise to Keene's cause of action -- the government's sale of asbestos to Keene, its specification of asbestos as a component of insulation it purchased from Keene, its alleged breach of its duty to inspect the workplace, its obligations as a promulgator of health regulations -- do not bear a significant relationship to the traditional maritime activities such as 'navigation and commerce.'"
Keene, supra, 700 F.2d at 844.
This apparent requirement that there be some independent connection between the asbestos product and traditional maritime activity has been criticized by other circuits on the ground that in other contexts courts have extended admiralty jurisdiction to manufacturers regardless of their intent or knowledge that their product would be used on a ship. See, e.g., Austin, 705 F.2d at 9; Woessner, 757 F.2d at 640. Thus, in Sperry Rand Corp. v. RCA, 618 F.2d 319 (5th Cir. 1980), the Fifth Circuit held that an action for indemnity or contribution could be brought in admiralty against a manufacturer whose products were implicated in a grounding of a vessel and a collision upon navigable waters even though the products were manufactured on land and were not designed specifically for maritime use. However, in Keene, the Second Circuit expressly declined to follow the reasoning in Sperry. Keene, supra, 700 F.2d at 844-45.
In the present case plaintiff does not allege that any of the manufacturers supplied products of a distinctly maritime nature. Given the explicit rejection of Sperry by the Second Circuit in Keene, this Court is compelled to conclude that it does not have admiralty jurisdiction over the present case.
This is not the end of the inquiry, however. Defendant Great Lakes Dredge & Dock Co., a shipping company, opposes the motions to dismiss on the ground that this Court should assert pendent jurisdiction over the manufacturer defendants. In dicta, the Supreme Court in Aldinger v. Howard, 427 U.S. 1, 18, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976), has strongly suggested that joinder of a pendent party might well be proper in cases of which the federal court has exclusive jurisdiction since only in a federal court may all ...