The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
Defendant, an asbestos manufacturer, moves to dismiss for
lack of subject matter jurisdiction plaintiff's tort claims
for damages allegedly caused by her late husband's exposure to
asbestos while serving as an engineer aboard vessels at sea.
Defendant's motion raises the question whether such claims
fall within the admiralty jurisdiction of the federal district
courts. This Court has apparently not previously addressed
that question. The Eastern District of New York answered it in
the negative, Lingo v. Great Lakes Dredge & Dock Co.,
638 F. Supp. 30, 33 (E.D.N.Y. 1986), Judge Sifton feeling
"compelled" to that conclusion by the Second Circuit's holding
in 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),
which involved shipyard workers, not seamen.
Plaintiff Sally Robinson is the representative of the estate
of her late husband Edward Robinson. During World War II
Robinson was employed as an engineer on merchant ships
operated by the United States. Plaintiff asserted wrongful
death claims against a number of asbestos companies and
against the United States. The asbestos companies manufactured
asbestos insulation installed in the engine rooms of vessels
upon which Robinson sailed. Plaintiff's claim against the
United States as employer and shipowner was founded upon the
Suits in Admiralty Act, 46 U.S.C.App. § 741 et seq. and the War
Shipping Administration Clarification Act of 1943, 50
U.S.C.App. § 1291. Plaintiff's claims against the asbestos
companies arise out of state law, alleged on the alternative
bases of pendent or admiralty jurisdiction.
Plaintiff's admiralty action against the United States has
been dismissed on the ground that the government's waiver of
sovereign immunity embodied in the Suits in Admiralty Act and
the Clarification Act was limited by the discretionary
function exception, and that the governmental conduct
complained of was discretionary within the meaning of that
exception. Robinson v. United States, 891 F.2d 31 (2d Cir.
1989). Accordingly the basis for pendent jurisdiction over
plaintiff's state law claims against the asbestos companies
disappears. Plaintiff may remain in this Court only if her
complaint states tort claims against the asbestos companies
which fall within admiralty jurisdiction. One of those
companies, the Celotex Corporation, contends that plaintiff's
claims are non-maritime. It moves to dismiss the complaint for
lack of subject matter jurisdiction. Because the parties
include affidavits in their motion papers, I treat Celotex's
motion as one for summary judgment under Rule 56, F.R. Civ.P.
See Rule 12(b).
The scourge of asbestosis increasingly engages the energies
of federal and state courts. In Keene Corp. v. United States,
supra, the Second Circuit dealt with claims asserted by Keene
that the United States was liable for the costs of thousands of
personal injury and wrongful death actions against Keene
arising from occupational exposure to asbestos fibers contained
in thermal insulation products manufactured or sold by a Keene
affiliate. To avoid the bar of sovereign immunity, Keene
invoked a number of jurisdictional statutes, only two of which
are pertinent here: the Suits in Admiralty Act, and the Public
Vessels Act, 46 U.S.C.App. §§ 781-790. Keene invoked those
statutes on the theory that its claims against the United
States fell within admiralty jurisdiction.
The Second Circuit held that Keene's claims did not sound in
admiralty. Citing Executive Jet Aviation, Inc. v. City of
Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972),
and Foremost Insurance Co. v. Richardson, 457 U.S. 668, 102
S.Ct. 2654, 73 L.Ed.2d 300 (1982), Judge Winter wrote at 843:
Admiralty jurisdiction in tort exists when the
wrong (1) took place on navigable waters
("situs") and (2) "bear(s) a significant
relationship to traditional maritime activity"
The Second Circuit subjected Keene's invocation of admiralty
jurisdiction to this two-pronged analysis. Keene lost on both
prongs. First, most of the claimants against Keene were
workers exposed to asbestos in land-based commercial
facilities, thereby failing the situs test. Id. at 844.
Attempting to salvage at least part of its admiralty claim,
Keene offered to make an individualized showing that certain
claimants were exposed in a maritime situs. But the Second
Circuit rejected that effort in its analysis of maritime
status, stating at 844:
Moreover, Keene has not met the second prong of
the Executive Jet test, the status requirement, and
a hearing on individualized situs would be futile.
This analysis is particularly pertinent to the case at bar.
Keene argued that the installation and use of its products on
shipboard was sufficient to meet the status test. Rejecting
the argument, the Second Circuit said:
However, Keene's argument makes the geographic
location of a tort decisive as a matter of law
and thus effectively collapses the situs and
status test, a result Executive Jet expressly seeks
to avoid. In Kelly v. United States, 531 F.2d 1144,
1146 (2d Cir. 1976), we stated that the status test
is satisfied when the "acts and omissions . . .
sufficiently relate to traditional maritime
activity," whether landbased or not. Under the
Kelly decision, two elements are critical in this
case. 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
and a component of insulation it purchased from