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ROBINSON v. U.S.

January 24, 1990

IN THE MATTER OF SALLY ROBINSON, AS PERSONAL REPRESENTATIVE OF THE ESTATE AND BENEFICIARIES OF EDWARD ROBINSON, PLAINTIFF,
v.
UNITED STATES OF AMERICA, NICOLET, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO KEASBY & MATTISON COMPANY, CERTAINTEED CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO KEASBY & MATTISON COMPANY, KEENE CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO EHRET MAGNESIA MANUFACTURING COMPANY, THE CELOTEX CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO PHILIP CAREY MANUFACTURING COMPANY; RAYMARK INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO RAYBESTOS-MANHATTAN, INC., ARMSTRONG WORLD INDUSTRIES, INC., EAGLE-PICHER INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO EAGLE-PICHER COMPANY, DEFENDANT.



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.

I.

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).

II.

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 were non-maritime. "Most" of the claimants against Keene were shipyard employees who "typically" worked with or around thermal insulation asbestos products, becoming exposed to and inhaling asbestos fibers during the course of their work. 700 F.2d at 838-39. The government sold Keene some of the asbestos used in its products, and Keene's asbestos-containing products were sold under contract both to the government and to others. Confronted by a myriad of death and injury claims, Keene sued the government for indemnification, contribution and apportionment, asserting causes of action sounding in negligence, breach of warranty, strict liability, and unjust enrichment. Id.

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"
  ("status").

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
  ...

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