Opposition — Austin v. Unarco Industries, Inc.

No. 82-2164 JUL 28 1983

IN THE ALEXANDER L. STSVAS,

CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1983

MARGARET AUSTIN,

Petitioner

VS.

UNARCO INDUSTRIES, INC., ET AL.,

Respondents

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

RESPONDENT RAYBESTOS-MANHATTAN, INC.'S

BRIEF IN OPPOSITION

Benjamin Thompson

Thomas R. McNaboe

Mark G. Furey

John R. Bass II

THOMPSON, WILLARD &

MCNABOE

85 Exchange Street

Portland, ME 04112

COUNSEL FOR RESPONDENT

RAYBESTOS-MANHATTAN,

INC.

No. 82-2164

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

MARGARET AUSTIN,

Petitioner

vs.

UNARCO INDUSTRIES, INC., ET AL.,

Respondents

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

RESPONDENT RAYBESTOS-MANHATTAN, INC.'S

BRIEF IN OPPOSITION

TABLE OF CONTENTS

Index to Appendices ....eeeuee

Pable of Authorities ..ccccocce

Reasons Why the Writ

Should Be Denied **eeeeeeeeeeeee

l.

The decision of the

First Circuit Court of

Appeals is in harmony

with developing case law

and is distinguishable

from the Fourth Circuit

GOGSHACR. awaccatedevsecrs

The decision of the

First Circuit Court of

Appeals on the federal

question of admiralty

jurisdiction is con-

sistent with the law

settled by this Court...

The decision of the

First Circuit is not

final and the Peti-

tioner may yet obtain

the relief she seeks

under state law. ......

COBGLUSIOR ccasccevrcecccsececes

Certificate of Service ......

-i-

11

13

INDEX TO APPENDICES

Page

First Circuit Court

Decision (complete) ........ App. 1

Mandate ln enn eee eee eee ee Se App. 85

Certificate of the

United States District

Court to the Supreme

Judicial Court of Maine..... App. 86

-ii-

TABLE OF AUTHORITIES

Cases

Austin vs. Unarco Industries,

Inc., Et Al., 705 F.2al

SS Cie. 1983) *enree en eeeee#e###e#ee

Brotherhood of Locomotive

Firemen vs. Bangor and

Aroostook RR , 389 U.S. 327

J cece cccccccccccccvcccces

Executive Jet Aviation vs.

Cleveland, 409 U.S. 249 (1972)

Foremost Insurance Company

VS. Richardson, 454 U.S. 813

(1982) **eeeeeeeeeeeeee eee eee eee

Hamilton-Brown Shoe Co. vs.

United States, 240 U.S. 251

JIG III Corporation vs. Puritan

Marine Insurance Underwriters

Corporation, 519 F.2d li

= Csr. 75) *eerieenteeeeeeee#ee##e#

Jones vs. Bender Welding &

Machine Works, 561 F.2d 1l33l

3 Ca. ) *enrereeeteeeneeeeneeee#ege’.

Keene Corporation vs. United

States, 700 F.2d 636 (and Cir.

-iii-

ll

2, 3

Owens-Illinois, Inc. vs.

United States District Court

for the Western District of

Washington, 6938 F.2d 967

(Sth Cie 1983) iatueethotseves

Pan-Alaska Fisheries, Inc.

vs. Marine Construction and

Design Co., 565 F.2d 2

Pee GEbe BElT) eeeseceeececoes

ee vs. United States,

3 Uebe 20 (1961) oeeeeeeeeeee

Schaeffer vs. Michigan-Ohio

Navigation Co., 416 F.2d 217

S Gas e ) *enrieneee#eee#e#ee#e#e##e#e#«#

Sperry Rand Corporation vs.

Radio egegoration of America,

ie = eg, Ee *-e

United New York and New

Jersey sandy Hooks Pilots

Association vs. Halecki,

U.S. a ) *eeee

White vs. Johns-Manville

Corporation, 662 F.2d 234

Chek eg gee cert.

denied, 454 U.S. 1163

2) oeeeeeeeeeeeeeeeeeeeeee

-iv-

a, 3

8-9

2, 3, 4

The Respondent, Raymark Industries,

Inc. (formerly known as Raybestos-

Manhattan, Inc.),> respectfully

requests that this Court deny the

Petition for Writ of Certiorari, seeking

review of the First Circuit's opinion in

this case. That opinion is reported at

705 F.2d 1 (1983).

l. The parent corporation of Raymark

Industries, Inc. is Raymark Corporation,

Trumbull, Connecticut. The following

are non-wholly-owned subsidiaries:

1. Daikin-R-M Co., Ltd.,

1053-2 Kamiosatsu

Chitose City, Hokkaido,

Japan

2. Itapsa

Apartado Postal 9-052

Los Reyes La Paz

Epe. de Mexico 9

Mexico

REASONS WHY THE

WRIT SHOULD BE DENIED

1. The decision of the First

Circuit Court of Appeals

is in harmony with developing

case law and is distinguishable

from the Fourth Circuit decision.

The extension of admiralty

jurisdiction to encompass products

liability claims brought by shipyard

workers against asbestos product

manufacturers has been recognized only

by the Fourth Circuit in White vs.

Johns-Manville Corporation, 662 F.2d 234

(4th Cir. 1981), cert. denied, 454 U.S.

1163 (1982). Later decisions of the

Second Circuit, Keene Corporation vs.

United States, 700 F.2d 836 (2nd Cir.

1983), and. the Ninth Circuit,

Owens-Illinois, Inc. vs. United States

District Court ior the Western District

of Washington, 698 F.2d 967 (9th Cir.

1983), have reviewed and rejected the

rationale of the Pourth Circuit in

White. The grounds for denial of such

an expansion of admiralty jurisdiction

vary, however, and demonstrate the

necessity for a factual foundation in

the trial court.

In Keene, Supra, the court

described the vessels at the shipyard as

"withdrawn from navigation" and

therefore concluded that the services

rendered by shipyard workers during ship

overhauls were non-maritime. 700 F.2d

at 844. In Owens-Illinois, supra, the

court found no maritime nexus because

the labor of the shipyard workers was

performed on vessels being built at the

yard. 698 F.2d at 970. In the instant

case, the First Circuit found that the

services performed by workers at the

yard were not “traditionally maritime®*

because inter alia such labor was

specialized beyond that which

traditionally was done by crewmembers

and because the hazards exposed were not

peculiar to maritime navigation. Austin

vs. Unarco Industries, 705 F.2d l, 14

(lst Cir. 1983). (See, Appendix at p.

61). Furthermore, by concurring opinion

even the Fourth Circuit has indicated

that admiralty jurisdiction may not

obtain for exposure both ashore and on

board ship. White vs. Johns-Manville

Corp., supra, 662 F.2d at 242. The

various rationales of the several

circuits suggest, then, that the issue

of admiralty jurisdiction depends on the

facts of each case.

The instant case is not ripe for

review by this Court because the factual

bases for a decision of national scope

on the reach of admiralty jurisdiction

were never laid in the trial court.

Because Petitioner's motion to amend her

complaint to assert the applicability of

maritime law was denied, the admiralty

issue was foreclosed before trial.

Accordingly, the trial record lacks

evidence on important factual issues

such as the extent of the decedent's

shoreside expcsure to asbestos and the

navigational capabilities of the vessels

on which he worked.

2. The decision of the First

Circuit Court of Appeals on

the federal question of

admiralty jurisdiction is

consistent with the law

settled by this Court.

Petitioner asserts as Reasons (2)

and (3) that the decision of the court

below to deny admiralty jurisdiction is

contrary to and without foundation in

the decisions of this Court. An examin-

ation of the relevant decisions of this

Court and of lower federal courts,

however, establishes that the First

Circuit decision follows established

principles of admiralty jurisdiction.

Executive Jet Aviation vs.

Cleveland, 409 U.S. 249 (1972),

established the scope of admiralty

jurisdiction over tort claims. The

wrong must meet locality requirements

and must "... bear a significant

relationship to traditional maritime

activity." Id. 268. Operation of

vessels on navigable waters bears such a

relationship. Foremost Insurance

Company vs. Richardson, 454 U.S. 813

(1982). The circuit court cases which

recognize products liability claims in

admiralty grow out of traditional marine

casualties. Schaeffer vs. Michigan-Ohio

Navigation Co., 416 F.2d 217 (6th

Cir.1969) (injury to crewmember at

sea); JIG III Corporation vs. Puritan

Marine Insurance Underwriters

Corporation, 519 F.2d 171 (5th Cir.

1975) (sinking of vessel); Pan-Alaska

Fisheries, Inc. vs. Marine Construction

and Design Co., 565 F.2d 1129 (9th Cir.

1977) (vessel fire at sea); Jones vs.

Bender Welding & Machine Works, 581 F.2d

1331 (9th Cir. 1978) (vessel engine

failure at sea); Sperry Rand Corporation

vs. Radio Corporation of America, 618

F.2d 319 (5th Cir. 1980) (grounding of

vessel). In the instant case there was

no casualty or event which possibly

could affect waterborne commerce or the

navigation of vessels at sea.

In order to show a maritiine

connection, Petitioner makes much of the

fact that this Court has extended the

shipowners warranty of seaworthiness to

those workers on board a vessel doing

work traditionally done by seamen. The

only employment of Petitioner's decedent

upon navigable waters appears to have

been aboard vessels still under con-

struction, or vessels laid-up for major

overhauls. In these situations, the

shipbuilders or ship repairmen are not

"seamen" and there is no warranty of

seaworthiness. Roper vs. United States,

368 U.S. 20 (1961).

"It avails nothing to say that the

decedent was an ‘electrician', and

that many modern ships carry

electricians in their crew.... It

is scarcely more helpful to indulge

in the euphemism that the decedent

was ‘cleaning’ part of the ship,

and to say that it is a traditional

duty of seamen to keep their ship

clean." United New York and New

Jersey Sandy Hooks Pilots

Association vs. Halecki, 358 U.S.

, 618 (1959).

As the court below found, the

Petitioner's decedent was not doing the

work of a seaman. His labor had no

relationship to traditional maritime

activities. Accordingly, the decision

of the First Circuit to deny the

application of admiralty jurisdiction in

a products liability claim brought on

behalf of a land-based laborer arising

out of employment upon vessels still

under construction or withdrawn from

navigation for overhaul is entirely

consistent with the principles

established by this Court.

3. The decision of the First

Circuit is not final and

the Petitioner ma et obtain

the relief she seeks under

state law.

The Court below concluded as

follows:

"In conclusion, we affirm the

ruling of the district court that

admiralty law did not apply to

plaintiff's claims. We remand the

case, however, for the court to

determine, either with the aid of

briefing by the parties or by

certifying the question to the

Supreme Judicial Court of Maine,

whether Maine's comparative

negligence statute should be

applied to a claim based on 14

M.R.S.A. § 221. If so, the court's

dismissal of the strict liability

count was harmless error. If not,

the case should be retried under

Maine law and the jury be given an

opportunity to determine whether

defendant was strictly liable for

its failure to warn of the dangers

of asbestos and what proportion, if

any, of the damages should be

offset by plaintiff's decedent's

own negligence.

Vacated and remanded for

proceedings consistent with

this opinion.” 705 F.2d at 18.

(See, Appendix at. p. 83).

The matter is now in the United States

District Court for the District of

-10-

Maine, and the state law questions have

been certified to the Supreme Judicial

Court of Maine. (See, Appendix at p.

86.) This lack of finality of the

judgment below "... of itself alone

furnishe[s] sufficient ground for the

denial of the application."

Hamilton-Brown Shoe Co. vs. United

States, 240 U.S. 251, 258 (1915). Since

this case was remanded and may yet be

resolved in favor of the Petitioner, it

is not ripe for review by this Court.

Brotherhood of Locomotive Firemen vs.

Bangor and Aroostook RR, 389 U.S. 327

(1967).

CONCLUSION

For these reasons, the Petition for

wits

a Writ of Certiorari should be denied.

Respectfully submitted,

Attorneys for Respondent,

Raybestos-Manhattan, Inc.:

THOMPSON, WILLARD & MCNABOE

ET i aa

Benjamin Thompson, Esq.

LUG Ml

Thomas B®. MCNaboe, Esg.

Np Lop 7

k/ G. Furey, Esc

e.....

y=

goohn R. Bass II, Esq.

-]2-

CERTIFICATE OF SERVICE

I, Benjamin Thompson, Esq., certify

that on or before the 27th day of July,

1983, I mailed, postage prepaid, 40

copies of this Brief in Opposition to

the Clerk, U.S. Supreme Court, and

mailed three copies, postage prepaid, to

Patrick N. McTeague, Esq., McTeague,

Higbee, Libner, Reitman & Priest, P.O.

Box 340, Brunswick, Maine 04011, counsel

for Petitioner, and three copies to

Peter W. Culley, Esq., Hewes, Culley,

Feehan and Beals, P.O. Box 7240,

Portland, Maine 04112, counsel for

Unarco.

V Ao Se ——

on Thompson, Esq.

“13=

AUSTIN vs. UNARCO INDUSTRIES, INC.

705 F.2d 1 (1983)

United States Court of Appeals,

First Circuit

No. 82-1168

Decided March 30, 1983

COFFIN, Chief Judge

Factual and Procedural Background

This is an appeal of one segment of

a complex collection of complaints by

victims of asbestos-related cancer and

their survivors against producers and

suppliers of asbestos products used at

Bath Iron Works from the mid 1950's

until the early 1970's. Plaintiff's

decedent, Blaine Austin, was employed at

Bath Iron Works (BIW) from 1952 through

the fall of 1976 as a painter and

cleaner. He worked on board ships

berthed in the Kennebec River at BIW,

both on new ships berthed in the river

after launching and on older ships

brought into BIW for repair. His

primary job was to follow behind the

pipecoverers, who applied asbestos

insulation products to the ships' pipes,

boilers and other machinery, and paint

over the asbestos insulation. He was

also responsible for sweeping up

asbestos scraps left by the

pipecoverers. During both tasks, he

breathed in asbestos fibers and dust

created by the pipecovers' cutting and

shaping of the asbestos insulation. In

November, 1976, plaintiff's decedent was

diagnosed as having pleural mesotheli-

oma, an asbestos-induced cancer of the

lining of the lung. He died on October

13, 1977.

On June 14, 1978, plaintiff brought

suit in the United States District Court

for the ‘istrict of Maine against a

number of suppliers of asbestos to Bath

Iron Works. Her complaint alleged

jurisdiction based ba Meenas of

citizenship and causes of action under

Maine law in negligence, strict products

liability and breach of warranty.

Approximately 140 other complaints by

present and former employees of either

Bath Iron Works or Portsmouth Naval

Shipyard, or their widows, were filed in

the same court near the time plaintiff

filed her complaint.

A number of the pretrial

proceedings relating to the complaints

of four of the plaintiffs, all based on

injuries incurred at BIW, were consoli-

dated. In May of 1981, five defendants

moved for summary judgment against those

. four plaintiffs, based on the statute of

limitations, lack of the privity of

contract required under Maine law as a

prerequisite to recovery for pre-1979

negligence or breach of warranty, and

the inapplicability of Maine's strict

liability statute to claims based on

products supplied before the effective

date of the statute, October 3, 1973.

On August 7, 1981, the court granted the

motions with a few minor exceptions.

Plaintiff's claims against three of the

manufacturer defendants, Johns-Manville

Sales Corp., Unarco Industries, Inc.

(Unarco) and Raybestos-Manhattan

(Raybestos) were not disposed of on

summary judgment and were tried

together, beginning on November 2,

1981. Plaintiff and defendant Johns-

Manville settled during the course of

the trial.

At the close of plaintiff's

evidence, defendant Unarco moved for a

directed verdict on plaintiff's strict

liability and breach of warranty

claims. Defendant Raybestos made a

Similar motion at the close of all of

the evidence. As to the breach of

Warranty claim, plaintiff indicated that

she no longer intended to press the

claim. She requested the strict

liability count not be dismissed, but

acknowledged that under Maine law, it

appeared that a claim in strict

liability could not be made based on

products supplied before October 3,

1973. The court granted both motions,

finding insufficient evidence that

either defendant had supplied asbestos

products to BIW subsequent to October 3,

1973 to warrant submitting the strict

liability issue to the jury.

At the close of all of the

evidence, plaintiff moved to strike

defendants’ comparative negligence

defense. Defendants had introduced

evidence that the decedent could have

worn a respirator that would have

reduced his risk of cancer, but that he

had failed to do so. Plaintiff argued,

in support of her motion, that there was

insufficient evidence that plaintiff's

decedent was aware that exposure to

asbestos could cause serious disease;

thus, he could not have been negligent

in failing to wear a respirator. The

court denied the motion.

After five weeks of trial, the jury

returned a verdict in favor of

defendants. The jury found that both

Unarco and Raybestos were guilty of

negligence that proximately 5 ts

Blaine Austin's mesothelioma and death,

but that Austin was contributorily

negligent and that his negligence was

equal to or greater than that of the

defendants. Under Maine's comparative

rmegligence statute, therefore, recovery

was barred. Judgment was entered for

the defendants on December 8, 1981.

On December ll, 1981, plaintiff

filed a motion for a new trial, alleging

that the jury verdict was against the

weight of the evidence. On December 17,

1981, plaintiff filed a motion for

judgment n.o.v., alleging that there was

no evidence that the decedent was

contributorily negligent or, in the

alternative, that the verdict was

against the weight of evidence. The

court denied both motions,

Plaintiff appealed to this court

from the judgment against her and from a4

number of alleged errors in the

proceedings below. After the filing of

that appeal, but before argument,

defendant Unarco filed a voluntary

petition for reorganization under

chapter 1l of the Bankruptcy Reform Act,

ll u.8.C. § 101 et seq., in the United

States Bankruptcy Court for the Northern

District of Illinois, Eastern Division.

Upon notification of that petition, on

August 5, 1982, this court stayed

further proceedings in this appeal

pending a final determination by the °

Bankruptcy Court. On October l, 1982,

the Bankruptcy Court issued an order

authorizing plaintiff to pursue her

appeal in this case against parties

other than Unarco. The court noted that

plaintiff had not sought to have the

Stay lifted against defendant Unarco,

but determined that the automatic stay

provisions of 11 U.S.C. § 362 do not

apply to the bankrupt defendant's

solvent co-defendants. Plaintiff now

seeks to pursue her appeal against

Raybestos alone. Before proceeding to

the merits of this appeal, we address

defendant's contention that plaintiff

wy

ed

[a ' Vs

should not be allowed to proceed against

it alone.

I. Lifting of the Stay

[1] The first issue before us is

whether we should decide the merits of

this appeal. On August 5, 1982, we

Stayed all proceedings in this case,

pending a final determination by the

Illinois Bankruptcy Court of the Chapter

ll bankruptcy proceeding voluntarily

initiated by Unarco, one of the original

co-defendants in this case. Since that

time, the Bankruptcy Court has made

clear its position that the automatic

stay of all proceedings against bankrupt

debtors provided by § 362(a) of the

Bankruptcy Code, 11 U.S C. §362(a),

applies only to the debtor and not to

the debtor's solvent co-defendants. On

the basis of that ruling, the plaintiff

iin

requested and received from the

Bankruptcy Court on October 1, 1982, an

order authorizing her to pursue her

appeal in this court as to parties other

than Unarco. On October 20, 1982,

plaintiff requested this court to lift

its stay of August 5, 1982 and to allow

the appeal to proceed against Raybestos

alone.

Raybestos does not urge that the

Bankruptcy Court was wrong in deciding

that the automatic stay provisions of

11 U.S.C. § 362(a) apply only to the

bankrupt debtor and not its solvent

co-defendants. It argues, instead, that

Unarco is a necessary party and that

particularly because plaintiff made no

effort to have the stay of proceedings

against Unarco lifted, she should not be

nt ha

allowed to proceed against Raybestos

alone.

As an initial matter and because we

expect that the issue will arise again

in this circuit, we express our judgment

that the Bankruptcy Court was correct in

deciding that the automatic stay

provisions of 11 U.S.C. § 362(a) apply

only to the bankrupt debtor. We are

persuaded by the reasoning of the

Illinois Bankruptcy Court in Royal Truck

and Trailer, Inc. v. Armadora Maritima

Salvadorena, s.a. de C.V., 10 B.R. 488

(N.D.I111.1981), and by a comparision of

the stay provisions provided by Congress

for a chapter 13 bankruptcy proceeding,

which expressly include co-defendant

debtors, with those provided for a

chap:er ll bankruptcy proceeding, which

make no mention of co-defendant debtors,

ai De

%

that had Congress intended § 36.(a) to

apply to solvent co-defendants, it would

have said so. See also In re: Related

Asbestos Cases, 23 B.R. 523

(N.D.Cal.1982); Aboussie Bros.

Construction Co. v. United Missouri Bank

of Kirkwood (In re Aboussie Bros.

Construction Co.), 8 B.R. 302

(E.D.Mo.1981). Courts that have come to

a different conclusion do not appear to

have done so on the basis that § 362

requires such a result, but rather that

additional considerations warrant a stay

as to all defendants. See, e.g.,

Federal Life Ins. Co. (Mutual) v. First

Financial Group of Texas, Inc., 3 B.R.

375 (S.D.Tex.1980) (claims too

interwoven to sever, although the

bankruptcy court has authority to lift

the stay as to less than all of the

2i3-

defendants); Rupp v. Cloud Nine Ltd.

(In Re Cloud Nine, Ltd.), 3 B.R. 202

(Bkrtcy.D.N.M.1980) (relief from stay

"will result in at best only a partial

resolution of the issues and at worst

will further complicate the issues and

result in needless relitigation"); In re

White Motor Credit Corp., 11 B.R. 294,

295 (Bkrtcy.N.D.Ohio 1°81) ("for many

reasons (perhaps including section 362

itself), products liability plaintiffs

cannot dismiss a reorganization debtor

and proceed against co-defendants

only"). We agree that there might be

cases in which additional considerations

Warrant a refusal to lift the stay as to

some but not all of the co-defendants;

we disagree only with the assertion that

those considerations should be read into

"yo

§ 362. It is to those additional consid-

erations that we now turn.

[2] Defendant argues that Unarco is a

necessary party to this litigation and

therefore that we should not allow the

appeal to proceed against Raybestos

alone. It urges that we apply standards

analogous to the necessary and

indispensable party criteria of

Fed.R.Civ.P. 19. We agree that despite

the absence of a specific rule of

appellate procedure authorizing the

court to delay review in the absence of

necessary parties, the court has the

power to make such a determination. We

do not agree, however, that this is a

case warranting such delay. Joint tort-

feasors are not considered indispensable

parties under federal law. See, Field

v. Volkswagenwerk AG, 626 F.2d 293, 298

-15-

n. 7 (3d Cir.1980); Jett v. Phillips &

Associates, 439 F.2d 987 (10th

Cir.1971); Herpich v. Wallace, 430 F.2d

792, 817 (Sth Cir.1970). The plaintiff

will not be afforded incomplete relief.

If she prevails on appeal and is

entitled to a new trial on any of the

issues she raises, she will be able to

assert her full claim against Raybestos,

leaving Raybestos to proceed against

Unarco for contribution. Whatever

prejudice results to Raybestos from

being forced to proceed without Unarco

is simply that inherent in the principle

of joint and several liability.

Even absent a determination that

Unarco is an indispensable party, we

could stay the proceedings in the

interest of judicial economy and

fairness to the parties. The Supreme

-16-

-

y

7

‘ve

Court has indicated, however, that to be

entitled to a stay, a party must demon-

Strate a clear case of hardship if there

is a danger that the stay will damage

the other party. Landis v. North

America Co., 299 U.S. 248, 255, 57 §.Ct.

163, 166, 81 L.Ed. 153 (1936); Dellinger

vs. Mitchell, 442 F.2d 782, 786-88

(D.C.Cir.1971). In this case, the

damage to the plaintiff would be the

financial hardship of being forced to

wait for an undefined but potentially

lengthy period before receiving the

money to which she may be entitled. An

additional consideration is that this is

only one of a number of similar cases

that have been and will be brought in

the federal courts. In a number of

those cases, plaintiffs and crucial

witnesses are dying. We are not

persuaded that

alte

the hardship to defendants of having to

go forward on this appeal without

Unarco, or the interests of judicial

economy in avoiding relitigation of the

issues, are strong enough to justify

forcing plaintiff and a number of other

plaintiffs to wait until bankrupt

defendants are successfully reorganized

in order to be able to pursue their

Claims. We proceed, therefore, to the

merits.

II. Refusal to Apply Admiralty Law

Plaintiff's first claim of error

below is that the trial judge refused to

accept the applicability of admiralty

law to her claims against the defendant

manufacturers. The error was

particularly harmful, according to

plaintiff, because it resulted in

application of Maine's comparative

atin

negligence statute, pursuant to which

the jury found the decedent at least 50

per cent responsible for his own

injuries and thus denied recovery.

Under admiralty law, plaintiff claims,

she would not have been denied all

recovery on a negligence claim unless

her husband was 100 per cent responsible

for his own injuries and under a strict

liability claim unless the jury found

that he knowingly and unreasonably

assumed the risk of his own injuries.

A. Procedural Bar

[3,4] A threshold question is

whether, as defendant urges, plaintiff

is barred from raising the issue of

admiralty lawtbecause of the lateness

>

1. In the memorandum accompanying her

motion to amend, plaintiff used "“admir-

alty law" and “admiralty jurisdiction"

interchangeably. She expressly noted,

“On

of her motion to amend. A recitation of

relevant events is necessary for an

however, that "[b]y arguing for a

determination that admiralty law

applies, plaintiff by no means intends

to waive [her] right to a jury trial.

Since there is also diversity

jurisdiction, plaintiff is entitled to a

trial by jury. Romero v. International

Terminal Operating co., 356 U.S. 354, 79

S.ct. 466, 3 L.Ed.2d 769 (1959)." [It

appears, therefore, that what plaintiff

wanted was to have admiralty law control

her action which was properly before the

court as a suit based on diversity juris-

diction.

Executive Jet set out a test for

the invocation of admiralty

jurisdiction, rather than for the

application of admiralty law. Never-

theless, for our purposes, it appears

that the tests are the same, since, in

general "[o]nce admiralty jurisdiction

is established, then all of the

substantive rules and precepts peculiar

to the law of the sea become applicable."

Brance v. Shumann, 445 F.2d 175, 178

(5th Cir.1971). This is true even when

the plaintiff decides to pursue her

claim in the civil side of a federal

court or in a state court. See Pope &

Talbot, Inc. v. Hawn, 346 U.S. 406,

409-11, 74 S.Ct. 202, 204-06, 98 L.Ed.

143 (1953); Chelentis v. Luckenback S.S.

Co., 247 U.S. 372, 38 S.Ct. 501, 62

-20-

understanding of why we have decided to

address the merits of the admiralty law

issue.

Plaintiff filed her complaint in

June of 1978, alleging diversity of

L.Ed. 1171 (1918); G. Gilmore & C.

Black, The Law of Admiralty § 6-5 at 279

(2d ed. 1975).

The Supreme Court has recognized

that the states do not lose all concern

for their land-based workers, even

though their injuries may be considered

maritime. See Kossick v. United Fruit

Co., 365 U.S. 731, ’ S.Ct. ’

892, 6 L.Ed.2d 56 (1961). Thus,

admiralty sometimes borrows or draws on

state law in deciding issues in which

the state has a strong interest. See,

e.g., In re Dearborn Marine Service

Inc., 499 F.2d 263, ye 27 (5th Cais.

), and cases cited therein. While

state law may supplement admiralty law,

however, it may not flatly contradict it

and is generally referred to only when

it affords greater protection to

maritime employees than that afforded by

admiralty law. See Pope & Talbot, Inc.

Supra, 346 U.S. at 409-10, 74 S.Ct. at

204-05; Gilmore & Black, supra, § 1-17

at 49.

aatn

citizenship and basing her claims on

Maine's Wrongful Death and Survival

Statutes. On August 10, 1981, the court

set the trial date for October 19, 198l,

discovery to be completed by October l,

1981. On September 30, 1981, the trial

date was moved back to November 2, 1981,

the jury to be impaneled on October 19.

Plaintiff's first formal motion to amend

her complaint to allege admiralty law

was made on October 9, 1981. On the

same day, the trial judge held a

pretrial conference at which he consid-

ered and denied plaintiff's motion to

amend. In his report of the pretrial

conference he noted defendant's

objections to the motion: “that [it]

had received insufficient notice to be

prepared to brief and argue the merits

of the jurisdictional question and that

=22u

the motion was not timely filed inasmuch

as the action has been pending in this

Court since June 1978, that all counsel

have prepared for trial of the action as

a diversity action in which Maine law

would apply, and the action has been

assigned for trial commencing on Monday,

November 2, the jury to be impaneled on

Monday, October 19." He noted that

"{a]fter hearing counsel, over objection

of plaintiff, the court denied

plaintiff's motion. The court endorsed

its action on the original motion."

Fed.R.Civ.P. 15(a) provides that

"leave [to amend] shall be freely given

when justice so requires." The Supreme

Court has emphasized that the motion to

amend ordinariiy should not be denied

"[iJnm the absence of any apparent or

declared reason - such as undue delay,

=23=

bad faith or dilatory motive on the part

of the movant, repeated failure to cure

deficiencies by amendments previously

allowed, undue prejudice to the opposing

party by virtue of allowance of the

amendment, [or] futility of amendment.”

Foman v. Davis, 371 U.S. 178, 182, 83

S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

Defendant urges that we read the trial

judge's report of the pretrial

proceedings as an implicit acceptance of

its arguments that a granting of the

motion to amend would unduly prejudice

it. Were these events all that had

occurred, we would be inclined to agree

that the recitation of the defendant's

arguments is, if not a declared, at

least an apparent and justifiable reason

for denial of the motion. Defendant

insists that, in addition to the delay

-24-

and expense that would be required to

brief the admiralty law issue, some of

the discovery already completed by it

would have had to be duplicated, because

admiralty law does not have Maine's

$10,000 ceiling on damages recoverable

for loss of consortium. In addition,

much of defendant's trial preparation

based on Maine law would have had to be

discarded and a last ditch effort made

to prepare for trial on the liability

and damages standards applicable under

admiralty law.

Plaintiff, however, insists that

the October motion to amend cannot be

taken in isolation. She points to the

facts that she had made an earlier,

unsuccessful effort, in June of 1981, to

allege admiralty law and the trial judge

made a substantive ruling that admiralty

ata

law did not apply to her claims. Thus,

she argues, it would have been fruitless

for her to move to amend her complaint

prior to October when the law on which

the judge relied in denying her earlier

request was changed; she should not be

penalized for the lateness of her

motion; and any threat of prejudice to

the defendant could have been relieved

by a granting of the motion for a contin-

uance which she made shortly after her

motion to amend.

The manner in which the issue of

admiralty law was earlier raised is as

follows. A number of defendants in the

consolidated asbestos actions, but not

including the defendants here, had moved

for summary judgment against the four

plaintiffs whose cases had been

consolidated for pretrial proceedings.

o26=

he

The motions for summary judgment were

based, among other things, on the lack

of the privity of contract required

under Maine law for claims based on

negligence, breach of warranty and

2 In their

Strict liability.

consolidated response to the motions for

summary judgment, plaintiffs contended

that the actions were governed by

admiralty law and therefore not barred

by a requirement of privity of

contract. They noted that they would

amend their complaints to allege admir-

alty jurisdiction should the Court

sustain their contention. The court

rejected plaintiffs' contention as to

admiralty law and with certain

2. For further discussion of the

privity requirement for a claim based on

Maine's strict liability statute see

Section IIIA, infra.

=|

Sn

exceptions not significant here, granted

the motions for summary judgment,

Defendant understandably argues

that this procedural history should not

be considered because it was not a party

technically involved in the motions for

summary judgment. But the circumstances

of this massive litigation, and of the

court's ruling on plaintiff's request,

cast doubt on the propriety of such a

narrow interpretation. In his August 7,

1981 ruling on the motions for summary

judgment, the trial judge noted that the

motions were by five defendants against

four of approximately 140 plaintiffs who

had filed actions against various

asbestos manufacturers and suppliers.

Actions against a number of defendants

were generally combined in the numerous

pretrial proceedings held by the court.

=2$=

In fact, although not a party to the

motions for summary judgment that

prompted plaintiff's first request that

the judge find admiralty law

controlling, counsel for defendant

Raybestos was present at the hearing

held on the admiralty issue and

participated in a colloquy with the

judge on the merits of plaintiff's

request. In addition, in ruling on the

issue, the judge made a substantive

determination which could reasonably

have been interpreted by plaintiff as

applying to all of the claims by

plaintiff against the defendant asbestos

suppliers and manufacturers, not just to

the parties to the motion for summary

judgment. The judge held that:

"“Pederal admiralty law does not

govern these actions. In the first

place, plaintiffs in their

complaints have not invoked

-25-

admiralty jurisdiction under 28

U.S.C. § 1333(1), nor have they met

the procedural requirements of

Fed.R.Civ.P. 9(h). In any event,

the product liability tort claims

asserted by plaintiffs in these

cases - the failure to warn of the

dangers of asbestos - bear no

‘significant relationship’ to

‘traditional maritime activity

involving navigation and commerce

on navigable waters,' a prerequi-

site to the maritime tort juris-

diction of the federal courts.

Executive Jet Aviation, Inc. v.

40 ty of Cleveland, 409 U.S. 249 [93

CE. L. Ed. 2d 454) (1972).

poe Baile v. Johns-Manville

Manville) Corp., 1978 A.M.c. 1460

aville] Cory :

E.D.Va.

On October 5, 1981, the United

States Court of Appeals for the Fourth

Circuit ruled, in White v.

Johns-Manville Corp., 662 F.2d 234 (4th

Cir.1981), that federal admiralty law

did apply to a claim by shipyard

employees against manufacturers of

asbestos products. Taking that case,

justifiably, as a discrediting of Bailey

v. Johns-Manville Corp., 1978 A.M.C.

-30-

1460 (E.D.Va.1978), on which the court

had relied, the plaintiff moved to amend

her complaint. The court denied the

motions, noting that it “endorsed its

action on the original motion.”

The fact that the court had made,

3

at least in part,” a substantive

3. The court's other concern, that

plaintiffs had not invoked admiraity

jurisdiction under 28 U.S.C. § 1333(1),

nor had they met the procedural

requirements of Fed.R.Civ.P. 9(h), was

misplaced. A plaintiff may plead only

diversity jurisdiction but also allege

that admiralty law governs. See

Atlantic & Gulf Stevedores, Inc. Vv.

Ellerman Lines, Ltd., 309 U.S. 355,

355" 60, 62 S.Ct. 100, 783-84, 7 L.Ed.2d

798 (1962); Pope & Talbot Inc. Vv. Hawn,

346 U.S. 406, Sao- any 16 BUees Oe;

204-06, 98 L.Ed. 143 (1953); Edynak v.

Atlantic ee Inc. CIE Chambon, 562

F. ’ n. Cir. ; 7A J.

Moore, Moore's Federal Practice par. .53

[2]-(3] at 389; id., par. .59[3] at 418.

See also note l, supra. The court's

Tuling also probably accounts for the

fact that in her October 9, 1981 motion

to amend, plaintiff pleaded admiralty

jurisdiction pursuant to 28 U.S.C. §

1333(1); 46 U.S.C. § 740 and

~Zie

determination on the merits of the

admiralty issue puts plaintiff ina

somewhat stronger position than had her

motion simply been denied. Although the

court was certainly not bound to accept

the reasoning of the Court of Appeals

for the Fourth Circuit, we are inclined

to agree with plaintiff that prior to

White there would have been little point

in attempting to amend her complaint

against the defendant whose case is at

issue here. In addition, had her June

request to amend been granted, she would

no doubt have alleged that admiralty law

governed all of her claims, including

those against defendant here.

Fed.R.Civ.P. 9(h). Contrary to the

suggestion of defendant, it is clear

from her accompanying memorandum that

she did not intend, by invoking Fed.R.

Civ. P. 9(h), to deprive defendant of a

jury trial.

-32-

Thus, we feel constrained to judge the

propriety of the denial of the motion to

amend as of June when she first

requested it.

As of June, defendant's claim of

eleventh hour prejudice has much less

merit. Discovery had not been completed

and it would have had adequate time to

prepare for trial on the basis of

admiralty law. Nor did the court rely

on prejudice in denying the plaintiff's

request. It apparently determined,

instead, that the requested amendment

would have been futile. While we agree

that futility may be a proper reason for

denying a motion to amend, see Foman,

supra, 371 U.S. at 182, 83 S.Ct. at 230,

we do not think that it was a valid one

in this case. To explain why, we, like

the trial judge, must reach the merits

o33«

of the admiralty jurisdiction issue.

B. Merits of the Admiralty Juris-

diction Issue.

{5] In Executive Jet Aviation v.

City of Cleveland, 409 U.S. 249, 93

S.Ct. 493, 34 L.Ed.2d 454 (1972), the

Supreme Court rejected the traditional

"strict locality” test for admiralty

tort jurisdiction and required also that

"the wrong bear a significant relation-

ship to traditional maritime activity.”

Id. at 268, 93 S.Ct. at 504. While it

appears that the injury must generally

still occur on navigable waters, the

claim here clearly meets the locality

prong of the Executive Jet test. The

ships on which the plaintiff worked and

where he was injured were situated in

navigable waters - in the Kennebec

River. The only issue, therefore, is

whether the wrong bears a significant

a3G~

relationship to traditional maritime

activity.

In addressing this question, we

note that there is already some

disagreement among the circuits both as

to the proper analysis and as to the

ultimate resolution of the issue. See

Keene Corp. v. United States, 700 F.2d

836 (2d Cir.1983) (admiralty juris-

diction not proper over indemnity suit

by asbestos manufacturer against the

government for, inter alia, designing

and specifying asbestos insulation

products and failing to inspect the

workplaces); Owens-Illinois, Inc. v.

United States District Court for the

Western District of Washington, 698 F.2d

967 (9th Cir.1983) (admiralty jurisdic-

tion not proper over claim by shipyard

worker against asbestos manufacturer);

-35-

White v. Johns-Manville Corp., §62 F.2d

234 (4th Cir.1981) (admiralty jurisdic-

tion proper over claim by shipyard

worker against asbestos manufacturer).

For reasons set out below, we disagree,

in part, with the analysis of all three

courts, but we are persuaded that the

result reached by the Second and Ninth

Circuits is sound.

The issue that appears to be

creating the most confusion in this

Situation is whether Executive Jet

requires that there be some maritime

flavor to the manufacture or supply of

the offending asbestos product. The

Second Circuit, in Keene Corp., supra,

at 844, focused on two critical elements

in determining that the acts and

omissions alleged were not sufficiently

related to traditional maritime activity:

-36-

"First, Keene does not allege that

its insulation was designed

specifically for maritime use....

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

work place, its obligations as a

promulgator of health regulations -

do not bear a significant relation-

ship to traditional maritime

activities such as ‘navigation and

commerce.'*

Similarly, The Fourth Circuit, in White

v. Johns-Manville, 662 F.2d 234 (4th

Cir.1981), found admiralty jurisdiction

proper, but limited its holding to

Situations where "the materials used by

the shipyard workers were designed,

advertised, and marketed as maritime

asbestos products." 662 F.2d at 240.

Our reluctance to require that

tthere be some independent connection

between the manufacture of the product

ita

and traditional maritime activity stems

from the fact that in other contexts,

where, for instance, a defective product

causes a ship to sink, courts have

extended admiralty jurisdiction to

manufacturers regardless of their intent

or knowledge that their product would be

used on a ship. In Sperry Rand Corp. v.

RCA, 618 F.2d 319 (5th Cir.1980), the

court found admiralty jurisdiction

proper over the manufacturer of a

component part of a marine gyro-pilot

steering system, even though the part

was not specifically manufactured for

marine use. The court reasoned that it

made little sense to extend admiralty

jurisdiction over the injured party's

claim against the steering system manu-

facturer, but not over the steering

system manufacturer's claim for contri-

=33e

bution from the manufacturer of the

component part. Similarly, in Jones v.

Bender Welding & Mach. Works, Inc., 58l

F.2d 1331 (9th Cir. iy/5), tne coure

upheld admiralty jurisdiction over the

claim of a vessel owner against a manu-

facturer of engines, even though it was

another defendant who adapted the engine

for maritime use. See also In re Queeny/

Corinthos, 503 F.Supp. 361, 363 (E.D.Pa.

1980), where the court asserted

admiralty jurisdiction over a products

liability cross-claim by a vessel owner

against manufacturers of component parts

of the ship's engine, giving no

indication of whether those parts were

designed for maritime use. The court

emphasized the importance of having

"power to adjudicate all of the demands

made and arising out of the same

-39-

disaster." Most recently, the Fifth

Circuit has applied similar reasoning to

find admiralty jurisdiction proper ina

products liability suit arising from the

crash of a seaplane, despite the lack of

maritime flavor to the alleged defective

design of the aircraft. As the court

noted,

"There are ... patent difficulties

in determining what kinds of

‘wrong’ are related to traditional

maritime activities. If we define

the ‘wrong’ as the negligent act,

then it is difficult to see how

defects in the design of an

aircraft, faults in its manufac-

ture or maintenance, or pilot error

are maritime. Yet we, as well as

other courts, have asserted

admiralty jurisdiction over such

claims. Those who advocate a

‘relationship of the wrong’ test

really look not to the kind of

wrong but to the nature of the

activity in which the victim and

his aircraft are engaged.

In products liability cases ...

[t]he place where the negligence or

wrongful act occurs is not decisive.

-40-

The place injury occurs and the

function the injured person was

performing at the time are more

Significant." Smith v. Pan Air

Corp., 684 F.2d 1102, 1107, i1Til

5th Cir.1980) (citations omitted).

We think the approach of these

courts is sound. If products liability

claims are to be heard in admiralty, and

it seems clear that they are, see Smith

Vv. Pan Air Corp., supra, 684 F.2d at

1lll n. 33 and cases cited therein; see

also Simpson Timber Co. v. Parks, 369

F.2d 324 (9th Cir.1966), vacated and

remandec, 388 U.S. 459, 87 S.Ct. 2115,

18 L.Ed.2d 1319 (1967), on remand, 390

F.2d 353 (9th Cir.1968) (implicit

Supreme Court approval of admiralty's

acceptance of land based products

liability law), then whatever advantage

accrues from a uniform national] law

governing those cases would be severely

undercut by distinguishing between

a4l-

manufacturers according to whether they

designed or intended their products for

maritime use.

For similar reasons, we find

misplaced any reliance on whether the

contract between the manufacturer and

Shipbuilder was for ship construction,

which is non-maritime, or for ship

repair, which is maritime. Determining

what would be the nature of a cor*zact

dispute between Bath Iron Works and

Raybestos sheds little light on the

nature of this products liability

4

claim. Several courts apparently

4. We agree that the traditional

admiralty distinction between ship

building and ship repair may shed light

on the nature of the injured worker's

activity and thus be relevant to the

inquiry required by Executive Jet. See

note 5, infra. Our concern here is with

a Gistinction based on the nature of the

manufacturer's activity.

-42-

agree. See, e.g., JIG the Third Corp.

v. Puritan Marine Ins. Corp., 519 F.2d

171, 174 (5th Cir.1975) ("When an ocean-

going shrimpboat sinks in 15 fathoms of

water in the Gulf of Mexico and the

Sinking is allegedly tortious, there is

Maritime activity, and the tort, if

recognized by the law, is maritime in

nature.... This would be true even

though the conduct complained of may

have been negligent construction or

defective design and may have occurred

ashore.") Watz v. Zapata Off-Shore Co.,

431 F.2d 100, 112-14 (5th Cir.1970);

Sears, Roebuck & Co. v. American

President Lines, Ltd., 345 F.Supp. 395,

402 (N.D.Cal.1971); Taisho Fire & Marine

v. Vessel Montana, 335 F.Supp. 1238,

1239 (N.D.Cal. 1971); In re Alamo

Transp. Co., 320 F.Supp. 631, 634 (S.D.

Tex. 1970).

~43«

Concluding, therefore, that it is

not fatal to plaintiff's allegation of

admiralty jurisdiction that hers is a

products liability claim against a manu-

facturer with no independent connection

to maritime activity, we turn to

plaintiff's decedent's activity.

Defendant concedes that if the

asbestos products had caused a ship to

sink, or had caused injury to a

crewmember or passenger, admiralty juris-

diction would be proper. It argues,

however, that the decedent's work was

not significantly related to traditional

maritime activity involving navigation

and commerce, as required by the Court

in Executive Jet, that injuries to

shipyard workers are not a traditional

concern of admiralty law; and that the

policy justifications for a uniform

-44-

ast

maritime law do not support admiralty

jurisdiction in this case. After much

reflection, we agree,

The Court in Executive Jet empha-

sized the traditional concerns and

expertise of admiralty courts:

The law of admiralty has evolved

over many centuries, designed and

molded to handle problems of

vessels relegated to ply the water-

ways of the world, beyond whose

shores they cannot go. That law

deals with navigational rules -

rules that govern the manner and

direction those vessels may rightly

move upon the waters. When a

collision occurs or a ship founders

at sea, the law of admiralty looks

to those rules to determine fault,

liability, and all other questions

that may arise from such a catastro-

phe. Through long experience, the

law of the sea knows how to

determine whether a particular ship

is seaworthy, and it knows the

nature of maintenance and cure. It

is concerned with maritime liens,

the general average, captures and

prizes, limitation of liability,

cargo damage, and claims for

Salvage." 409 U.S. at 270, 93

S.Ct. at 505.

~~

Included within those traditional

concerns of admiralty are the care and

safety of those exposed to the hazards

of maritime service. One of the justif-

ications the Executive Jet Court

discussed for abandoning the "strict

liability" rule for maritime torts is

the number of times the courts and

Congress have had to create exceptions

to the rule, particularly in cases of

personal injury, where the tort had no

maritime locality, but did bear a

relationship to "maritime service,

commerce, or navigation." 409 U.S. at

259, 93 S.Ct. at 500 (emphasis added).

As examples, the Court cited the

application of the Jones Act to injuries

to a seaman on land, because of the

seaman's connection with maritime

commerce, see O'Donnell v. Great Lakes

-46-

Dredge & Dock Co., 318 U.S. 36, 43, 63

S.Ct. 488, 492, 87 L.Ed. 596 (1943), and

the extension of the doctrine of unsea-

worthiness to cover injuries sustained

on land by a seaman or a longshoreman,

see Gutierrez v. Waterman S.S. Corp.,

373 U.S. 206, 83 §.Ct. 1185, 10 L.Bd.2d

297 (1963). The court also cited

Atlantic Transport Co. v. Imbrovek, 234

U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208

(1914), as a case in which the claim had

a sufficiently close relationship to

traditional maritime activity.

{6] In Atlantic Transport Co., the

Court upheld admiralty jurisdiction over

a stevedore's negligence claim against

his employer. The Court cited the

locality rule, but then went on to say

that:

"Even if it be assumed that the

requirement as to locality in tort

=6 Te

cases, while indispensable, is not

necessarily exclusive, still in the

present case the wrong which was

the subject of the suit was, we

think, of a maritime nature....

The libelant was injured ona

Ship, lying in navigable waters,

and while he was engaged in the per-

formance of a maritime service. We

entertain no doubt that the service

in loading and stowing a ship's

cargo is of this character. Upon

its proper performance depend in

large measure the safe carrying of

the cargo and the safety of the

Ship itself; and it is a service

absolutely necessary to enable the

Ship to discharge its maritime

duty. Formerly the work was done

by the ship's crew; but, owing to

the exigencies of increasing

commerce and the demand for

rapidity and special skill, it has

become a specialized service

devolving upon a class ‘as clearly

identified with maritime affairs as

are the mariners.'" Id. at 61-62,

34 S.Ct. at 735 (citations omitted).

Thus, it appears 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

-48-

be proper. The remaining issue,

however, is whether plaintiff's decedent

should be considered to have been

performing traditional maritime service

when he was injuried. On that question,

we find helpful the Supreme Court's

decisions regarding which workers should

be entitled to the special admiralty-

confined warranty of seaworthiness and

for what sorts of injuries.

The justification for admiralty's

special no-fault protection for maritime

injuries is that:

"Seamen are the wards of admiralty,

and the policy of the maritime law

has ever been to see that they are

accorded proper protection by the

vessels on which they serve....

[Thus] the owners owe[] to the

seamen the duty of furnishing a

seaworthy vessel and safe and

proper appliances in good order and

condition; and ... for failure to

discharge such duty there [is]

liability on the part of the vessel

and her owners to a seaman

suffering injury as a result

-49-

thereof." The State of Maryland,

85 F.2d 944, 945, 4th Cir.1936,

quoted in Seas Shipping Co. v.

Sieracki, 328 U.S. 85, 91-92 n. 9,

66 S.ct. 872, 875-876 n. 9, 90

L.Ed. 1099 (1946).

[7] Two observations may be made

about the application of this policy.

The first is that unseaworthiness can

arise not only from something as

nautical as a faulty anchor windlass but

from something as unmaritime as the

presence on a ship of a hazardous

chemical. See, e.g., Smith vs. Ithaco

Corp., 612 F.2d 215 (Sth Cir.19680)

(unseaworthiness claim based on seaman's

exposure to benzene fumes escaping from

the ship's storage tanks); Martinez v.

Dixie Carriers, Inc., 529 F.2d 457 (5th

Cir.1976) (unseaworthiness claim based

on exposure to noxious fumes escaping

from the chemical tank of a barge.).

@$8-

' [8] A second, and perhaps more

immediately pertinent observation is

that the policy protects not only seamen

but, by judicially created extension,

those who are serving the same functions

as seamen would serve; otherwise a

vessel owner might be able to frustrate

tne policy by subcontracting chunks of a

seaman's job to others. But the limits

of the extension are narrowly circum-

scribed.

[9] The seaworthiness remedy has

been extended to some harbor workers,

see Seas Shipping Co. v. Sieracki, 328

U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099

(1946); Pope & Talbort, Inc. v. Hawn,

346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143

(1953), but only if those harbor workers

were injured while doing work

traditionally done by members of the

-5l-

crew and thus, presumably, subject to

many of the same hazards as seamen, see

United New York and New Jersey Sandy

Hooks Pilots Ass'n v. Halecki, 358 U.S.

613, 79 S.Ct. 517, 3 L.Ed.2d 541

(1959). See also West v. United States,

361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d

161 (1959) (focus should be upon the

Status of the ship, the pattern of the

repairs, and the extensive nature of the

work contracted to be done); Waganer v.

Sea-Land Service, Inc., 486 F.2d 955,

958 (5th Cir.1973) (two-fold requirement

for unseaworthiness recovery: "(i) the

Ship in question must have been in

navigational status, and not ‘dead',

which in turn depends upon whether the

contracted work is minor or major, and

who has custody and control of the ship

while the work is being done; and (ii)

-52-

the pattern of repair must reflect work

traditionally and ordinarily done by

seamen, excluding persons performing

such tasks as making major repairs

requiring drydocking or special skills").

The distinctions drawn in the sea-

worthiness context, according to the

work performed by the injured party and

the hazards encountered by him, counsel

against admiralty jurisdiction in this

case. Under the tests set out above,

plaintiff's decedent would plainly be

excluded. The ships on which ha. wetens

were out of navigation and the work was

major, requiring special equipment and

skills.” It was not work

5. The Ninth Circuit has reached a

similar conclusion by focusing on the

Ship repair/ship construction

distinction used to determine whether a

contract dispute is in admiralty or at

law. See Owens-Illinois, supra, at 970;

o§3-

traditionally done by members of the

see also Hollister v. Luke Construction

Co., 517 F.2d 920, 921 (5th Cir.1975)

ecause a contract to build a ship is

non-maritime, an injury to a welder

during the course of that construction

lacks maritime flavor). While we agree

that the contract cases are relevant and

that the Supreme Court has in the past

relied on them to distinguish between

workers whose connection to maritime

activity was too tenuous to warrant dis-

placing state law, see Grant Smith

Porter Co. v. Rohde, 257 U.S. 469, 42

S.Ct. 157, 66 L.Ed. 321 (1922), reliance

on them, rather than on the work

actually performed by the injured party

may lead to arbitrary distinctions. See

Halecki, supra, 358 U.S. at 617-18, 79

§.Ct. at 9 ("It avails nothing to say

that the decedent was an ‘electrician’

and that many modern ships carry

electricians in their crew. Pope &

Talbot v. Hawn explicitly teaches that

such labels in this domain are

meaningless.... It is scarcely more

helpful to indulge in the euphemism that

the decedent was ‘cleaning’ part of the

ship, and to say that it is a

traditional duty of seamen to keep their

Ship clean. The basic fact is ... that

the decedent ‘was not doing what any

crew member had ever done on this ship

Or anywhere else in the world so far as

we are informed.'"). We note, for

instance, that in this case, plaintiff's

decedent did some "repair" work.

=v

crew. More important, if the reason for

admiralty's special concern for the care

and safety of seamen is that they are

exposed to the peculiar hazards of the

sea and a vessel's equipment, then the

dangers faced by a shipyard worker

installing asbestos insulation are

scarcely traditional concerns of ad-

miralty or is there any reason to expect

an admiralty court to possess expertise

in addressing those dangers.

Our judgment is reinforced by other

concerns expressed by the Supreme Court

in cases defining the reach of admiralty

jurisdiction. Both in Executive Jet

and, more recently, in Foremost

Insurance Co. v. Richardson,

U.S. , 102 S.Ct. 2654, 73 L.Ed.2d

300 (U.S.1982), the Court emphasized the

need for uniform rules as a major factor

i5-

in determining whether admiralty

jurisdiction should extend to a

particular dispute. In contrast to the

problems of choice of forum, choice of

law and conflicting rules of navigation

foreseen in those cases, we see no

Similar burdens on the administration of

justice or on the flow of maritime

commerce that will result from a denial

of admiralty jurisdiction in this case.

The only inconsistency that will result

is that some harbor workers - those

injured while doing the work of seamen -

may be able to recover in admiralty for

their injuries while others will be left

to the remedies provided by state law.

We acknowledge that Congress, in

enacting and expanding the reach of the

Longshoremen's and Harbor Workers' Com-

pensation Act (LHWCA), 33 U.S.C.

Ge

§ 902(3), has provided a uniform compen-

Sation remedy for all harbor workers,

regardless of whether, under the Supreme

Court's test, they would have been

considered to have been doing the work

of seamen. We also acknowledge that the

broad reach of that statute reflects in

part a solution to the confusion that

resulted from trying to distinguish

between harbor workers for application

of state or federal compensation

remedies. See Calbeck v. Travelers Ins.

Co., 370 U.S. 114, 82 S.Ct. 1196, 8

L.Ed.2d 368 (1962). It may be that

Congress will make a similar determin-

ation to extend admiralty tort juris-

diction to all harbor workers,

regardless of their specific activity.

At this point, however, we are guided by

the fact that Congress has not swept so

-57-

broadly. In addition to their compen-

sation remedy, harbor workers are

entitled, under section 905(b) of the

LHWCA, 33 U.S.C. § 905(b), to recover

against the vessel and vessel owner for

negligence. In this case, however,

plaintiff asserts no claim directly

against a vessel owner, nor is there any

assertion that the vessel owner was

negligent. Moreover, the risk encoun-

tered by plaintiff's decedent is not a

risk, arising from the loading or

operation of a vessel, against which

those on the vessel are typically

protected by the vessel owner. It is,

rather, the same risk as that encoun-

tered by a number of workers on a

shoreside construction project.

Whatever anomalous results may

follow from distinguishing between

-58-

harbor workers according to the naritine

nature of the hazards they encounter are

at least offset, if not outweighed, by

the anomalous results of treating

construction workers injured by asbestos

poisoning differently depending on

whether they were installing asbestos in

a ship or in an office building over-

looking the harbor. The state has an

interest in providing uniform treatment

to these two like workers. We are,

therefore, guided by the insistence of

the Court in Victory Carriers, Inc. v.

Law, 404 U.S. 202, 212, 92 S.Ct. 418,

425, 30 L.Ed.2d 383 (1971), that courts

of admiralty not intrude without

specific Congressional authorization

into an area in which the state has an

interest and that otherwise would be

governed by state law. In a context

=§ 9a

similar to ours, the Court recognized

the state's interest in the care of

harbor workers and the availability of

state laws to provide compensation for

their injuries. The Court noted that:

"Perhaps such laws provide inade-

quate benefits, but we are poorly

positioned to conclude that they do

or for that reason to give special

remedies to longshoremen when other

employees operating forklifts for

other employers in perhaps equally

hazardous circumstances are left to

the mercies of state law. Claims

like these are best presented in

the legislative forum, not here.”

Id. at 215-16, 92 S.Ct. at 426-27.

We conclude that the district court

correctly held that plaintiff's claim

was not cognizable in admiralty. We

acknowledge that, because of the

importance we assign to the activity of

the person suffering tortious injury,

distinguishing between activities that

are maritime and those that are not

approaches medieval nicety. In this

-60~

case, however, the conclusion that

decedent's activity was not “tradi-

tionally maritime" is indicated by a

congeries of factors - the vessel,

whether under construction or laid up

for repairs, was passive and temporarily

incapable of acting as such; the work

being done was a major project involving

specialized tools and skills, both in

kind and magnitude far beyond that

traditionally done by a ship's crew; and

the hazards exposed could not be said to

be peculiar to maritime navigation.

Moreover, no recognized policy objective

of avoiding onerous burdens on maritime

traffic through a uniform rule is

discernible. Nor does the legislative

provision of coverage through the LHWCA

Supply an affirmative thrust for a

judicial weakening of Executive Jet's

-6l-

requirement of “traditional maritime

activity." Additionally, any anomalous

results from differentiating between

land based harbor workers on the basis

of their activity at the time of their

injury are more than balanced by the

asymmetries which would result from a

decision applying state or admiralty law

to an artisan depending on whether his

workplace was supported by land or

navigable water. Finally, the demands

of federalism are well served by

declining to intrude unnecessarily into

an area in which the state has an

interest and over which state law is

capable of exercising control.

III. Dismissal of Strict

Liability Count

A. Change in State Law

In addition to challenging the

-62-

trial court's refusal to apply admiralty

law to her claims, plaintiff urges that

the court erred in dismissing her strict

liability count based on Maine law. At

the close of all of the evidence,

defendant Raybestos moved to dismiss

count two of plaintiff's complaint,

which alleged a cause of action in

Strict products liability under Maine

law. The court granted the motion,

citing lack of evidence that plaintiff's

decedent's death could have been caused

by exposure to asbestos products

supplied by Raybestos to Bath Iron Works

subsequent to October 3, 1973, the

effective date of the Maine Strict

Products Liability Statute.

The court assumed that the law of

Maine was clear that a claim of strict

liability could be asserted only with

a$ 30

respect to a product sold after

October 3, 1973. In its August 7, 1981

ruling, the court had granted summary

judgment on the strict liability count

to all of the moving defendants who had

not supplied asbestos products after

October 3, 1973. The court had relied

on Burke v. Hamilton Beach Division, 424

A.2d 145, 148 (Me.1981), in which

Maine's Supreme Ju@icial Court said that

in light of clear legislative intent

that none of Maine's recently enacted

products liability statutes have

retrospective effect "we are compelled

to hold that U.C.C. section 2-318 and

sections 161 and 221 of title 14 [the

Strict liability statute] do not apply

to claims where any of the operative

events, whether they are sales trans-

actions or tort events, have occurred

ie

before the effective dates of the

respective statutes."

In colloquy with counsel for

Raybestos' co-defendant, Unarco,

concerning Unarco's request for a

6 the court

directed verdict,

acknowledged that “your position is that

you are entitled to a directed

6. Unarco moved for a directed verdict

on the strict liability count at the

close of the plaintiff's evidence. By

agreement of counsel, Raybestos reserved

its motion until the close of all of the

evidence since a portion of plaintiff's

evidence against Raybestos was intro-

duced after plaintiff rested to accomo-

date a Raybestos witness. It is clear

from the record that at the time of

Raybestos' motion, both the court and

the parties maintained the same

assumptions as to the limitation of

Maine's strict liability statute to

products supplied after the effective

date of the statute. Plaintiff's ob-

jection to Raybestos' motion was based

on what it considered to be sufficient

evidence that Raybestos had supplied

asbestos products to Bath Iron Works

after October 3, 1973.

{oe

verdict from the strict liability count

inasmuch as Maine did not recognize the

Strict liability until October 3, 1973.

And Burke and Hurd [v. Hurd, 423 A.2d

960 (Me.1981)] make clear that statute

is not to be retroactively applied." In

response to that colloquy, plaintiff's

counsel agreed that "“[u]nder the present

state of the Maine law we don't believe

that we'd have any appropriate response

to [Unarco counsel's] position that he's

taken on the strict liability...."

After the trial in this case, the

Maine Supreme Judicial Court decided

Adams v. Buffalo Forge, 443 A.2d 932

(Me.1982). The court held that strict

liability applies to all injuries

occurring after the effective date of

the statute, regardless of the date of

the sale of the allegedly defective or

-66-

unreasonably dangerous product.

Plaintiff urges that Adams reflects a

change in law which we must apply on

appeal. Defendant counters that Adams

did not change the law, because, as the

Supreme Judicial Court pointed out in

Adams, the language in Burke regarding

the strict liability statute, and on

which the trial court relied, was

dicta. In addition, defendant argues

that plaintiff should be estopped from

asserting this issue on appeal because

she consented to the court's reliance on

the Burke rule.

We are not persuaded by either of

defendant's arguments. It is true that

in Adams, the court insisted that it was

not overruling prior Maine law regarding

the reach of the strict liability

ata

statute, and that language in Burke to

7 to

the contrary was merely dicta.

deny plaintiff's appeal on that basis,

however, seems to us an evasive reading

of the rule that a change in the law

between a trial and an appeal requires

the court on appeal to apply the new

law. The trial judge certainly and, we

think, reasonably assumed that the Burke

rule was the law in Maine and, on that

basis, accepted it as the law of the

case. We think plaintiff is entitled to

7. The issue in Burke was the retro-

activity of the two statutes abolishing

the privity requirement in negligence

and breach of warrant suits. The

court's discussion of 14 M.R.S.A. § 221,

the strict liability statute, was in the

context of a general survey of legisla-

tive intent regarding changes in Maine's

products liability law.

-68-

have the proper rule, as expressed in

Adams, applied on appeal. See Bradley

v. Richmond School Board, 416 U.S. 696,

714, 94 §.Ct. 2006, 2017, 40 L.Ed.2d 476

(1974) (quoting Thorpe v. Housing

Authority of the City of Durham, 393

U.S. 268, 281, 89 S.Ct. 518, 525, 21

L.Ed.2d 474 (1969) (absent manifest

injustice to the parties, "‘'an appellate

court must apply the law in effect at

the time it renders its decision.'")).

If Adams is not seen as reflecting

a change in the law, but only stating

what it was, then the trial court's

ruling on the motion to dismiss was

Simply error.

Defendant relies on the doctrine of

"invited error" to urge that plaintiff

be barred from complaining of that

error. It points to plaintiff's

-69-

Statement to the court that she had no

response to defendant Unarco's position

on the strict liability issue.

{10, 11] We agree that, in

general, a party may not appeal from an

error to which he contributed, either by

failing to object or by affirmatively

presenting to the court the wrong law.

See McPhail v. Municipality of Culebra,

598 F.2d 603, 607 (lst Cir.1979). That

rule, however, assumes that the fault

for the error should lie on the

appealing party. In this case, we can

find little basis for holding anyone at

fault--either the parties or the court.

The exercise of all diligence in

researching Maine law on the issue led

to the conclusion accepted by all

parties and the court--that a claim in

Strict liability would not lie against a

manufacturer who did not supply products

after the effective date of the

Statute. The Supreme Judicial Court has

now made clear that that conclusion was

error. Whether we approach this new

clarity as a change in law or as simply

a signalling that the court's ruling was

error, we think that plaintiff is

entitled to have the correct Maine law

applied on appeal.®

8. Defendant points us to a recently

decided Maine case, Cuthbertson v. Clark

Equipment Co., 448 A.2d 315, Me.l962, in

which the plaintiff requested the court

to remand for a new trial on the strict

liability count for her complaint in

light of Adams v. Buffalo Forge Co..

The court declined to do so, because

plaintiff had "agreed to forego its

Claim on strict liability" in light of

Burke. Even were we bound by the

reasoning of the Maine court on this

issue, we would find the cases easily

distinguishable. The court in Cuth-

bertson noted that because of plaintiff's

voluntary decision to forego the strict

liability count, the court had never had

an opportunity to rule on the issue.

aJie

B. Harmless Error

[12] Defendant contends that even

if the trial court's dismissal of

plaintiff strict liability count was

error, that error was harmless because

the jury's finding that the decedent's

fault was equal to or greater than that

of defendant would have barred plaintiff

from recovering under a strict liability

theory. Defendant bases its argument on

the assumption that Maine's comparative

fault statute, 14 M.R.S.A. § 156, on

which the jury was charged regarding

plaintiff's negligence claim, would also

be applicable to a claim based on

Maine's strict liability statute.

In the case before us, plaintiff,

although concurring in the court's

reading of Burke, specifically requested

that the strict liability count be left.

The court then formally dismissed the

count and it is from that ruling that

plaintiff appeals.

=~ bo

The strict liability statute, 14

M.R.S.A. § 221, was passed in 1973.

Since that time, the Maine courts have

not addressed the applicability of §156,

enacted eight years earlier, to claims

brought under § 221. In Wing v. Morse,

300 A.2d 491 (Me.1973), decided just

prior to the enactment of § 221, the

Maine Supreme Judicial Court expressly

declined to decide whether § 156 should

apply to a claim based on strict

liability. Id. at 500 n. 10

Plaintiff urges that since § 221

adopts the language of the Restatement

(Second) of Torts § 402A, we should

assume that Maine law also adopts the

contributory negligence rule proposed in

that section of the Restatement.

Comment "n" to section 402A provides as

follows:

atu

"n. Contributory negligence.

Since the liability with which this

Section deals is not based upon

negligence of the seller, but is

Strict liability, the rule applied

to strict liability cases (see §

524) applies. Contributory

negligence of the plaintiff is not

a defense when such negligence

consists merely ina failure to

discover the defect in the product,

Or to guard against the possibility

of its existence. On the other

hand the form of contributory

negligence which consists is

voluntarily and unreasonably

proceeding to encounter a known

danger, and commonly passes under

the name of assumption of risk, is

a defense under this Section as in

other cases of strict liability.

If the user or consumer discovers

the defect and is aware of the

danger, and nevertheless proceeds

unreasonably to make use of the

product and is injured by it, he is

barred from recovery."

Under this rule, the jury would deny

plaintiff recovery only if it found that

her decedent voluntarily and

unreasonably assumed the risk of his

injury. Since the jury was charged only

under Maine's comparative negligence

sTée

statute, under which it could deny

plaintiff recovery if it found her

decedent as negligent as the defendant,

there is no way to know whether the jury

would also have denied recovery under

the comment "n" assumption of the risk

Standard. Thus, plaintiff argues, we

should remand for a new trial.

Defendant counters with a list of

jurisdictions that have ruled that their

comparative negligence statutes do apply

to strict liability actions. It also

urges that § 156 by its terms applies to

§ 221. Its reasoning is that § 156

applies to claims based on damage as a

result of fault. Fault is defined as

"negligence, breach of statutory duty,

or other action or omission which gives

rise to a liability in tort ...." A

violation of § 221 is both a form of

i=

"liability in tort", see Adams v.

Buffalo Forge,.Co., supra, 443 A.2d at

940, and a “breach of statutory duty."

Ergo, § 156 applies § 221.

While there is logic to defendant's

argument, we are not persuaded that the

answer to this question is clear. We

trust, however, that the district court

on remand will, with the aid of briefing

by the parties, or with the guidance of

the Maine Supreme Judicial Court, should

it deem certification of the question

advisable, be able to determine whether

Maine's comparative negligence statute

should apply to a claim based on strict

liability and, therefore, whether the

dismissal of the strict liability count

was harmless error. If not, the court

should grant a retrial on both the

-76-

liability and damages aspects of the

Strict liability count.

IV. Motion to Strike Comparative

Negligence Defense and for a

New Trial

Plaintiff's final claim of error

below is that the court erred in denying

her motions to strike defendant's

comparative negligence defense and for a

new trial on the basis of insufficient

evidence that the decedent was guilty of

negligence that was the proximate cause

of his death or that his negligence was

equal to or creater than the negligence

of the defendant.

{13] We will treat the motion to

Strike as a motion for a directed

verdict on the issue of the decedent's ¢

eFTeo

9 Such a

comparative negligence.

motion should be granted only if, as a

matter of law, no conclusion but one can

be drawn. See Rios v. Empresas Lineas

Maritimas Argentinas, 575 F.2d 986, 990

(lst Cir.1978). The burden on a moving

party is thus even heavier than that on

a party moving for a new trial, which

motion should be granted if the trial

court is convinced that the verdict is

against the weight of the evidence and

that a miscarriage of justice would

otherwise obtain. Id.; 9 C. Wright & A.

9. The motion to strike might also be

seen as a challenge based on the rule

that submission of an instruction to the

jury that is unsupported by the evidence

is error. See Gillentine v. McKeand,

426 F.2d 717, 723 (1st Cir.1970). in

either case, the review is of the

sufficiency of the evidence and the

trial court is constrained by the rule

that the evidence is insufficient to go

to the jury only when, as a matter of

law, no conclusion but one can be drawn.

-78-

Miller, Federal Practice & Procedure:

Civil, Sec. 2531 (1971).

The court denied plaintiff's motion

to strike without opinion. After the

jury returned its verdict, however, the

court held a hearing on plaintiff's

motion for a new trial and for judgment

notwithstanding the verdict. The court

rehearsed the testimony and evidence

presented at trial. It concluded that:

"Based upon that review, this Court

is firmly convinced that the jury

was justified in reaching the

determinations they did and

therefore that neither a new trial

nor a judgment notwithstanding the

verdict is warranted. The evidence

was mixed. Nevertheless, there was

ample testimony at the trial, and

other evidence, from which the jury

properly could conclude that Blaine

Austin either knew or should have

known there were health hazards

associated with breathing asbestos

dust. See, for example, the

testimony of Victor Leask, John

Conley and Francis Pinette. See,

also, Defendants’ Exhibit No. 7,

the memorandum dated May 25, 1953,

from Adams to Conley.

=79=

There was also ample testimony

at the trial from which the jury

could conclude that Blaine Austin

failed to exercise due care for his

Own safety. See, for example, the

testimony of Francis Pinette,

Dennis Fraser and John Conley that

Blaine Austin did not wear a

respirator, though respirators were

availablel6 and Bath Iron Works

10. In her memorandum in support of her

motion for a new trial and on appeal,

plaintiff urges that there was no

evidence that any respirator available

to decedent at the time he was exposed

to the asbestos that caused his death

could have prevented him from contract-

ing mesothelioma. The court did not

specifically address that claim. A

finding for her on that point however,

would have required the court to agree

with her as to the length of the latency

period for mesothelioma - since her

argument is based on the type of respir-

ators available in the 1950's, twenty

years before the decedent's death, and

as to whether mesothelioma is dose-rela-

ted - since her argument assumes that

only a respirator that kept out 100% of

the asbestos dust would have been

effective in preventing decedent's

death. We take the court's ruling that

respirators were available as a recog-

nition that testimony on both points was

inconclusive and therefore, that the

jury could find that use of the respir-

ators that were available would have

-80-

had cautioned its employees to use

them when working in closed spaces,

eee

For the above reasons, this

Court cannot say that the verdict

returned by the jury “was clearly

against the weight of the

evidence," Rios v. Empress [sic]

Lineas Maritimas Argentinas, supra,

575 F.od at 991 (fn. Omitted) an

at 990. The motion for a new trial

is therefore denied, and since the

standard which must be met to

justify a judgment notwithstanding

the verdict is even higher than

that which must be met to justify

the granting of a new trial, it

necessarily follows that the motion

for a judgment notwithstanding the

verdict must also be and it is

therefore denied."

{[14, 15] Our review of the court's

rulings is limited. A motion for a new

trial is addressed to the sound

discretion of the trial court and will

reduced the decedent's chances of

contracting the disease.

ale

be reversed only for abuse of that

discretion. Rios v. Empresas Lineas

Maritimas Argentinas, supra, 575 F.2d at

990. See also DeVasto v. Faherty, 658

F.2d 859, 860 (lst Cir.1981). Its

ruling on the motion for judgment n.o.v.

should be reversed only if viewing the

evidence in the light most favorable to

the nonmoving party only one conclusion

can be reached. Id. Having reviewed

the evidence produced at trial and the

trial court's own careful consideration

of that evidence, we cannot say that the

court abused its discretion in denying a

motion for a new trial or that the

evidence was insufficient as a matter of

law to support a finding that the

negligence of plaintiff's decedent was a

proximate cause of his own death.

oil Dan

Conclusion

In conclusion, we affirm the ruling

of the district court that admiralty law

did not apply to plaintiff's claims. We

remand the case, however, for the court

to determine, either with the aid of

briefing by the parties or by certifying

the question to the Supreme Judicial

Court of Maine, whether Maine's

comparative negligence statute should be

applied to a claim based on 14 M.R.S.A.

§ 221. If so, the court's dismssal of

the strict liability count was harmless

error. If not, the case should be

retried under Maine law and the jury be

given an opportunity to determine

whether defendant was strictly labile

for its failure to warn of the dangers

of asbestos and what proportion, if any,

of the damages should be offset by

plaintiff's decedent's own negligence.

al us

Vacated and remanded for

proceedings consistent with this opinion.

-84-

/8s/ MANDATE

United States Court of Appeals

FOR THE FIRST CIRCUIT

No. 82-1168

MARGARET AUSTIN, ETC.,

Plaintiff, Appellant,

vs.

UNARCO INDUSTRIES, INC., ET AL.,

Defendants, Appellees.

JUDGMENT

Entered March 30, 1983

This cause came on to be heard on

appeal from the United States District

Court for the District of Maine, and was

argued by counsel.

Upon consideration whereof, It is

now here ordered, adjudged and decreed

as follows: The judgment of the

district court is vacated and the cause

is remanded for further proceedings

consistent with the opinion filed this

day.

No costs at this time.

By the Court:

[s/ Dana H. Gallup

Cler

[cc: Messrs. McTeague, McNaboe

and Culley.)

e8S~

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

MARGARET AUSTIN, Adminis-)

tratrix of the Estate of )

Blaine Austin, )

Plaintiff

vs. CIVIL NO.

)

)

)

) 75-122 P

RAY BESTOS-MANHATTAN, )

INC., )

Defendant )

CERTIFICATE TO THE SUPREME

JUDICIAL COURT OF MAINE

To the Supreme Judicial Court of Maine:

The United States District Court

for the District of Maine hereby certi-

fies to the Supreme Judicial Court of

Maine, pursuant to 4 M.R.S.A. § 57, as

amended, and Rule 76B of the Maine Rules

of Civil Procedure, as follows:

1. In the above-named proceeding

now pending before this Court it appears

to this Court that there is involved a

-86-

question of law of the State of Maine

which may be determinative of the cause,

which question of law is hereinafter set

forth and certified, and that as to such

guestion of law there are no clear, con-

trolling precedents in the decisions of

the Supreme Judicial Court of Maine.

2. The following statement of

facts shows the nature of the case and

the circumstances out of which such

question of law of the State of Maine

arises:

Plaintiff's decedent, Blaine

Austin, was employed by Bath Iron Works

Corporation as a painter and cleaner

from 1952 through the fall of 1976. He

worked on board ships. His primary job

was to follow behind the pipecoverers,

who applied asbestos insulation products

to pipes, boilers and ship machinery,

-87-

and paint over asbestos insulation. He

also swept and gathered up asbestos

scraps left by the pipecoverers. During

both tasks, he breathed in asbestos

fibers and dust created by the

pipecoverers' cutting and shaping of the

asbestos insulation. As a result of his

exposure to asbestos he contracted

pleural mesothelioma, an asbestos-

induced cancer of the lining of the

lung. He died on October 13, 1977.

Defendant Raybestos-Manhattan, Inc.

supplied asbestos-containing products to

Bath Iron Works Corporation during the

years that plaintiff's decedent worked

there.

By complaint dated June 14,

1978, the plaintiff commenced a civil

action against the defendant for damages

arising from the death of her husband.

The complaint stated causes of action

based on negligence, breach of warranty,

and on 14 M.R.S.A. § 221. Subject

matter jurisdiction was based on

diversity of citizenship. The defendant

answered the complaint by denying the

material allegations of same and by

asserting various affirmative defenses,

including tne comparative negligence of

plaintiff's decedent.

Trial commenced in this Court

on November 2, 1981. At the close of

the plaintiff's case the defendant moved

for a directed verdict on all counts of

the complaint. This Court directed a

verdict for the defendant on those

counts of the complaint which were based

on breach of warranty and on 14 M.R.S.A.

§ 221. Those counts of the complaint

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based on negligence were submitted to

the jury.

In response to special

interrogatories, the jury found the

defendant guilty of negligence which was

a proximate cause of the death of Blaine

Austin. The jury also found, however,

that Blaine Austin was guilty of

negligence which was a proximate cause

of his own death, and further that the

negligence of Blaine Austin was equal to

Or greater than the negligence of the

defendant. Accordingly, pursuant to the

Maine comparative negligence statute,

14 M.R.S.A. § 156, this Court entered

judgment for the defendant.

The plaintiff appealed the case to

the United States Court of Appeals for

the First Circuit. One basis of the

appeal was that the Court committed

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error in directing a verdict for the

defendant on those counts of the

complaint based on 14 M.R.S.A. §221.

The United States Court of Appeals for

the First Circuit held that this Céurt

committed error in directing a verdict

for the defendant on those counts of the

complaint based on 14 M.R.S.A. § 221,

but further held that said error would

be harmless if the comparative

negligence statute, 14 M.R.S.A. § 156,

is applicable to an action based on 14

M.R.S.A. § 221. If, however, 14

M.R.S.A. § 156 is not applicable to an

action based on 14 M.R.S.A. § 221, the

Court of Appeals held that the case must

be retried. The Court of Appeals

therefore vacated the judgment in favor

of the defendant and remanded the case

to this Court either itself to determine

ile

whether the Maine comparative negligence

statute, 14 M.R.S.A. § 156, is

applicable to an action based on 14

M.R.S.A. § 221, or to certify said

question to the Supreme Judicial Court

of Maine.

On May 24, 1983, the plaintiff

filed a motion to have the issue of the

law of the State of Maine certified to

the Supreme Judicial Court of Maine.

The defendant joined in said motion.

The motion was granted by this Court on

May 27, 1983.

3. This Court hereby certifies the

following question of law of the State

of Maine to the Supreme Judicial Court

of Maine for instructions concerning

such question, and respectfully requests

an answer thereto by written opinion:

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Is Maine's comparative

negligence statute, 14 M.R.S.A.

§ 156, applicable to plain-

tiff's claim in this action

based on 14 M.R.S.A. § 221?

4. In the proceedings before the

Supreme Judicial Court the defendant,

Raybestos-Manhattan, Inc., shall be

treated as the appellant.

5. This Court has attached hereto

a copy of the decision of the United

States Court of Appeals for the First

Circuit remanding this case, and will,

upon request by the Supreme Judicial

Court of Maine, make available to the

Supreme Judicial Court of Maine the

original or copies of all or any portion

of the record before this Court.

Dated at Portland, Maine, this 3lst

day of May 1983.

/s/ Edward T. Gignoux

United States District Judge

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