Opposition Brief — Raymark Industries, Inc. v. Bath Iron Works Corp.

FILED

! Supreme Court, U.S.

| i MAR 22 1986

Y J

No. 85-1246 if JOSEPH F. SPANIOL. UR.

CLERK

IN THE

Supreme Court of the Hnited States

October Term, 1985

MILDRED V. DRAKE

Vv.

RAYMARK INDUSTRIES, INC., et al.,

Petitioners

Vv.

BATH IRON WORKS CORPORATION,

Respondent

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

Counsel for Respondent:

Robert F. Hanson, Counsel of Record

James D. Poliquin

NORMAN & HANSON

P.O. Box 4600 DTS

Portland, ME 04112

(207) 772-8352

No. 85-1246

IN THE

Supreme Court of the United States

October Term, 1985

MILDRED V. DRAKE

Vv.

RAYMARK INDUSTRIES, INC.., et al.,

Petitioners

Ve

BATH IRON WORKS CORPORATION,

Respondent

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

Counsel for Respondent:

Robert F. Hanson, Counsel of Record

James D. Poliquin

NORMAN & HANSON

P.O. Box 4600 DTS

Portland, ME 04112

(207) 772-8352

TABLE OF CONTENTS

Page

Questions Presented ....... 1

Index to Appendices ....... iii

Table of Authorities ...... iv

ee ee ee ee ee ee ee eee

Statement of the Case ....... 3

Mme Bmeemesee ce eveeeee 3

B. First Circuit Decision .. 4

Reasons for Denying the Writ. ... 6

I. This Court Should Not Address the

Interrelationship of Maritime

Jurisdiction and Section 905(b) in

this Case Because BIW’s Status as

Neither an Owner nor Owner Pro Hac

Vice of the Vessels Makes

Resolution of the Section 905(b)

Issue Irrelevant to the Outcome of

DPE a) « © «6 «© «© «© eo o

II. A Conflict Among the Circuits Does

Not Exist on the Question of

Whether Section 905(b) Applies Only

to Those Claims Within the

Admiralty Jurisdiction of the

Federal Courts. ...... 8

III. The First Circuit Correctly

Interpreted and Applied the

Executive Jet “Nexus”

Requirement ........ 19

IV. This Court Should Not Address at

this Time the Question of Whether

Section 905(a) Bars Contribution

Actions Against Employers Because

No Conflict Exists Among the

Circuits and the First Circuit’s

Decision is Consistent with Supreme

Court Cases Interpreting the LHWCA

*s & &@ @ € 6S &@ @ 6 8 6 « 26

V. The Issue of What Employer Immunity

Provisions Apply in Cases Within

the Concurrent Coverage of the

LHWCA and State Compensation Act

Does Not Pose a Substantial Federal

Question Worthy of Supreme Court

MOV scene e eee 43

VI. No Conflict Among the Circuits

Exists on the Question of What

Employer Immunity Provision Applies

in Cases Within the Concurrent

Coverage of the LHWCA and a State

Compensation Act ..... 48

ND a ee ee ae 52

Certificate of Service ...... 53

INDEX TO APPENDICES

Page

Appendix A

Memorandum and Order of the District

Court dated August 9, 1982. ... la

Appendix B

Memorandum and Order of the

District Court dated July 4, 1984 . 29a

/-=JI111<-

i> die de

TABLE OF AUTHORITIES

Allied Towing Corp. v. Taten,

580 F.2d 702 (4th Cir. 1978) 11

American Mutual Liability Insurance Co.

v. Matthews, 182 F.2d 322 (2nd Cir. 1950)

32

Austin v. Unarco Industries, Inc.,

705 F.2d 1 (lst Cir.), cert. dismissed,

463 U.S. 1247 (1983) 23, 24

Baird v. John McShane Inc.,

108 F.Supp. 553 (D.D.Cc. 1952) 33

Bernier v. Johns Manville Sales Corp.,

78-98 P(D. Me. August 9, 1982)

2

Brown v. American-Hawaiian S.S. Co.,

211 F.2d 16 (3rd Cir. 1954) 32

Bynum v. Patterson Truck Lines, Inc.,

655 F.2d 643 (5th Cir. 1981)

13, 15, 16

Coates v. Potomac Electric Power Co.,

95 F.Supp 779 (D.D.C. 1951) 33

Cooper Stevedoring Inc., v. Fritz Kopke,

Inc., 417 U.S. 106 (1974)

29, 30

-iv-

Executive Jet Aviation Inc., v. City of

Cleveland, 409 U.S. 249 (1972)

4, 8, 9

12, 14, 16

A9,e Bh, 24

Halcyon Lines v. Haenn Ship Ceiling

and Refitting Corp., 342 U.S. 282 (1951)

29, 30

Hall v. Hvide Hull No. 3,

746 F.Supp. 294 (5th Cir. 1984), cert.

denied 106 ® ct. 69 (1985).

9, a3, AS

16, 17

Harrelson v. United States,

420 F.Supp. 788 (S.D. Ga. 1976),

affirmed, 548 F.2d 353 (5th Cir. 1977)

10

Hill v. Texaco Inc., 674 F.2d 447 (5th

Cir. 1982) 11

Hollister v. Luke Construction Co.,

517 F.2d 920 (5th Cir. 1975) 17

Jenkins v. McDermot Inc.,

734 F.2d 229 (5th Cir. 1984)

48, 49, 50

Kalogeros v. Brasileiro ,

446 F. Supp. 1975 (S.D.N.Y. 1978) 9

Lockheed Aircraft Corp. v. United States,

460 U.S. 190 (1983) 5, 26, 27

26, 29," 32

76, Ste oe

—

Lowe v. Ingalls Shipbuilding,

723 F 24 1173 (5th Cir. 1974) 13. 239

Lundy v. Litton Systems Inc.,

624 F.2a 590 (5th Cir.),

cert. denied, 450 U.S. 913 (1981) 13

McCarthy v. The Bark Peking,

716 F.2d 130 (2nd Cir. 1983) 11

McKellar v. Clark Equipment Co.,

472 A.2d 411 (Me. 1984) 44

Murray v. United States,

405 F.2d 1361, 1364 (p.¢. Car. 1968)

32

Ocean Drilling and Exploration Co.

v. Berry Brothers Oil Field Service,

377 F.2d 511 (5th Cir. 1967) 32

Parker v. South Louisiana Contractors,

Inc.,

537 F.2d 113 (5th Cir. 1976)

Bog S29, 36

Roberts v. American Chain & Cable Co.,

259 A.2ad 43 (Me. 1969)

41

Russell v. Atlantic and Gulf Stevedores,

625 F.2d 71 (5th Cir. 1980)

13, 15, 16

Ryan Stevedoring Co., v. Pan-Atlantic

S.S. Corp., 350 #4U.S. 120 (1956)

31, 34

-vi-

Savoy v. United States,

469 F.Supp. 301 (E.D. La. 1978) 10

Seas Shipping Co., v. Sieracki,

328 U.S. 85 (1946)

31, 34

Simpson Timber Co., v. Partes,

390 F.2d 353 (9th Cir. 1968) 32

Stass v. American Commercial Lines Inc.,

720 F.2d 879 (5th Cir. 1983)

9

Weyerhaeuser SS Co. v. United States,

372 U.S. 597 (1963) 26, 28

STATUTES AND TREATISES

33 U.S.C. §905(a) 5, 18, 19,

26, 28, 30

31, 33, 35

37, 38, 39

41, 42, 43

44

33 U.S.C. §905(b) 6, 7, 8,

9, 14, 15

33 U.S.C. §933 50

28 U.S.C. §1331(1) 15

5 U.S.C. §8116(c) 27, 28

36 D.C. Code §501 (1973) 33

2 A. Larson, The Law of Workmen’s

Compensation §65.14 at 12-9 (1983) 45

-vii-

MISCELLANEOUS

Cong. Rec. S11621 (Sept. 20, 1984)

35

Cong. Rec. S11623 (Sept. 29, 1984)

36

S. Rep. No. 98-81 (98th Cong. list Sess.)

37

Il.

Iil.

QUESTIONS PRESENTED

DID THE LOWER COURT ERR IN

HOLDING THAT CLAIMS BY SHIPYARD

WORKERS FOR INJURIES CAUSED BY

ASBESTOS EXPOSURE IN THE COURSE

OF SHIPBUILDING AND SHIP REPAIR

ARE NON-MARITIME, AND THEREFORE

OUTSIDE THE SCOPE OF SECTION

905(b) ?

DID THE LOWER COURT ERR IN

HOLDING THAT THE IMMUNITY

PROVIDED BY SECTION 905(a) AND

SECTION 933 BARS CONTRIBUTION

ACTIONS BROUGHT BY THIRD-PARTY

TORTFEASORS AGAINST AN EMPLOYER

UNDER THE LONGSHORE AND

HARBOR WORKERS’ COMPENSATION ACT?

WHEN THE LONGSHORE AND HARBOR

WORKERS’ COMPENSATION ACT AND A

STATE COMPENSATION ACT PROVIDE

CONCURRENT COVERAGE FOR AN

EMPLOYEE’S INJURY, SHOULD THE

EMPLOYEE’S INITIAL ELECTION OF

COMPENSATION UNDER THE LONGSHORE

AND HARBOR WORKERS’ COMPENSATION

ACT CONTROL THE EMPLOYER’S

LIABILITY TO THIRD-PARTY

TORTFEASORS UNDER STATE LAW?

OPINIONS BELOW

Raymark reprints in it’s Petition the

decision of the First Circuit below and

the District Court’s Memorandum and Order

from which appeal was taken. In granting

summary judgment in Drake, the District

Court incorporated the reasoning of two

earlier decisions on issues’ significant

to the Petition. In Bernier v. Johns

Manville Sales Corp., 78-98 P(D.Me.

August 9, 1982), the District Court held

that Bath Iron Works Corporation

(hereinafter ”“BIW”) was not the owner or

owner pro hac vice cf the vessels at its

shipyard upon which employees were

exposed to asbestos. This Memorandun,

Opinion and Order is reprinted as

Appendix A. The District Court also held

that section 4 of the Maine Workers

Compensation Act (hereinafter “”MWCA”)

could bar contribution actions against

BIW even if the employee initially filed

a claim only under the LHWCA. See In re

All Maine Asbestos Litigation (BIW cases)

(D. Me., July 4, 1984) (reprinted as

Appendix 8B). Raymark Petitions for

Certiorari on this latter issue, but not

on the question of vessel ownership.

STATEMENT OF CASE

The Respondent BIW adopts the

Statement of the Case in the Petition

with the exceptions and additions noted

below.

A. FACTS

Many of the approximately 300

asbestos cases do not involve exposure

solely while on vessels in navigable

waters. Employees were exposed to

asbestos on land and/or while working on

vessels in navigable waters. Forest

Drake allegedly was exposed to asbestos

in both places.

While neither Forest Drake nor his

widow ever applied for or received

benefits under the MWCA, BIW’s status as

an “assenting” employer meant that

compensation benefits were available

under that Act throughout the relevant

period of time.

B. FIRST CIRCUIT DECISION

The First Circuit disposed of all

claims against BIW by resolving two legal

issues. First, the Court held that

section 905(b) had no application to the

asbestos cases because the Executive Jet

requirement of a nexus to traditional

maritime activity was not satisfied.

According to the Court, the scope of

section 905(b) is co-extensive with the

prevailing contours of maritime

jurisdiction. Secondly, the Court

concluded that section 905(a) barred

contribution actions against employers.

The Court rejected Raymark’s contention

that the decision in Lockheed v. United

States, 460 U.S. 190 (1983) warranted a

reversal of consistent Supreme Court and

lower court decisions construing section

905(a) as a bar to contribution actions.

The First Circuit did not disturb

the District Court’s conclusions that BIW

was not an owner or owner pro hac vice of

vessels and that section 4 of the MWCA

operated to bar contribution actions

against BIW regardless of whether the

employee in question initially filed a

compensation case under the LHWCA or the

MWCA.

REASONS FOR DENYING THE PETITION FOR

WRIT OF CERTIORARI

I. THIS COURT SHOULD NOT ADDRESS THE

INTERRELATIONSHIP OF MARITIME

JURISDICTION AND SECTION 905(b) IN THIS

CASE BECAUSE BIW’S STATUS AS NEITHER AN

OWNER NOR OWNER PRO HAC VICE OF THE

VESSELS MAKES RESOLUTION OF THE SECTION

905(b) ISSUE IRRELEVANT TO THE OUTCOME OF

THIS CASE.

Raymark requests certiorari on only

one of several interdependent

prerequisites to liability under

section 905(b). Raymark asserts that

section 905(b) forms the necessary

predicate for a contribution claim by

giving BIW employees a direct cause of

action against their employer under

certain circumstances. Section 905(b)

on its' face eddreases only claims by

employees under the Act, not claims of

third parties such as Raymark. Raymark’s

interest in section 905(b) flows from an

understanding that a contribution claim

conceivably may exist against BIW if BIW

employees possess a direct claim against

their employer.

BIW cannot be held liable to its

employees under section 905(b) unless all

of the following propositions are true:

(1) At material times, BIW was an owner

pro hac vice of vessels under

construction and repair at the shipyard;

(2) the injuries to BIW employees caused

by asbestos exposure are within general

maritime jurisdiction; and (3) the

injuries to BIW employees were not caused

by “persons engaged in providing

shipbuilding or repair services to the

vessel” (33 U.S.C. §905(b)).

After a thorough review of the

record, the District Court held that BIW

was not an owner or owner pro hac vice

because any control by BIW over the

vessels under construction and repair at

its shipyard was merely incidental to

construction and repair operations.

Raymark does not seek review of this

determination, but requests certiorari on

another prerequisite to section 905(b)

liability of absolutely no relevance

unless BIW was an owner or owner pro hac

vice of the vessels.

Il. A CONFLICT AMONG THE CIRCUITS DOES

NOT EXIST ON THE QUESTION OF WHETHER

SECTION 905(b) APPLIES ONLY TO THOSE

CLAIMS WITHIN THE ADMIRALTY JURISDICTION

OF THE FEDERAL COURTS.

The Petition of Raymark cites

several cases in support of the

contention that the Circuit Courts of

Appeal are in conflict onthe issue of

whether the test of Executive Jet

Aviation Inc., v. City of Cleveland, 409

U.S. 249 (1972), applies to section

905(b) claims. With the possible

exception of Hall v. Hvide Hull No.3, 746

F.2d 294 (5th Cir. 1984), cert. denied,

106 S. Ct. 69 (1985), none of those cases

directly address the jurisdictional

issue, particularly the interrelationship

of section 905(b) and traditional

maritime jurisdiction. In fact, the

cases cited by Raymark as implicitly

inconsistent with Drake involve distinct

factual scenarios probably within the

scope of maritime Jurisdiction as

delineated by Executive Jet.

In Stass v. American Commercial

Lines Inc., 720 F.2d 879 (5th Cir. 1983)

the employee fell through an open hatch

when he slipped on soybeans left on the

ship’s deck. The employee in Kalogeros

v. Brasileiro 446 F. Supp. 1975 (S.D.N.Y.

1978) alleged that he slipped on oily

stairs when descending to the engine

room. The regular ship’s crew was in

charge of the vessel and engine roon.

The case of Savoy v. United States, 469

F. Supp. 301 (E.D. La. 1978) also

involved an employee who fell while

descending stairs. The employee claimed

that the stairs were hazardous because of

an excessive incline. The employee in

DiLorenzo v. Robert E£. Lee, Inc., 412 F.

Supp. 1012 (E.D. La. 1976) asserted a

claim based on the negligence of the

vessel’s captain in throwing fuel oil on

the deck. In Harrelson v. United States,

420 F.Supp. 788 ($.D. Ga. 1976),

affirmed 548 F.2d 353 (5th Cir. 1977), an

employee testing cargo tanks for leaks

was struck by an unidentified object

allegedly left by the ship’s crew ona

set of grated stairs. The employee in

-10-

Hill v. Texaco Inc., 674 F.2d 447 (5th

Cir. 1982) Slipped and fell while

inspecting a gasoline storage tank for

rust. The barge owner in Allied Towing

Corp. v. Tatem, 580 F.2d 702 (4th Cir.

1978) was negligent in carrying a grade

of fuel for which it was not certified.

The barge exploded when welders began

repairs on a leak. Finally, the employee

in McCarthy v. The Bark Peking, 716 F.2d

130 (2nd Cir. 1983) fell while painting

the upper mainmast and spars of the

vessel.

None of those cases involved a

hazard comparable to asbestos exposure

during the construction and major

overhaul of vessels. The employees in

those cases were faced with hazards

normally associated with the use of

vessels. On the other hand, the hazard

-li-

of inhaling asbestos dust is created

during the construction or rip out of the

vessels by the work of the shipbuilders

themselves, and cannot be analogized to

hazards in existence at the time the

vessel is made available to others for

unloading or repair. All of the

authorities offered by Raymark as

evidence of an intercircuit conflict

involve factual situations arguably

bringing the cases within the scope of

maritime jurisdiction as defined by

Executive Jet. None of the cases make

express holdings contrary to the First

Circuit decision in Drake and Raymark’s

observations regarding implicit holdings

are wide of the mark.

The case law in the Fifth Circuit is

not sufficiently settled to warrant the

conclusion that a conflict exists between

the Fifth and First Circuits.

The Fifth Circuit in Hall v. Hvide Hull,

746 F.2d 294, was forced to grapple with

what it perceived as its own, prior

inconsistent decisions. Compare Lundy v.

Litton Systems Inc., 624 F.2d 590 (5th

Cir.) cert. denied, 450 U.S. 913 (1981)

with Lowe v. Ingalls Ship Building, 723

F.2d 1173 (5th Cir. 1984). See also

Bynum v. Patterson Truck Lines Inc., 655

F.2d 643 (5th Cir. 1981); Russell v.

Atlantic and Gulf Stevedores, 625 F.2d 71

(5th car. 1980); Parker v. South

Louisiana Contractors Inc., 537 F.2d 113

(Sth Cir. 1976). Analysis of these Fifth

Circuit cases reveals three distinct

issues: (1) whether a certain claim

-13-

satisfies the pre-Executive Jet test for

maritime jurisdiction; (2) whether a

certain claim satisfies the Executive Jet

test of maritime jurisdiction; and (3)

what tests should be employed in

determining whether a claim is stated

under section 905(b). The First Circuit

in Drake held that the scope of section

905(b) was governed by the Executive Jet

test and that maritime jurisdiction did

not exist.

The issue of whether section 905(b)

can provide an independent basis for

federal question jurisdiction is related

to the issue of whether a claim under

section 905(b) must satisfy the Executive

Jet test for maritime jurisdiction. The

Fifth Circuit held unequivocally that

section 905(b) did not create a federal

statutory cause of action and therefore

-14=

could not form an independent basis for

federal question jurisdiction. See

Parker v. South Louisiana Contractors

Inc., 537 F.2dd at 116-17; Bynum vv.

Patterson Truck Lines Inc., 655 F.2d at

644; Russell v. Atlantic and Gulf

Stevedores, 625 F.2d at 72. The Court in

Bynum explained that “federal

jurisdiction of section 905(b) claims is

based upon general maritime law, 28

U.S.C. section 1331(1), not independentl,

upon Section 905(b) statutory recognition

of the right to recovery. . .” Id. at

654. Section 905(b) is merely a

restatement of the negligence claim

already recognized under maritime law.

In Hall v. Hvide Hull, the Court

maintained that Congress, in enacting

section 905(b), intended to freeze in

time the prevailing concepts of maritime

—— a

de

08 6 eG:

jurisdiction and incorporate them into

the statute, thereby insulating section

905(b) from the evolving common law of

maritime jurisdiction. By locking into

pre-Executive Jet admiralty concepts, the

Court in Hall apparently sanctioned the

assertion of section 905(b) claims

without requiring the satisfaction of

prevailing rules of maritime

jurisdiction. The severing of section

905(b) from the confines of present day

maritime jurisdiction is the equivalent

of establishing a new statutory claim

capable of forming the basis for federal

question jurisdiction, a result disavowed

in Parker, Bynum and Russell. The Hall

case also may conflict with other Fifth

Circuit decisions interpreting the scope

of general maritime jurisdiction. See

Lowe v. Ingalls Ship Building, 723 F.2d

-16-

1173 (5th Cir. 1974); Hollister v. Luke

Construction Co., 517 F.2d 920 (5th Cir.

1975).

The only confusion concerning the

interrelationship of section 905(b) and

the law of maritime jurisdiction is

within conflicting Fifth Circuit

decisions, not conflicting decisions

among the circuits. Even the Fifth

Circuit in Hall noted that the apparent

inconsistency in its decisions presented

an issue of “bancworthy dimension.” 746

F.2d at 295. The Fifth Circuit. however,

declined the Hall panel’s invitaticn for

en. banc review. As this Court

demonstrated in denying the petition for

certiorari in Hall, review should not be

granted on the _ section 905(b) issue

solely because of a possible intracircuit

conflict in the Fifth Circuit.

”

wer

ll

> ~ *' oe

-'

Neither should the Petition be

granted because of an alleged deprivation

of protection for workers. See Raymark

Petition at 26-28. Confining the scope of

section 905(b) to claims within general

maritime jurisdiction does not deprive

workers of remedies intended by Congress.

A lack of amaritime claim is not the

equivalent of no claim at all. If

maritime law does not apply, owners or

occupiers of property, including vessels

under construction or major overhaul, are

responsible for tortious conduct under

state law. Raymark’s motivation in

apparently rallying for employee’s rights

springs from a need to overcome the

employer immunity of section 905(a).

That explains why Raymark is not content

with the employees having state law

negligence claims rather than maritime

-18=-

claims. If the employer is ae vessel

owner, only the pre-1984 version of

section 905(b) penetrates the employer

immunity of section 905(a).

Iil. THE FIRST CIRCUIT CORRECTLY

INTERPRETED AND APPLIED THE EXECUTIVE JET

“NEXUS” REQUIREMENT.

Raymark misconstrues both

Executive Jet and the First Circuit

interpretation of that decision. Raymark

avoids entirely an analysis of the nature

of the employee’s work and the cause of

injury, preferring to latch onto

generalities and labels. According to

Raymark, maritime jurisdiction is

satisfied per se with the simple

allegation that the employee was injured

by the negligence of a “vessel.”

The scope of maritime jurisdiction

depends upon the interaction of the

federal need for uniformity in matters of

-19=-

maritime commerce and navigation and a

due regard for the independence and

jurisdiction of state governments.

Although Raymark recognizes the need for

uniformity as a key variable, no attempt

is made in the Petition to articulate a

federal interest ina uniform tort law

applicable to cases of asbestos exposure.

Raymark notes that “the duties of the

vessel owner .. ., whose activities take

him from port to port, historically have

been the sole province of the maritime

TP ee Raymark Petition at 33.

Unlike most legal issues arising out of

the activities of a vessel, ship

construction and major overhaul do not

take a vessel owner “from port to port.”

Significantly, BIW’s .‘tleged status as an

Owner pro hac vice springs solely from

the “control” exercised by BIW incidental

-20-

to its ship building and overhaul

operations. Since none of BIW’s

activities, even those as an alleged

vessel owner, take it from “port to

port,” state law is as capable as federal

law of treating BIW uniformly in all its

activities.

The federal need for uniformity

applies to matters of maritime navigation

and commerce, matters arising from the

use of a vessel as ae vessel. As

explained by this Court in Executive Jet:

The law of admiralty has

evolved over many centuries,

designed and molded to handle

problems of vessels relegated

to ply the waterways of the

world, beyond whose shores they

cannot go. That law deals with

navigational laws --- 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

-21-

questions that may arise from

such a catastrophe. 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 of salvage.

409 U.S. at 269-70. The construction or

major overhaul of a vessel is a

stationary, long term project. Maritime

commerce and navigation are not

negatively affected by a lack of

uniformity flowing from the application

of state tort law to claims for exposure

to asbestos during construction and major

overhaul of vessels. The law of the sea

can claim no expertise on legal and

factual matters related to claims of

exposure to asbestos in the work place.

-22-

The asbestos manufacturers have

fought successfully against the

invocation of admiralty jurisdiction in

the claims against then, yet

simultaneously argue that admiralty

jurisdiction applies to claims employees

allegedly have against BIW. See Austin

v. Unarco Industries, Inc., 705 F.2d 1

(lst Cir.), cert dismissed, 463 U.S. 1247

(1983). Raymark professes to “see no

hint of inconsistency in its position.”

Raymark Petition at 34. The First

Circuit in Austin summarized and adopted

the argument of the asbestos

manufacturers on the jurisdictional

question:

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

Ne ne A Oe erie sll Ge aN OE Rul ueeeh Ine teers sine a blLeencuaa Whe uaa,

of admiralty; and that the

policy justifications for a

uniform maritime law do not

support admiralty jurisdiction

in this case. After much

reflection, we agree.

705 F.2d at 10-11. Raymark offers to

this Court the exact opposite: that

Drake’s work was significantly related to

traditional maritime activity involving

navigation and commerce; that injuries to

shipyard workers are a traditional

concern of admiralty law; and that the

policy justifications for a uniform

maritime law do support admiralty

jurisdiction. The absence of admiraity

jurisdiction in Austin was not the result

of Raymark’s status as a manufacturer as

opposed to a shipyard, but rather the

result of a determination that “the

hazards faced by a shipyard worker

-24-

4

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.

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1

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3

Pt A A ae

installing asbestos are scarcely

traditional concerns of admiralty . . .”

705 F.2d at 12-13.

The First Circuit’s decision in

Drake does not “constitute a dangerous

and unwarranted erosion of the admiralty

jurisdiction . . .” Raymark Petition at

34. In so characterizing the Drake

decision, Raymark completely ignores the

Court’s emphasis on the employee’s job

activities and circumstances surrounding

the injury. No reasonable reading of the

Drake opinion supports Raymark’s

observation that the First Circuit held

that “whether a vessel poses an

unreasonable danger to those legitimately

on board is better left to state tort

law.” Petition at 34. The First Circuit

unquestionably would find admiralty

jurisdiction in a wide range of cases

-25-

involving injury to those on board

vessels caused by vessel owner

negligence. Those exposed to the work-

place hazard of asbestos during ship

construction and major overhaul are

appropriately excluded from that group.

IV. THIS COURT SHOULD NOT ADDRESS AT

THIS TIME THE QUESTION OF WHETHER SECTION

905(a) BARS CONTRIBUTION ACTIONS AGAINST

EMPLOYERS BECAUSE NO CONFLICT EXISTS

AMONG THE CIRCUITS AND THE FIRST

CIRCUIT’S DECISION IS CONSISTENT WITH

SUPREME COURT CASES INTERPRETING THE

LHWCA.

A. The case of Lockheed Aircraft Corp.,

v. United States, 460 U.S. 190 (1983),

does not suggest or compel an

interpretation of section 905(a) contrary

to the First Circuit’s decision in

Drake.

Raymark’s attack on section 905(a)

rests solely upon the Supreme Court

decision in Lockheed Aircraft Corp. v.

United States, 460 U.S. 190 (1983). The

Court in Lockheed permitted an indemnity

action against the United States despite

-26-

5

|

.

']

|

y

;

i

;

;

the exclusive liability provision at 5

U.S.C. §8116(c). The Court held “only

that FECA’s exclusive liability

provision, 5 U.S.C. §8116(c), does not

directly bar a third-party indemnity

action against the United States.” Id.

at 199.

The Lockheed decision has little or

no persuasive value in the LHWCA context

for two major reasons: (1) the Lockheed

Court relied upon Weyerhaeuser SS Co., v.

United States, 372 U.S. 597 (1963), a

decision with no counterpart in the

LHWCA, and (2) the Congressional silence

on the immunity issue in the FECA context

is in sharp contrast to the substantial

leglislative history of the 1972 and 1984

LHWCA amendments.

-27-

Sy yt eee ee ee ee ee

The Court’s conclusions in Lockheed

regarding congressional intent do not

apply to the LHWCA. The Lockheed Court

noted that “in the 20 years since

Weyerhaeuser was decided, Congress has

not modified FECA’s exclusive-liability

provision to include third parties.” Id.

at 196. This congressional inactivity

was considered “particularly significant

in view of the 1966 codification of FECA

which included amendments to the new

section 8116 (c).” Id. 196.

The same aid to construction

utilized by the Court in Lockheed, when

applied to the interaction of case law

and congressional activity under the

LHWCA, mandates the conclusion that

section 905 (a) prevents contribution

actions against employers. Not only has

Congress been content to leave the rule

-28-

of no contribution intact, Congress has

amended the LHWCA to close whatever

loopholes have arisen in the employer’s

exclusive liability under the Act.

Hence, utilization of the Lockheed

Court’s construction principles for

discovering legislative intent generates

a stronger case for disallowing

contribution under the LHWCA than for

allowing contribution under FECA.

In Halcyon Lines v. Haenn Ship

Ceiling and Refitting Corp., 342 U.S. 282

(1951), the Court prohibited contribution

against an employer under the LHWCA. The

Court in Cooper Stevedoring [Inc., Vv.

Fritz Kopke Inc., 417 U.S. 106 (1974),

devoted the majority of its opinion to an

anaysis of Halcyon Lines in an effort to

resolve the issue of whether contribution

between joint tortfeasors exists in

-29°-

maritime actions for personal injuries.

The Cooper Court held that maritime law

recognizes contribution between joint

tortfeasors and that “our decision in

Halycon was, and still is, good law on

its own facts.” Id. at 115. The only

fact differentiating Halycon from Cooper

was that the contribution defendant in

Halycon was an employer protected by the

LHWCA. One who maintains that Halycon

Lines does not stand for the proposition

that section 905(a) bars contribution

actions against employers must explain

the meaning of Halycon in the post-Cooper

era. The Court in Edmonds v. Compagnie

Generale Transatlantique, 443 U.S. 255,

261 (1975) cited Halycon Lines for the

proposition that "the ship owner could

-30-

not circumvent the exclusive-remedy

provision by obtaining contribution from

the concurrent tortfeasor employer.”

A review of the legislative history

of the 1972 amendments to the LHWCA and

pre-1972 case law leaves no doubt that

Congress intended section 905(a) to bas

standard contribution actions against

employers. The 1972 amendments to the

LHWCA were primarily a response toa

series of Supreme Court decisions through

the 1940’s and the 1950’s that

effectively circumvented the exclusive

liability provisions of section 905. See

Seas Shipping Co., v. Sieracki, 328 U.S.

85 (1946); Ryan Stevedoring Co., v. Pan-

Atlantic S.S. Corp. 350 U.S. 120 (1956).

Although Ryan and Sieracki produced a

system in which stevedores effectively

lost their immunity from suit whenever a

-3l-

longshoreman sued a vessel owner for

unseaworthiness, during this same pre-

1972 period section 905 was consistently

interpreted to preclude contribution

actions against employers. See, e.g.

Murray v. United States, 405 F.2d 1361,

1364 (D.C. Cir. 1968)? Simpson Timber

Co., V. Partes, 390 F.2d 353 (9th Cir.

1968), cert. denied, 393 U.S. 858. Ocean

Drilling and Exploration Co., v. Berry

Brothers Oil Field Service, 377 F.2d 511

(5th Cir. 1967), cert. denied, 389 U.S.

849; Brown v. American-Hawaiian S.S. Co.,

211 F.2d 16 (3rd Cir., 954); American

Mutual Liability Insurance Ce. . Vv.

Matthews, 182 F.2d 322 (2nd Cir. 1950);

The prevailing if not universal approach

prior to the 1972 amendments was to

prohibit contribution because of the

employer immunity provided by section

-32-

905, regardless of whether the

contribution-plaintiff was a vessel-

owner. In fact, the largest block of

employees covered by the LHWCA prior to

1972 were private employees in the

District of Columbia. The LHWCA had

served as the compensation act for

private employees in the District of

Columbia since 1928. See 36 D.C. Code

§501 (1973), repealed by D.C. Law 3-77,

27 D.C. Reg. 2503 (1980). The District

of Columbia cases before 1972

consistently held that section 905 barred

contribution actions against employers

under the Act. See Coates v. Potomac

Electric Power Co., 95 F.Supp. 779

(D.D.C. 1951); Baird v. John McShane

Inc., 108 F.Supp. 553 (D.D.C. 1952).

-33-

Congress was cognizant of this

universal judicial interpretation of

section 905(a) at the time of the 1972

amendments. Congress in 1972 not only

refrained from altering this consensus,

but also added specific language to

section 905 for the express purpose of

eliminating the exception to employer

immunity that the Supreme Court had

developed in the Sieracki/Ryan line of

cases.

The policy reasons behind the 1972

amendments apply to contribution actions

in general. Congress specifically noted

the importance of diverting resources

from legal expenses to greater

compensation benefits. The gradual

liberalization of tort law and the

landward extension of the LHWCA in 1972

substantially increased the potential for

-34-

employee third party suits against

tortfeasors other than vessel owners, and

correspondingly increased the volume of

possible contribution claims against

employers. Allowing standard

contribution actions in all such cases in

which the employer is potentially

negligent unquestionably thwarts the

objective of Congress in enacting the

1972 amendments. Lockheed has not been a

source of confusion to Congress as

alleged by Raymark. Senator Nichols

explained that no amendment was made to

section 905 (a) because “the plain

meaning of the existing language

indicated that there should be no third-

party liability.” Cong. Rec. S$11621

(Sept. 20, 1984). Senator Nichols noted

that the 1972 amendments were for the

purpose of eliminating the problem of

-—35-

circular suits whereby employers would

pay workers’ compensation and then become

liable for additional amounts to third

parties. Id. Although Senator Hatch

noted that the 1984 legislation did not

specifically address the impact of

Lockheed, Senator Hatch explained that he

personally doubted whether Lockheed posed

a serious threat to longshore employers

because “the Courts have long recognized

that a longshore employer whose

concurring negligence contributed to an

employees injury cannot be sued as a

joint tortfeasor by the third party

seeking contribution.” Cong. Rec. S11623

(Sept. 20, 1984). Finally, the Senate

report on the legislation eventually

passed as the 1984 amendments’ stated

-36-

unambiguously that vessel owner liability

of shipyards should be eliminated because

the LHWCA should adhere closely

to the principle that an

employer should be responsible

for worker’s compensation

exclusive of any other recovery

against the employer...

S. Rep. No. 98-81 at 31 (98th Cong. list

Sess.).

As demonstrated above, the

legislative history and judicial

interpretation of the LHWCA is completely

distinct from FECA. While those acts may

be similar in language and in origin,

they have taken completely different

paths since their inception. The

decision in Lockheed does not render

appropriate a complete reversal of

everything that Congress and the courts

have done to protect employers under the

LHWCA over the last thirty-five years.

-37-

B. Maine law does not recognize an

equitable right of contribution when the

exercise of that right would frustrate

the public policies at the foundation of

both section 4 or section 905(a).

Raymark criticizes the First

Circuit’s conclusion that section 905(a)

bars contribution actions against

employers. As noted in Lockheed, the

question of whether or not an employer

may be liable for contribution to third-

party tortfeasors involves an assessment

of the applicable immunity provision and

the law of contribution. The parties in

Lockheed stipulated that a valid tort

indemnity claim existed against the

United States. Maine law, however, does

not recognize an equitable right of

contribution when the equities either are

not present or are outweighed by other

policy considerations.

-38-

An immunity provision such as

section 905 (a) can operate to bar

contribution on three distinct grounds:

(1) the employer’s direct immunity from

suit by employees eliminates the joint or

common liability necessary to

contribution actions; (2) either the

express language of the immunity

provision or clear legislative intent

bars contribution actions by third-

parties; or (3) allowing contribution

would dilute the protection afforded

employers from direct suit and the policy

reasons behind the basic trade-off in the

compensation act outweigh the policies in

favor of. contribution. Although many

courts tend to rely upon either the first

or second grounds for denying

contribution, section 9305(a) should be

interpreted as a bar to contribution

-39-

actions under Maine law on the third

basis without regard to the applicability

of other grounds. Significantly, section

4 of the MWCA bars’ contribution actions

because of the underlying public policy

and not because of a literal

interpretation of the express language of

section 4 or the absence of “common

liability”.

In barring contribution actions

against employers, the Maine Supreme

Judicial Court concluded that the

policies in support of contribution are

weaker than the policies behind the

employer immunity from direct suit:

We rule that the Legislature, in

imposing absolute liability on an

assenting employer without reference

to fault in return for the

employee’s speedy recovery of fixed

but limited benefits for any

industrial injury, has established a

comprehensive scheme for the

distribution of loss by industrial

accidents to the ultimate benefit of

the employer, employee and the

-40-

public at large. Under such

circumstances, for this Court to

shift part of the third-party

tortfeasor’s liability onto the

assenting employer merely on the

basis of the equitable doctrine that

parties whose concurrent negligence

has caused an injury should bear a

like burden in redressing the same,

would tend to frustrate pro tanto

the purposes of the Act. .. . This

statutory policy providing the

employer with a definitive liability

for payment of benefits predictable

with some degree of accuracy in all

industrial accidents and resting

upon the employer’s immunity from

further damages beyond the call of

the compensation act transcends any

counteracting judicial

considerations of equitable

principles.

Roberts v. American Chain & Cable Co, 259

A.2d 43,49-50 (Me. 1969). Since

contribution in Maine is based upon

equitable principles and the equities do

not warrant frustration cf the purposes

of the MWCA, the right of contribution

does not exist against assenting

employers under the MWCA. Whether the

same result obtains under the LHWCA

-—4 1l-

depends upon a comparison of the policy

reasons behind section 905(a) and section

4.

The strength of the policies

favoring contribution in Maine is not

enhanced merely because the immunity

relied upon derives from section 905(a)

rather than section 4. The right to

contribution under Maine law cannot

overcome section 905(a) for the same

reasons it could not overcome section 4.

The LHWCA and MWCA both impose absolute

liability on an assenting employer

without reference to fault in return for

established benefits. The essence of the

employer’s quid pro quo is “absolute but

limited and determinate liability.” Id

at 49. Holding an assenting employer

answerable in contribution “would tend to

frustrate pro tanto” the purposes of the

-42-

LHWCA to the same extent as the MWCA. If

Maine assigns greater significance to the

public policy underlying the MWCA than to

its own right of contribution, federal

courts should not hesitate to elevate the

policies underlying section 905(a) above

that same right of contribution. As

demonstrated above, the absence of

contribution against MWCA employers flows

not from the technical common liability

rule or express statutory language, but

rather from the weight of the policies

supporting section 4, the very same

policies at the foundation of section

905(a).

V. THE ISSUE OF WHAT EMPLOYER IMMUNITY

PROVISIONS APPLY IN CASES WITHIN THE

CONCURRENT COVERAGE OF THE LHWCA AND A

STATE COMPENSATION ACT DOES NOT POSE A

SUBSTANTIAL FEDERAL QUESTION WORTHY OF ©

SUPREME COURT REVIEW.

-43-

Since the asbestos cases involve the

concurrent coverage of the LHWCA and the

MWCA, the employer immunity provided by

Maine compensation law bars contribution

actions against BIW regardless of the

interpretation given to section 905(a) of

the LHWCA. Section 4 of the MWCA

prohibits non-contractual actions for

contribution or indemnity against

assenting employers under the Act. See

McKellar v. Clark Equipment Co., 472 A.2d

411,416 (Me. 1984). Despite the

concurrent coverage of the state and

federal compensation acts, Raymark

maintains that an employee’s election of

benefits under the LHWCA precludes

utilization of the employer immunity

provision of a state act for the purpose

of barring contribution actions. That

proposition is inconsistent with

-44-

generally accepted principles of worker’s

compensation law. Raymark finds the

invocation of Section 4 of the MWCA

“troublesome” because Drake did not apply

for or receive MWCA benefits. BIW,

however, was an assenting employer under

the MWCA as well as the LHWCA. As with

all compensation acts, the immunity

provided by section 4 is not triggered by

a particular employee’s decision to

pursue compensation benefits: See 2 A.

Larson, The Law of Workmen’s Compensation

§65.14 at 12-9 (1983). Just as section 4

protects the employer regardless of

whether a compensation claim is filed at

all, that protection does not evaporate

simply because the employee seeks

compensation under the LHWCA.

-45-

Raymark r var? oly asserts that the

application of section 4 in the Drake

case violates the quid pro quo at the

foundation of compensation acts. As

explained above, the employer immunity

does not depend upon the filing of a

compensation claim. For example, a

covered employee under the LHWCA who

voluntarily foregoes his compensation

remedy has no right to bring a direct

tort action against his employer.

Consistency requires Raymark to take the

untenable position that any covered

employee who voluntarily decides not to

file a compensation claim for a covered

injury has thereby lost his quid pro quo

and therefore may recover in tort against

his employer. Since Drake or his widow

could have brought a compensation claim

-46-

under the MWCA, BIW may avail itself of

the protection from suit afforded by that

Act.

The approach advocated by Raymark

requires an interpretation of the 1972

Amendments exactly opposite of that

intended by Congress. In 1972, Congress

eliminated every form of contribution

action against employers that had been

recognized by the Courts up to that point

in time. As noted by Raymark, the 1972

Amendments also expanded coverage of the

LHWCA shoreward to create a “broad zone

{

of concurrent jurisdiction.” Raymark

Petition at 42. A vast number of

compensation cases previously covered

only by the state act are now covered by

both state and federal compensation acts.

In every case covered by only the state

act prior to 1972, BIW was’ entitled to

-47=-

full immunity from contribution claims by

third-party tortfeasors. According to

Raymark, the 1972 Amendments effectively

overruled this state law protection of

employers in every case within the zone

of concurrent coverage in which the

employee initially elects compensation

under the federal act. When analyzed in

conjunction with the landward extension

of the LHWCA, Raymark’s proposal that an

employee’s compensation election control

third-party contribution rights recasts

the 1972 Amendments as a vitiator of

employer immunity, a remarkable feat of

transformation for legislation designed

to eliminate claims against employers and

channel resources to compensation

benefits.

VI. NO CONFLICT AMONG THE CIRCUITS

EXISTS ON THE QUESTION OF WHAT EMPLOYER

IMMUNITY PROVISION APPLIES IN CASES

WITHIN THE CONCURRENT COVERAGE OF THE

LHWCA AND A STATE COMPENSATION ACT.

-48-

Contrary to Raymark’s assertions, no

conflict exists among the Circuits on

this issue. The Fifth Circuit in Jenkins

v. McDermot Inc., 734 F.2d 229 (5th Cir.

1984) addressed an entirely different

issue. The employee of a subcontractor

was injured by the negligence of a

general contractor under circumstances

giving rise to the concurrent coverage of

the Louisiana Compensation Act and the

LHWCA. The Louisiana Act would have

provided immunity to the non-employer,

general contractor, whereas the the LHWCA

protected only the actual employer. The

employee sought compensation benefits

under the LHWCA. The Court held that the

employee could sue the general contractor

because he elected federal benefits.

-49-

A key distinction exists between

Jenkins and Drake. The issue in Jenkins

was the recovery rights of the employee.

The issue in Drake is the contribution

rights of a third party against an

employer. As concerns limitations on the

recovery rights of an employee, the

employee’s election of one compensation

act or another plays a legitimate role.

Raymark, however, attempts to assign

significance to the election of the

employee even though the issue allegedly

dependent upon the election, that is the

employer’s liability to third-parties,

has absolutely nothing to do with the

benefits or recovery available to the

employee. Section 933 of the LHWCA

expressly preserves an employee’s claims

against non-employer third parties. Once

the employee elects federal benefits,

-50-

thereby obtaining’ the rights provided by

section 933, state law provisions

directly contrary to section 933 are

preempted. Not a single aspect of the

Jenkins decision conflicts with the First

Circuit’s decision in Drake.

CONCLUSION

For the foregoing reasons, BIW

respectfully submits’ that this Court

should deny Raymark’s Petition for A Writ

of Certiorari to review any aspect of the

decision of the Court of Appeals.

Respectfully submitted,

NORMAN & HANSON

i : ny

—,

‘ As ‘ j ;

. ,

> eke y™ 4 \ ; ’ a,

— —

James D. Poliquin

Attorneys for Respondent

Bath Iron Works Corp.

mY rt oe one c 7S RE Te

CERTIFICATE OF SERVICE

I, James D. Poliquin, Esq., certify

that on or before the 22nd day of March,

1986, I mailed, postage prepaid, forty

(40) copies of the Respondent’s Brief In

Opposition to the Petition for Writ of

Certiorari tc the Clerk of the Supreme

Court of the United States, One First

Street N.E., Washington, D.C. 20543, and

mailed three (3) copies to Benjamin

Thompson, Esq., Thompson, McNaboe &

Ashley, P.O. Box 447, Portland, ME

04112, counsel for Petitioner, Raymark

Industries, Inc., and mailed three (3)

copies, postage prepaid, to Peter J.

Rubin, Esq., Bernstein, Shur, Sawyer &

Nelson, One Monument Square, Portland,

Maine 04101, counsel for Owens-Illinois,

Inc., Celotex Corporation, Pittsburgh

Corning Corporation, H. K. Porter

Company, Inc. Southern Textile

Corporation, Inc. , Keene Building

Products corporation and Owens-Corning

Fiberglas Corporation.

\ —

a oe |

++ | '(/ i< » FF . TVR An—~_

wv y VY

James D. Poliquin~

\

STATE OF MAINE

CUMBERLAND, ss.

Personally appeared the above-named

James D. Poliquin, who subscribed and

swore to this instrument this 20th day of

March, 1986.

Before me,

A

Notary Public

' wi. =

AY Aba VSTON COTES OST S, a

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

Civil No. 78-98 P

ROLAND J. BERNIER and DESNEIGE L.

BERNIER, Plaintiffs

Vv.

JOHNS-MANSVILLE SALES CORP., et al.,

Defendants

ELLIS M. MOORE and CELIA MOORE,

Plaintiffs

Civil Nos. 79-55 P

and

831-0045P

(Consolidated)

RAYMOND E. JONES and FRANCES JONES,

Plaintiffs

Vv.

Civil No. 79-73 P

JOHNS-MANVILLE SALES CORP., et al.,

Defendants

RAYBESTOS~MANHATTAN, INC.,

Defendant and Third-Party

Plaintiff,

Vv.

BATH IRON WORKS CORPORATION

Third-Party Defendant

i ee ee ee ee oe

MEMORANDUM OF OPINION AND ORDER OF THE

COURT

-1 a-

GIGNOUX, C.J.

Plaintiffs in these three actions

have brought suit against various

manufacturers and supplers of asbestos-

containing products for injuries

allegedly sustained from exposure to

their products while employed at Bath

Iron Works (BIW), a privately-owned

shipyard in Bath, Maine. Plaintiffs seek

recovery of compensatory and punitive

damages on theories cf negligence, breach

of warranty, and strict liability.

Jurisdiction is predicated on diversity

of citizenship. 28 U.S.C §1332(a).

One of the defendants, Raybestos-

Manhattan, Inc. (R-M), has filed in each

action -a third-party complaint against

BIW seeking contribution and indemnity.

Presently before the Court is a motion

for summary judgment filed by BIW

pursuant to Fed. R. Civ. P. 56, in

support of which BIW asserts that the

third-party action is’ barred by the

exclusive liability provision of Section

905(a), 33 U.S.C. §905(a), of the

Longshoremen’s and Harbor Workers’

Compensation Act (LHWCA), 33 U.S.C. §901

1

et seq. The record consists of the

pleadings, affidavits, answers to

interrogatories, deposition excerpts, and

admissions on file.

Each of the third-party complaints,

which are identical, contains six counts.

The theories of recovery against BIW

asserted by R-M in the first five counts

have previously been rejected by this

1yt is undisputed that the plaintiff

employees were covered by LHWCA and have

received workers compensation benefits

under the Act.

-3 ar

:

:

Court. See Austin v. Johns-Manville

Sales Corporation, 508 F. Supp. 313 (D.

Me. 1981). Undaunted by the cCourt’s

prior ruling, R-M in Count VI of the

present third-party complaint seeks

contribution and indemnity by BIW on the

theory that BIW was the owner pro hac

vice of the vessels under construction or

undergoing repair in its yard on which

plaintiffs worked, and is therefore

subject to liability for negligence under

Section 905(b) of the LWHCA, 33 U.S.C.

§905(b).

For the reasons to be stated, the

Court has concluded that BIW was not

during the relevant periods the owner pro

hac vice of vessels being constructed or

repaired in its yard and that the cause

of action asserted in Count VI of R-M’s

third-party complaints is therefore

—4 a-

barred by Section 905(a) of the LHWCA*.

BIW’s motion for summary judgment is

therefore granted.

I.

The Facts

The record presently before the

Court discloses that plaintiff Roland

Bernier, now deceased, worked for BIW as

a boiler assembler from 1942 to 1945;

plaintiff Ellis Moore worked as a pipe

coverer from 1955 to the present time.

The record does not indicate specifically

on which vessels these employees worked.

Generally, during the period of their

employment, however, BIW constructed new

vessels and repaired or overhauled

2

In light of the Court’s determination

that BIW was not an owner pro hac vice of

the vessels upon which the plaintiff

employees may have worked, it is

unnecessary to consider the other grounds

asserted by BIW in support of its summary

judgment motion.

additional vessels for the United States

Navy and for commercial shipowners. The

record shows the following with respect

to the control assumed by BIW over

vessels being constructed cr overhauled

in its yard.

A. U.S. Navy Vessels

When BIW undertakes to construct or

overhaul a ship for the U.S. Navy, the

parties enter into a detailed contract

which sets forth procedures and schedules

to be followed during all phases of the

work, and which defines the rights and

duties of both parties. Generally, the

contracts provide that BIW is responsible

for adopting and enforcing adequate

health and safety regulations (at a

minium meeting OSHA regulations) and that

Navy personnel have access to the vessels

undergoing construction or repair.° BIW

does not hold legal title to any newly

constructed or overhauled naval vessel at

tas “+

is facility.

To oversee and administer the

contract, the Navy maintains a permanent

office at BIW. The Supervisor of

Shipbuilding with a staff of over 200

closely monitors the work under the

contracts. The Supervisor may

unilaterally order changes in the

: pinaunetbatsenaenans

See R-M Exhibit E at art. 17, 20;

Exhibit J. at art. J-38, J-42. A 1948

contract to construct an experimental

Motor Torpedo Boat also required BIW to

purchase collision insurance to cover

operation of the vessel during the test

runs. See R-M Exhibit K at art. 14.

This requirement has not appeared,

however, in more recent construction or

repair contracts.

“Affidavit of William F. Mussenden, 44 3,

* ED Oe ee oe

contracts, or stop

of the ships at the

work. > Any movement

yard requires advance

of

notification and approval the

Supervisor. ° The Supervisor and his

staff inspect work regularly; attend all

tests performed pursuant to the

contracts; determine whether and when

trial runs of the vessels will take

place; and closely monitor the trial

runs.’ The Supervisor also acts as

Squadron commander of all ships in the

yard.

1. New Construction

>See Supplemental Affidavit of William F.

Mussenden, 44 2, 3.

See Affidavit of W

"see Affidavit of

13-16; Third-Party

at 2002-09.

Ts TV«4 ~

William

Defen

59 2 : “

liam Rich, 46.

Rich, 4 6-10,

lant’s Exhibit C,

Construction of a new vessel begins

in the BIW yard with fabrication of the

hull, laying of the keel, and

installation of the propulsion

machinery. ® When the hull is launched,

the various combat and operation systems

are installed.” BIW workcrews are, of

course, in control of the launched hull

while work is in progress. Navy

personnel, however, have unlimited access

and closely supervise the progress of the

work. Asbestos insulation is done after

the hull is Launchea. *°

Ssee Third-Party Plaintiffs’ Exhibit J,

at art. J-49.

°r4.; Deposition of John R. Newell, at

54-55.

“neposition of John R. Newell, at 54-55.

aaa — SPD NYS PERE ET TT SO RUN OEE EINE EE A Coe RR Ee ean moms : anieabeabliess

If any ship must be moved from berth

to berth within the yard during the

course of construciton, BIW must notify

the Supervisor and obtain his permission.

Tugs hired by BIW, sometimes assisted by

a small BIW boat, do the principal

moving. *+

Subsequent phases of construction

specified in the contract call for

testing of the vessel, which requires

that it be operated. Two types of

builder’s trials are performed: “dock”

trials and “sea” trials.

Dock trials involve testing the

ship’s systems while it is secured to the

dock. BIW draws up a proposed agenda and

submits it to the Supervisor for his

approval. The proposed agenda outlines

in detail the specific tests to be

14

iL + . . . —

ry + £ TA a AT ors + r

VeEposition Of JOnNN KR. Newell, av 59.

Py Oe

*. =r

¢ a . nies athe he CET NP oT > Pa RCE oes

Seon el : ss

performed, and the manner and schedule of

implementation. ?? The Supervisor reviews

the proposed agenda, determines whether a

dock trial is appropriate at that time,

and then makes any modifications in the

proposed agenda deemed necessary.*> BIW

personnel conduct the trial in strict

accordance with the final agenda while

the Supervisor’s representatives closely

monitor the trial.

Sea trials involve taking the new

vessel to sea for several days to

detemrine whether the contract

specifications have been met. Again, BIW

draws up a proposed trial agenda and

submits it to the Supervisor for comment

— :

12a efidavit of Cecil Fullerton, 49 7,

©

L354.

-1l1a-

Ie ey meee now . . we

and approval. +4 These agenda schedule in

minute detail the tests to be performed

as well as all vessel manuevers. +? BIW

employees drawn from the various

departments comprise the vessel’s crew,

and BIW’s yard captain, William Rich

serves as the captain. The Supervisor

reviews and approves’ the crew list.

Although the BIW captain and crew

actually operate the vessel during a

trial, they follow strictly the schedule

of the agenda which even prescribes the

order of firing engines and vessel

speea.+® The Navy representatives aboard

_—

14, ¢fidavit of William Rich, 999, 10;

Affidavit of Cecil Fullerton, 497, 8.

toa ffidavit of William Rich, at appendix

B and C.

See Affidavit of William Rich, at 16,

appendix B and C.

-12 a-

VEE NEC TNA NOE PND TN NDE TG

the vessel during these trials have

authority to modify a trial in progress,

and even to terminate a trial.

Upon successful completion of the

builder’s trials, the contracts call for

a “preliminary acceptance” trial. This

trial essentially repeats the sea trial

and serves as the final trial run before

delivery of the vessel to the Navy. BIW

submits a proposed trial agenda to both

the Supervisor andto the Navy Board of

Inspection and Survey (INSURV) in advance

of the trial. INSURV determines whether

a trial is appropriate; makes desired

modifications in the agenda; and finally

approves the trial.?’ As with the

earlier sea trial, BIW submits for

approval a list of crew members.

Representatives of the Supervisor and

17 See Affidavit of Cecil Fullerton, 4 9.

GALOIS POY IS Fe SEA AD a

INSURV monitor operation of the ship, and

have authority to modify or terminate the

trial.

Delivery is the final stage of BIW

responsibility under a contract.

Although at the present time, the Navy

accepts vessels at BIW’s facility, prior

to 1969 BIW delivered the vessels to the

Boston Naval Shipyard. Again, approved

BIW employees comprised the crew and Rich

was the captain; representatives of the

Supervisor and other naval personnel,

including some of the vessel’s

prospective officers were aboard during

the trips to Boston. 7+®

18the record also indicates that prior to

its acquisition of drydock facilities in

1980 BIW subcontracted sub-waterline

painting work to other shipyards along

the East coast. Trips to these

facilities were conducted in the same

manner as the sea trials discussed above.

Permission to make the trip was secured

in advance from the Supervisor. Rich was

MIP CAD MARYAR ae) CE lg ARE a ETT ITY

IVI ODN IEE TY PONY OL TT RYE ON ODS ES Peay Neh ey ee

2. Repair and Overhaul

Navy ships that are brought to Bath

for repair and overhaul fall into one of

two categories. Some vessels remain

commissioned during the repair period.

The officers and crew of these vessels

stay with the ship during the period.

The Navy crew controls access to the ship

and is responsible for security. Regular

watches are maintained, as are the ship

logs. The Navy crew mans the vessel

during all trials, and may assist in some

of the repair work. R-M concedes that

BIW is not the owner pro hac vice of Navy

vessels which remain commissioned.

(footnote continued from previous page)

the captain; approved BIW employees were

the crew; Supervisor personnel attended

and tested the ship’s' systems. Navy

representatives approved of the drydock

facilities before docking. See Affidavit

of William Rich, at 9 19.

“15 a-

Vessels which require more extensive

overhaul customarily are “decommissioned”

shortly after arrival at the yard. When

the vessels arrive, they are delivered

over to the custody of the Navy

Supervisor. The crew is gradually

dismissed in phases and reassigned to

duty on other. ships. The logs are

removed. When the contract work is ready

to proceed, the Supervisor turns the

vessel over to BIW in accordance with the

contract. Six months before completion

of the contract work, a nucleus crew of

officers returns to the shipyard; one

month before completion, a skeleton

enlisted crew arrives. The ship is

recommissioned after completion of the

contract work and delivery to the Navy.

-16 a-

>, eet Oe

“«

The contracts require BIW make

adequate provisions for security and for

the health and safety of workers during

the repair period, and that Navy

personnel at all times have access to

vessels undergoing repair. Once the

overhaul and repair work nears the

appropriate stage, the same dock, sea and

preliminary acceptance trials described

above with respect to newly constructed

vessels are performed on the overhauled

vessels.

B. Commercial Vessels

The procedure for construction and

overhaul of commercial vessels parallels

closely that for naval vessels. BIW

negotiates a contract with the owner that

prescribes in similar detail the work to

be done, the manner in which it is to be

done, and the schedule for completing the

Oe ee

various stages of the work. The owner

maintains a representative at the

shipyard during all phases of the

contract work. This so-called owner’s

representative and his assistants monitor

BIW’s performance under the contract in

the same manner that the Navy Supervisor

and his staff monitor Navy Contracts. ??

When required to move vessels in the yard

from berth to berth, BIW notifies and

obtains permisssion from the owner’s

representative. ~°

Dock and sea trials are conducted in

the same manner for newly constructed

commercial vessels as for naval

21

vessels. Rich is the captain; BIW

19, efidavit of William Rich, ¢ 22.

2074. at q 23.

elsea trials were not conducted on the

few commercial vessels which BIW

-18 a-

employees are the crew. Although the BIW

employees actually man and operate the

vessel during all phases of a trial, they

do so strictly in accordance with the

trial agenda, which sets out fully and

precisely all manuevers to be undertaken.

The owner’s representative and his staff

must approve all agendas; are present

during the trials; and have authority to

modify a trial while in progress or to

terminate the trial and order a return to

port. 7

Upon completion of the new

construction or overhaul, the vessel is

delivered to the owner at the BIW

(footnote continued from previous page)

overhauled from 1950 to the present time.

Most of BIW’s commercial work involved

new construction. See Deposition of

William F. Mussenden, 9 2.

e2affidavit of William Rich, 44 24-26;

Affidavit of Edward Atkinson, 44 3-6.

“19 a-

"7 — eee a ae oA Se A eee eee a ee ee oe se oe, oe Ne ant

shipyard. BIW does not hold legal title

to any newly constructed or overhauled

commercial vessel at any time.*>

Ii.

The Law

Under Section 905(b) of the LHWCA,

an employee may sue a “vessel” for its

negligence. 74 The term “vessel” is

defined by Section 902(21) of the Act to

include “said vessel’s owner, owner pro

23a ffidavit of William F. Mussenden, 4]

4,5.

24 section 905(b) aprovies in relevant

part as follows:

(b) In the event of injury to a

person covered under this chapter caused

by the negligence of a vessel, then such

person, or anyone otherwise entitled to

recover damages by reason thereof, may

bring an action against such a vessel as

a third party in accordance with the

provisions of section 933 of this titled,

and the employer shall not be liable to

the vessel for such damages directly or

indirectly and any agreements or

warranties to the contrary shall be void.

33 U.S.C. § 905(b) (emphasis added).

-20 a-

hac vice, agent, operator, charter or

bare boat charterer, master, officer, or

crew member.” 33 U.S.C. §902 (21)

(emphasis added) .°> R-M contends that

BIW, although concededly not the owner of

vessels undergoing construction or repair

in it’s shipyard, is the owner pro hac

vice of such vessels; is a vessel as

defined by Section 902(21); and

therefore, in its capactity as a vessel,

is subject to liability to its employees

for negligence under Section 905(b).

See, e.g., Reed v. Yaka, 373 U.S. 410

2 > section 902(21) reads as follows:

(21) The term “vessel” means any

vessel upon which or in connection with

which any person entitled to benefits

under this chapter suffers injury or

death arising out of or in the course of

his employment, and said vessel’s owner,

owner pro hac vice, agent, operator,

charter or bare boat charterer, master,

officer, or crew member.

33 U.S.C. §902(21) (emphasis added).

-21 a-

ee

eee ae ee eS ee Sl lee ee ee ee a eee eee ee ee Se OP ee

(1963); Griffith v. Wheeling Pittsburg

Steel Corp., 521 F.2d 31 (3rd Cir. 1975),

cert. denied, 423 U.S. 1054 (1976).

There is no question that as a

compensation-paying employer, BIW is

immune, by reason of Section 905(a) of

the LHWCA, from third-party claims for

contribution, at least to the _. extent

that, as an employer, it is immune from

common law liability to its employees.

Halcyon Lines v. Haenn -Ship Ceiling and

Refitting Corp., 342 U.S. 282, 285-86

(1952); Austin v. Johns-Manville Sales

Corp., supra, 508 F. Supp. at 315. Thus,

the parties agree that BIW may be found

liable for contribution to R-M only if

BIW, as a “vessel,” could be found liable

to the plaintiff employees. See

Griffith v. Wheeling Pittsburgh Steel

Corp., supra, 521 F.2d at 44.

-22 a-

Although the LHWCA does not define

“owner pro hac vice,” the governing legal

principles are well settled. An owner

pro hac vice is one who assumes by

charter or otherwise “exclusive

possession, control, command and

naviagation” of a vessel for a specific

period of time. Stephenson v. Star-Kist

Caribe, Inc., 598 F.2d 676, 679 (1st Cir.

1979); Guzman v. Pichirilo, 369 U.S.

698, 699, 700 (1962); G. Gilmore and C.

Black, Jr., The Law of Admiralty, 239-43

(2d ed. 1975). An owner pro hac vice

“has complete--though perhaps only

temporary--dominion over the vessel

entrusted to him. He commands her

navigation and is entitled to avail

himself fully of her services.” Olsen v.

Todd Shipyards cCorp., 435 F. Supp. 568,

571 (W.D. Wash. 1977). “It is therefore

-23 a-

tantamount to, though just’ short of, an

outright transfer of ownership.” Guzman

v. Pichirilo, supra, 369 U.S. at 700.

It is clear onthe instant record

that BIW did not assume the kind of

exclusive control over vessels being

constructed or repaired in its yard to

have made it the pro hac vice owner

thereof. BIW’s dominion over these

vessels are confined to the narrow sphere

of carrying out its obligations under its

construction or repair contracts.

Control of the vessel clearly remained

with the United States Navy or the

private shipowner. BIW could not, for

example, use a vessel for its own

commercial ventures or for any other

purpose normally within the prerogative

of an owner. Compare Olsen v. Todd

Shipyards Corp., supra, 521 F.2d 31 and

-24 a-

Blair v. United States Steei Corp., 444

F.2G€ 1390 (3rd Cir. 1971) (per curiam),

cert. denied, 404 U.S. 1018 (1972).

BIW’s' control over the vessels was

tightly circumscribed by the contracts

and was subject to the owner’s ultimate

authority. BIW could not move vessels

within the yard without first obtaining

approval from either the United States

Navy Supervisor or the private owner’s

representative. Although BIW crews

manned the vessels during the dock, sea

and acceptance trials, operation of the

vessels during these trials was mandated

by contract and was strictly in

accordance with agendas approved by the

Supervisor of the owner’s representative.

In short, the full-time presence of the

Navy Supervisor or private owner’s

representative; and the authority of the

-25 a-

Supervisor or owner’s representative; the

constant inspection and supervision of

the work by the Supervisor or owner’s

representative; and the authority of the

Supervisor owner’s representative to

order changes in the work or to stop work

entirely plainly establish that BIW did

not have the type of exclusive “control”

over these vessels which is required for

pro hac vice ownership. Accord, Bossard

v. Port Allen Marine Service, Inc., 624

F.2d 673, 674 (5th Cir. 1980) (per

curiam) ; Rao Vv. Hillman Barge x

Construction Co., 467 F.2d 1276, 1277

(3rd Cir. 1972) (per curiam); Bailey v.

Johns-Manville Sales Corp., Civ. No. 76-

155-NN, slip op. at 5 (E.D. Va. Feb. 12,

1982); Olsen v. Todd Shipyards Corp.,

supra, 435 F. Supp. at 571-72, 572 n.15.

But see Simko v. C & C Marine Maintenance

-26 a-

Co., 484 F. Supp. 401, 403-04 (W.D. Pa.),

aff’d, 639 F.2d 772, 775 (3rd Cir. 1980).

The Court holds that BIW was not the

owner pro hac vice of vessels being

constructed or repaired in its yard

during the periods of time these

plaintiffs were employed by BIW; that BIW

was not a “vessel” within the meaning of

Section 902(21) of the LHWCA; and that

therefore BIW is not subject to liability

to R-M for contribution and indemnity

under Section 905(b) of the Act.

III.

ORDER

The Court being persudaded that the

pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, show that

there is no genuine issue as to any

material fact and that BIW is entitled to

-2/ a-

tae ee a

a judgment as a matter of law, Fed. R.

Civ. P. 56(c), BIW’s motion for summary

judgment dismissing R-M’s third-part

complaints in the above-entitled actions

is granted and the Clerk of this Court is

directed to enter judgment forthwith

dismissing said third-party complaints

with prejudice.

Dated at Portland, Maine this 9th

day of August 1982.

United States District Judge

-28 a-

a a _— a ye

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

In re ALL MAINE ASBESTOS LITIGATION )

(BIW Cases) )

MEMORANDUM OF OPINION AND ORDER OF THE

COURT

GIGNOUX, Senior District Judge

Presently pending in this Court are

approximately fifty actions which have

been brought by present and former

employees, and the representatives of

deceased employees, of Bath Iron Works

(BIW), a private shipyard in Bath, Maine,

against various manufacturers and

suppliers of asbestos-containing

products. Plaintiffs seek recovery of

compensatory and punitive damages for

-29 a-

injuries the employees allegedly

sustained from exposure to defendants’

products during the course of their

employment at BIW. The complaints assert

causes of action based on negligence,

strict liability, and breach of express

and implied warranties. Jurisdiction is

predicated upon diversity of citizenship.

28 U.S.C. §1332(a); Austin v. Unarco

Industries, Inc., 705 F.2d 1.3 (tist

Cir.), cert. dismissed, 104 S. Ct. 34

(1983).

In addition to denying any liability

to the plaintiffs, certain defendants

have filed third-party actions against

BIW seeking contribution and indemnity.

With the Court’s approval, a model

third-party complaint has been filed in

each plaintiff’s action. The model

third-party complaint contains six

-30 a-

counts. In the first four counts,

defendants allege that BIW “willfully,

wantonly, recklessly and negligently”

failed to exercise due care in the

discharge of its duty to protect the

health and safety of its employees by

failing to warn them of the dangers from

exposure to asbestos products and by

failing to protect them from its dangers.

In Count I, defendants seek pro tanto

relief, asserting that they are entitled

to have any judgment for compensatory

damages recovered against them by a

plaintiff reduced by the amount of BIW’s

worker’s compensation lien, or,

alternatively, that they are entitled to

a judgment against BIW in the amount of

that lien. Count II seeks contribution

or indemnity by BIW for any punitive

damages recovered by a plaintiff against

-31 a-

defendants. Count III seeks indemnity by

BIW to the extent of any judgment

recovered by a plaintiff against

defendants for loss of consortium or

consequential or punitive damages. In

Count V, defendants allege that BIW’s

medical care of its employees was

negligent and seek contribution and

indemnity by BIW on that basis. In Count

VI, defendants seek contribution and

indemnity by BIW as the owner pro hac

vice of the vessels in its shipyard on

which the employees worked.

This is the “third round” of an

ongoing dispute between defendancs and

BIW concerning BIW’s third-party

liability for its employees’ asbestos-

related injuries. In the “first round,”

the Court granted BIW’s motion for

summary judgment and dimissed defendants’

third-party claims as barred by the

excluive liability provision of the

Longshoremen’s and Harbor Workers’

Compensation Act (LHWCA), 33_—«U«.8.C.

905(a). Austin v. Johns-Manville Sales

Corp., 508 F. Supp. 313 (D. Me. 1981).?

The “second round” was precipitated by

the subsequent holding of the United

States Supreme Court in Lockheed Aircraft

Corp. v. United States, U.S. ,103 S.

Ct. 1033, 51 U.S.L.W. 4206 (U.S. Feb. 23,

1983), that the exclusive liability

provision of the Federal Employees

Compensation Act (FECA), 5 0.8.€.

§8116(c), does not bar an indemnity

action by an unrelated third party

against the United States. Being

it is undisputed that the BIW employees

and deceased employees in thes? cases

were covered by the LHWCA, 33 U.S.v. §901

et seq.

persuaded that the analysis in Austin was

inconsistent with the teaching of

Lockheed, this Court granted a motion for

reconsideration of its Austin ruling,

vacated its prior order, and denied BIW’s

motion for summary judgment. All Maine

Asbestos Litigation (BIW Cases), Bench

Ruling (D. Me. Mar. 9, 1984) .? At the

same time, the Court reserved ruling on

BIW’s newly-raised defense that it was

protected from third-party claims against

it as barred by section 4 of the Maine

Act. The record before the Court

consists of the pleadings and three

affidavits filed by BIW in support of its

motion. The issues have been

comprehensively briefed and argued.

“A copy of the cCourt’s March 9, 1984

Bench Ruling is attached as Appendix A.

For the reasons to be stated, the

Court has concluded that so much of BIW’s

motion as seeks dismissal of defendants’

claims for contribution and indemnity

must be granted, but that so much of the

motion as seeks dismissal of the claims

for pro tanto relief must be denied.

Le

The Court must begin its analysis

with the Supreme Court’s Lockheed

opinion. In Lockheed, the Court held

only that "”FECA’s exclusive liability

provision, 5 U.S.C. §8116(c), does not

directly bar a third-party indemnity

action against the United States.”

U.S. , 203 Ss. ct. at , 51

U.S.L.W. at 4208. Relying on its review

of the legislative history, it found that

"“(t)here is no evidence whatever that

Congress was concerned with the rights of

-35 a-

unrelated third parties,’” and concluded

that section 8116(c) “had been intended

to govern only the relationship ‘between

the Government on the one hand and its

employees and their representatives or

dependents on the .other.’” Id. at

Ct. at , 51 U.S.L.W.

at 4207 (quoting Weyerhauser S.S. Co. v.

United States, 372 U.S. 597 1601 (1963)).

Thus, contrary to defendants’ contention,

Lockheed did not affirmatively confer

upon Lockheed a substantive indemnity

claim against the United States. Indeed,

the Court expressly stated that the

validity of Lockheed’s underlying claim

for indemnity was not before it. Id. at

, 403 8S. CE. at , 51 U.S.L.W. at

4208 n.8. Rather, to determine that

question, the Court made clear that

recourse must be had to the “governing

substantive law.” Id. at , 51 U~.S.L.W.

at 4208.

In its March 9, 1984 ruling, this

Court held that the Lockheed

interpretation of FECA’s exclusive

liability provision applied with equal

force to the “nearly identical” LHWCA

provision, 33 U.S.C. §905(a)). See

Lockheed, U.S. at

at ,51 U.S.L.W. at 4207. This

Court also concluded that "there is no

evidence either inthe language of the

statute or in the congressional history

that Congress addressed itself to, or was

in any way concerned with, the rights of

non-vessel owner third parties.” All

Maine Asbestos Litigation (BIW Cases),

Bench Ruling, see infra Appendix A_ to

Decision of July 5, 1984 at A-61. It

follows that, as in Lockheed, it is to

the governing substantive law that the

Court must look to determine the

availability to defendants of a third-

party claim for indemnity or

contribution against BIW. Since

jurisdiction of these cases is based upon

diversity of citizenship, Austin v.

Unarco Industries, ° F.2d at 3,

the governing substantive law is that

which a Maine court would apply. Erie

Railroad Co. v. Tompkins, 304 U.S. 64

(1938).

3although in Lockheed the Supreme Court

was concerned only with a third-party

indemnity claim, it is clear that the

holding is equally applicable to a

third-party contribution clain. See

Johnns-Manville Sales Corp. v. United

States, No. C-81-4561, slip op. at 10

(N.D. Cal. Jan. 6, 1984), reprinted in

Asbestos Litigation Reporter 7, 721, 7,

724 (Jan. 20, 1984); see also Prather v.

The Upjohn Co., MCA No. 81-0211, slip op.

at 3 (N.D. Fla. Feb. 15, 1984).

Il.

It is undisputed that BIW is a

compensation-paying employer covered by

the Maine Act, 39 Me. Rev. Stat. Ann. §1

et seq (1978 & Supp. 1983-84). Section 4

of the Maine Act provides that employers

who provide workers’ compensation “shall

be exempt from civil actions because of

such injuries either at common law or

under sections 141 to 148, under Title

14, sections 8101 to 8118 or under Title

18-A, section 2-804.” 30 Me. Rev. State.

Ann. §4 (Supp. 1983-84). The Supreme

Judicial Court of Maine has held

unequivocally that the employer’s

immunity granted by this section “extends

to all non-contractual rights of

4 The statutes referred to relate to

employers’ liability in the absence of

workers’ compensation, actions under the

Maine Tort Claims Act, and actions for

wrongful death.

contribution and indemnity.” McKellar v.

Clark Equipment Co., 472 A.2d 411, 416

(Me. 1984); Roberts v. American Chain &

Cable Co., 259 A.2d 43, 51 (Me. 1969).

Thus, section 4 of the Maine Act, as

interpreted by the Maine Court, provides

BIW with immunity from third-party claims

for contribution or indemnity arising

from work-related injuries to its

employees.

Iit.

Defendants advance two grounds in

support of their argument that Section 4

of the Maine Act cannot be applied in

these cases to immunize BIW from

liability on their third-party claims.

First, they contend that the federally-

enacted LHWCA has preempted section 4 of

the Maine Act. Second, they argue that

where plaintiffs have elected to receive

compensation under the LHWCA, rather than

under the Maine Act, section 4 of the

Maine Act does not =) : The Court

finds no merit in either argument.

A. Preemption

In Sun Ship, Inc. v. Pennsylvania,

447 U.S. 715, 719, 722 (1980), the

Supreme Court clearly enunciated the

three jurisdictional spheres within which

marine-related injuries fall. At the

seaward extreme, nonlocal maritime

injuries fall under the LHWCA, and

Southern Pacific Co. v. Jensen, 244 U.S.

205 (1917), places a constitutional bar

on States applying their compensation

laws. Sun Ship, 447 U.S. at 719; see

e.g., Anderson Vv. Alaska Packers

>The affidavits submitted by BIW in

support of its motion disclose that the

vast majority of plaintiffs have chosen

to receive compensation under the LHWCA.

Association, 635 P.2d 1182, 1184-85

(Alaska 1981). At the other extreme,

beyond the landward extension of the

LHWCA, see 33 U.S.C. §903(a), state

compensation laws alone control. Sun

Ship, 447 U.S. at 719. In the “twilight

zone” between the Jensen line and the

inland limit of the landward extension of

the LHWCA “maritime but local” injuries

can be compensated under either state or

federal law, id., and “federal

jurisdiction . .. coexist(s) with state

compensation laws.” Id. at 722; see

Calbeck v. Travelers Insurance Co., 370

U.S. 114, 128-29 (1962); Davis v.

Department of Labor, 317 U.S. 249, 256

(1942). Concurrent federal and state

jurisdiction in the “twilight zone” is

now too well established to be disputed.

Director Vv. Perini North River

-42 a-

Associates, U.S. » Be CG.

’ , 51 U.S.L.W. 4074, 4080-81

(U.S. Jan. 11, 1983); Landry v. Carlson

Mooring Service, 643 F.2d 1080, 1087-88

(Sth Cir.), cert. denied 454 U.S. 1123

(1981); Newport News Shipbuilding &

Drydock Co. v. Director, 583 F.2d 1273,

£

1276-78 (4th Cir. 1978), cert. denied,

440 U.S. 915 (1979); Thompson Vv.

Teledynbe Movable Offshore, Inc., 419

So.2d 822, 826 (La. Sup. Ct. 1982);

American Original Foods, Inc. vv. Ford,

272 S.E.2d 187, 188-90 (Va. Sup. Ct.

1980); Ward Vv. State Workmen’s

Compensation Commissioner, 301 S.E. 2d

592, 594 (W.Va. Sup. Ct. App. 1983); see

Murray v. City of Augusta, 394 A.2d 1171,

1173 (Me. 1978); 4 A. Larson, The Law of

Workmen’s Compensation §§ 89.70-89.73

(1983).

Within the "twilight zone” of

concurrent jurisdiction, the LHWCA

“supplements, rather than supplants,

state compensation law.” Sun Ship, 447

U.S. at 720; see 1A e. Jhirad, Benedict

on Admiralty § 23a at 2-18.2-2.19 (7th

ed. 1983). The LHWCA would only preempt

a conflicting provision of a state

compensation act. See Sun Ship, 447

U.S.at 724 n.6; Murphy v. Woods Hole,

Martha’s Vineyard & Nantucket s.S.

Authority, 545 F.2d 235, 241 (1st Cir.

1976) } see also Askew v. American

Waterways Operators, ° -S. 325,

341 (1973). Preemption will not be

presumed absent a clear conflict between

federal and state legislation “in a field

which the states have traditionally

occupied.” Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947); see

Askew v. ASmerican Waterways Operators,

Inc., 411 U.S. at 341; Murray v. City of

Augusta, 394 A.2d at 1173; 4 A. Larson,

The Law of Workmen’s Compensation §89.71

at 16-286.45 (1983).

%efendants can point to no presently

relevant provision of the LHWCA which

conflicts with Section 4 of the Maine

Act. They suggest that section 905(a)

may create such a conflict. But, as

previously observed, see ante at 5,

Congress, in enacting section 905(a) of

the LHWCA, left undisturbed existing law

regarding the rights of unrelated third

parties against covered employers.

Moreover, since the outcome of the

third-party litigation does not directly

affect any award to the employee, the

Court cannot see any conflict between the

immunity provision of the Maine Act and

Congress’ policy objective of providing

adequate benefits to maritime workers.

See Sun Ship, 447 U.S. at 723.°

B. Election

It is undisputed that, with only a

few exceptions, plaintiffs have chosen to

receive workers’ compensation benefits

under the LHWCA, rather than under the

Maine Act. Defendants argue that

°rhe only provision of the LHWCA arguably

in conflict with section 4 of the Maine

Act is section 905(b), 33 U.S.C. §905(b),

which permits a covered employee to

recover damages for injuries caused by

the negligence of a vessel owned by his

employer. See Jones & Laughlin Steel

Corp. v. Pfeiffer, U.S. ‘—' BP

Ct. 2541, 51 U.S.L.W. 4795 (U.S. June 15,

1983); In re All Maine Asbestos

Litigation, 581 F.Supp. 963, 975-77 (D.

Me. 1984). Plaintiffs in these actions,

however, can have no such claim against

BIW because, as the Court has previously

held, BIW was neither the owner nor the

owner pro hac vice, see 33. «CY. 8. 6.

§902(21), of the vessels upon which the

employees worked. See Bernier v. Johns-

Manville Sales Corp., Civ. No. 78-98 P

(D. Me. Aug. 9, 1982).

plaintiffs’ acceptance of LHWCA benefits

constitutes an election of the remedy

under federal law, precluding the

application of state law in these cases.

They cite Professor Larson’s discussion

of conflicts between state workers’

compensation acts. See 4 A. Larson The

Law of Workmen’s Compensation §88. The

short answer to this contention is that

“(e)lection of remedies involves a choice

between inconsistent remedies,” whereas

“(s)tate and Longshore benefits are not

inconsistent but complementary.” Id.

§89.74 at 16-286.50-.51 (emphasis in

original). The courts have thus

overwhelmingly rejected the

remedies argument as between LHWCA and a

state workers’ compensation act. Calbeck

v. Travelers Insurance Co., 370 U.S. at

131-32; Simpson v. Director, 681 F.2d 81,

91 (lst Cir. 1982), cert. denied, 103 S.

Ct. 762 (1983); Landry v. Carlson Mooring

Service, 643 F.2d at 1087-88; Newport

News Shipbuilding & Drydock Se. Ws

Director, 583 F.2d at 1276-77; Murray v.

City of Augusta, 394 A.2d at 1173. But

see Poche v. Avondale, Inc., 339 S.E.2d

1212, 1221 (La. 1976) .’ In sum, as

‘professor Larson suggests that Poche was

decided as it was because Louisiana is a

civil law state and the election doctrine

has its ‘roots in Roman Law. See 4A.

Larson, The Law of Workmen’s Compensation

§89.74 at 16-286.51.

Defendants argue that the Supreme

Court recognized an election of remedies

in Hahn v. Ross Island Sand & Gravel Co.

358 U.S. 272 (1959) (per curiam). Hahn

was based upon a clause in section 903(a)

of the LHWCA which provided that the

LHWCA did not apply “if recovery :

. through workmen’s compensation

proceedings may. . .validly be provided

by State law.” See Hahn, 358 U.S. at

272. The meaning of that language was

substantially narrowed as the Supreme

Court developed the doctrine of

concurrent jurisdiction. See, eé.g.,

Calbeck v. Travelers Insurance Co., 370

U.S. 114 (1962). In any event, Congress

eliminated the language upon which Hahn

ad

Professor Larson has observed, “the

doctrine of election of remedies is

completely out of place as between state

and Longshore remedies.” 4A. Larson, The

Law of Workmen’s Compensation §89.74 at

16-286.50.

IV.

There remains for consideration only

the prayer for pro tanto relief in Count

I of defendants’ third-party complaint.

The question of whether section 4 of the

Maine Act immunizes a compensation-paying

employer from pro tanto claims presents a

question of Maine law on which the

Supreme Judicial court of Maine has not

spoken. Moreover, the justices of the

Maine Superior Court, courts in other

(footnote continued from previous page)

was based when it amended the LHWCA in

1972. Pub. L. 92-576, § 2(c), 86 Stat.

1251 (Oct. 27, 1972).

jurisdictions construing similar

compensation statutes, and the

commentators are split on this issue.

Compare Burnell Vv. West Oxford

Agricultural Society, Docket No. CV 81-

151 (Oxford, June 28, 1983) (Bradford,

J.) (permitting pro tanto recovery);

Associated Construction & Engineering Co.

v. Workers’ Compensation Appeals Board,

587 P.2d 684, 150 Cal. Rptr. 888 (Cal.

1978) (Mosk, J.) (permitting pro _ tanto

recovery in California); Witt v. Jackson,

17 Cal. Rptr. 369, 366 P.2d 641 (1961)

(Traynor J.) (permitting pro tanto

recovery in California); Note, Exceptions

to the Exclusive Remedy Requirements of

Workers’ Compensation Statutes, 96 Harv.

L. Rev. 1641 1660-61 (1983) (arguing for

pro tanto recovery in California) .Note,

New Policies Bearing on the Negligent

Employer’s Immunity from Loss-Sharing, 29

Me. L. Rev. 243 (1978) (arguing for pro

tanto relief), with Wacome v. Blue Rock

Industries, Docket No. CV-82-270

(Kennebec, Mar. 16, 1983) (McCarthy, J.)

(denying pro tanto recovery); Shorey v.

Boulter & Son, Inc., Docket No. 77-475

(Penobscot, May 3, 1979) (Brown, J.)

(denying pro tanto recovery); Schweizer

v. Elox Division of Colt Industries, 70

N.J. 280, 359 A.2d 857 (1976) (holding

courts in New Jersey do not have the

authority to grant pro tanto recovery);

2A A. Larson, The Law of Workmen’s

Compensation §§ 76.20 et seq. (1982)

(arguing aginst pro tanto relief); see

also Kimball v. Lyons Machine Works, Civ.

No. 75-119 SD (D. Me. July 22,

1976) (allowing a pro tanto claim to

survive a motion to dismiss).

-51 a-

The issue presented here raises a

question of Maine law as to which there

is no clear controlling precedent in the

decisions of the Supreme Judicial Court.

In these circumstances, especially in

view of the division among the Maine

Superior Court justices and authorities

elsewhere, the prudent course for this

Court to follow is to deny BIW’s motion

for summary judgment insofar as it seeks

dismissal of the claims for pro _ tanto

relief, and, upon its own motion or upon

request of a party at the close of trial,

to consider certifying the question to

the Supreme Judicial Court of Maine

pursuant to Me. R. Civ. P. 76B. Such

certification should be made only on a

complete record. See Hiram Ricker & Sons

v. Students International Meditation

Society, 342 A.2d 262 (Me. 1975); White

v. Edgar, 320 A.2d 668 (Me. 1974); In re

Richards, 223 A.2d 827 (Me. 1966).

V.

In accordance with the foregoing, it

is ORDERED as follows:

(1) So much of BIW’s motion for

summary judgment as seeks dismissal of

the claims for contribution and indemnity

in defendants’ Model Third-Party

Complaint is GRANTED;

(2) So much of BIW’s' motion for

summary judgment as seeks dismissal of

the claims for pro_ tanto relief in

defendants’ Model Third-Party Complaint

is DENIED.

Dated at Portland, Maine this 5th day of

July 1984.

U.S. District Judge

APPENDIX A TO DECISION OF JULY 5, 1984

The motion before the Court is the

motion filed by Raymark Industries,

Incorporated, On September 13, 1983,

requesting that this Court reconsider its

decision and order in the case of Austin

v. Johns-Manville Sales Corporation, 508

F. Supp. 313 (D. Me. 1981). In that case

this Court ruled, on the basis of then

authoritative Supreme Court cases, that

the third-party claims for contribution

and/or indemnity asserted by the

defendant Armstrong Cork against Bath

Iron Works were barred by the exclusive

liability provision of the Longshoremen’s

and Harbor Workers’ Compensation Act, 33

U.S.C. §905(a). The Court therefore

granted BIW’s motion for a summary

judgment dismissing the amended third-

party complaint of Armstrong Cork.

Subsequently, the Court entered similar

orders, without further argument, in

three other asbestos actions, the so-

called Bernier, Moore and Jones cases,

Civil Nos. 78-98, 79-55 and 81-00145

(Consolidated) and Civil No. 79-73,

granting BIW’s motions for summary

judgment dismissing third-party

complaints filed against BIW by defendant

Raybestos~-Manhattan (now Raymark

Industries, Incorporated). The Raymark

motion presently before the Court seeks

reconsideration of all these and any

similar rulings by this Court.

The basis of the motion for

reconsideration is the subsequent opinion

of the United States Supreme Court in

Lockheed Aircraft Corp. v. United States,

decided February 23, 1983. In Lockheed,

the Supreme Court held that the exclusive

liability provision of the Federal

Employees’ Compensation Act, 5 U.S.C.

§8116(c), did not bar a third-party

indemnity action by an unrelated third

party against the United States. Having

thoroughly analyzed the Supreme Court’s

opinion in Lockheed, the briefs submitted

by counsel on the present motion, and the

earlier Supreme Court cases referred to

in those briefs, this Court is persuaded

that the rationale of the Supreme Court

in Lockheed compels the conclusion that

this cCourt’s ruling in Austin cannot

survive.

The language of the exclusivity

provision of the LHWCA, Section 905(a),

is in all material respects identical to

the language of the exclusive liability

provision of the FECA, §8116(c). In

Lockheed, the Supreme Court construed

this language as not barring third-party

indemnity actions against the United

States, the employer covered by the FECA,

by unrelated third parties. The basis of

the Supreme cCourt’s decision in Lockheed

was both the language of § 8116(c) and

the legislative history of the FECA. As

to the latter, the Supreme Court

concluded that there is no evidence that

Congress was concerned with the rights of

unrelated third parties. In this

connection, the Court pointed out that §

8116(c) was intended to govern only the

rights of employees, their relatives, and

persons claiming through or on behalf of

them, these being the only parties who

benefit from the “quid pro quo”

compromise of the FECA.

-57 a-

Applying the Supreme Court’s

analysis in Lockheed to § 905(a) of the

LHWCA, the language of § 905(a) is in all

material respects identical to the

language of § 8116(c), and the Supreme

Court’s construction of that language in

FECA would appear to be equally

applicable to the corresponding LHWCA

language. Moreover, a review of the

legislative history of the LHWCA,

including the 1972 amendments, persudades

this Court that it is equally

unpersuasive to establish that Congress

was concerned with the rights of

unrelated non-vessel owner third parties.

Insofar as unrelated non-vessel owner

third parties are concerned, the 1972

amendments involved no "quid pro quo”

compromise Similar to that which

benefited vessel owners. In short, there

is no evidence either in the language of

the statute or in the congressional

history that Congress addressed itself

to, Or was in any way concerned with, the

rights of non-vessel owner third parties.

The Court has concluded that

Lockheed’s analysis of the exclusivity

provision of the FECA is equally

applicable to the exclusivity provision

of the LHWCA. It follows that the ruling

of this Court in Austin is inconsistent

with Lockheed and cannot stand.

Raymark’s motion for reconsideration

of the Austin ruling is granted. The

order granting BIW’s motion for summary

judgment dismissing the third party

complaint of Armstrong Cork in that case,

and the further orders of this Court

granting BIW’s motion for summary

Judgment dismissing the third party

-59 a-

complaints of Raybestos-Manhattan in

three other cases, are vacated. The

Court will enter an order denying BIW’s

motions for summary judgment.

The denial of these motions is

without prejudice to the right of BIW to

file an appropriate motion based on its

newly-raised defense that the substantive

law which this Court must apply, quite

apart from Section 905(a), bars the third

party claims for contribution and

indemnity asserted against BIW in these

cases.

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