Appendix — Eagle-Picher Industries, Inc. v. United States
Supreme Court brief1986
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IN THE aS
Supreme Court of the United States
OCTOBER TERM, 1985
EAGLE-PICHER INDUSTRIES, INC.,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
JOE G. HOLLINGSWORTH
1015 Fifteenth Street, N.W.
Washington, D.C. 20005
(202) 393-8535
Attorney for Petitioner
Of Counsel:
SPRIGGS, BODE &
HOLLINGSWORTH
DONALD W. FOWLER
EDWARD M. FOGARTY
January 24, 1986
MS sss
STL 8 ELS EL SE ES I cS
WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001
APPENDIX A:
APPENDIX B:
APPENDIX C:
APPENDIX D:
APPENDIX E:
APPENDIX F:
APPENDIX G:
APPENDIX H:
APPENDIX T:
APPENDIX J:
APPENDIX K:
APPENDIX L:
TABLE OF CONTENTS
In re All Maine Asbestos Litigation
(PNS Cases), 772 F.2d 1023 (1st
EERE RODS ER aes ar CE
In re All Maine Asbestos Litigation
(PNS Cases), 589 F. Supp. 1571 (D.
RIE EA SUBTESS EReeacae
In re All Maine Asbestos Litigation,
581 F. Supp. 963 (D. Me. 1984)
Drake v. Raymark Industries, Inc.,
772 F.2d 1007 (1st Cir. 1985)...
Order of Court, Jn re All Maine As-
bestos Litigation (PNS Cases), No.
84-1779 (1st Cir. Oct. 30,1985)...
33 U.S.C. §905(b) (1982) ............. v7
33 U.S.C. §§ 902(3),903(a) (1982).
“Model Third-Party Complaint
Against the United States of Amer-
Te er wc FO oes
Amended Order of the Court, Jn re
All Maine Asbestos Litigation (D.
SR EN Mis TED ciiccrcnkidstnsncnvencnesscpense
Order of Court, Jn re Ail Maine As-
bestos Litigation (PNS Cases) v.
United States of America, Misc. No.
84-8045 (1st Cir. Sept. 20, 1984)...
Order re Motion to Dismiss, Johns-
Manville Sales Corp. v. United
States, No. C 81-4561 RFP (N.D.
a I I i ccmmisevewens
Order on Motion for Reconsideration,
In ve All Asbestos Litigation, Civil
No. 79-0382 (D. Hawaii Nov. 20,
ET iad olin icasacmiccreiaeioées
Page
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APPENDIX A
UNITED STATES COURT OF APPEALS
FIRST CIRCUIT
No. 84-1779
IN RE ALL MAINE ASBESTOS
LITIGATION ‘(PNS CASEs)
PETITION OF UNITED STATES OF AMERICA
Argued Jan. 9, 1985
Decided Sept. 18, 1985
Joseph B. Cox, Jr., Torts Branch, Civil Div., U.S. Dept.
of Justice, Washington, D.C., with whom David S. Fish-
back, Torts Branch, Civil Div., U.S. Dept. of Justice,
Harold J. Engel, Asst. Director, Peter A. Nowinski, Spe-
cial Litigation Counsel, Washington, D.C., Richard S.
Cohen, U.S. Atty., Portland, Me., and Richard K. Wil-
lard, Acting Asst. Atty. Gen., Washington, D.C., were on
brief for petitioner.
Jeffrey Silberfeld with whom Rivkin, Leff, Sherman &
Radler, James G. Goggin and Verrill & Dana, Portland,
Me., were on brief for Pittsburgh Corning Corp.
Mark G. Furey, Portland, Me., with whom Thomas R.
McNaboe and Thompson, McNaboe & Ashley, Portland,
Me., were on brief for Raymark Industries, Inc.
Edward M. Fogarty, New York City, with whom Don-
ald W. Fowler, Joe G. Hollingsworth, William J. Spriggs,
2a
Spriggs Bode & Hollingsworth, Washington, D.C., John
R. Linnell and Linnell, Choate & Webber, Auburn, Maine,
were on brief for Eagle-Picher Industries, Inc.
Before COFFIN, BOWNES and TORRUELLA, Circuit
Judges.
BOWNES, Circuit Judge.
This interlocutory appeal regarding third-parties’
claimed right to proceed against the United States for
noncontractual indemnity or contribution constitutes one
more step toward a determination of who shall be ulti-
mately liable for the injuries to workers resulting from
their exposure to asbestos in the Portsmouth Naval Ship-
yard (PNS). All of the workers whose injuries are the
subject of the primary actions in this portion of the
Maine asbestos cases are present or former civilian fed-
eral employees of PNS located at Kittery, Maine. In nu-
merous individual actions,' the workers or their represen-
tatives (plaintiffs), sued twenty-six manufacturers and
distributors (defendants) for occupational disease or
wrongful death caused by their exposure to asbestos dust
that was created by the manufacturers’ asbestos products.
This exposure allegedly occurred while the workers were
performing construction or repair work on U.S. naval
vessels.
According to the complaints, plaintiffs seek to recover
compensatory and punitive damages for injuries caused
by the breach of required duties of care. Specifically,
plaintiffs charge the defendant manufacturers with fail-
ure to use reasonable care in providing warnings to work-
ers about the products’ dangers and about the proper pre-
cautions to be taken when working with or near their
asbestos products; failure to test their products and con-
duct safety research on them; and failure to remove the
products from the market. Hence, the causes of action
asserted are based on negligence, strict liability, and
1 The district court declined to certify any class actions.
3a
breach of express and implied warranties. Jurisdiction
is based upon diversity of citizenship. Austin v. Unarco
Industries, Inc., 705 F.2d 1, 3 (1st Cir.), cert. dismissed,
463 U.S. 1247, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983).
No suit was brought by any plaintiff against the gov-
ernment on any theory. As government employees, their
exclusive remedy against the United States was under
the Federal Employees’ Compensation Act, 5 U.S.C.
$$ 8101, 8116(c), which provides no-fault compensation
for work-related injury or death.
Shortly after the filing of plaintiffs’ complaints, de-
fendants sought to implead the United States as a third-
party defendant. Defendants charged that the United
States had breached various contractual and tort duties
of care to them and to the federal employees. Judge
Gignoux, who has shepherded these consolidated actions
since their inception, directed defendants to file a model
third-party complaint containing all the theories they
sought to press in their third-party actions. The perti-
nent complaint thereafter filed? contained nine separate
counts. In response to the United States’ motion, the dis-
trict court dismiSsed all but one count of the model third-
party complaint and reserved judgment on Count VI. See
In re Ali Maine Asbestos Litigation, 581 F.Supp. 963,
980-81 (D.Me.1984). Count VI, which seeks noncontrac-
tual indemnification and/or contribution,’ is predicated
° Defendants actually filed two third-party complaints against
the United States. The first, designated “Model Third-Party Com-
plaint A,” was filed in reference to cases where the injured worker
was employed by Bath Iron Works, a private Shipyard. In con-
trast, Model Third-Party Complaint B, the subject of this appeal,
was filed in reference to cases where the injured worker was a
government employee at Portsmouth Naval Shipyard.
* The defendant manufacturers do not concede that the other
eight counts were properly dismissed, but this question is not be-
fore us; although the district court certified its disposition of all
nine counts, we accepted for interlocutory appeal only Count VI.
4a
upon the Federal Tort Claims Act (hereinafter FTCA),
28 U.S.C. $$ 1846(b), 2671 et seg. The FTCA provides,
inter alia, that subject to certain exceptions, the govern-
ment “shall be liable” in tort “in the same manner and
to the same extent as a private individual under like
circumstances.” 28 U.S.C. § 2674.
The district court denied the government’s motion to
dismiss Count VI in a supplemental opinion. In re All
Maine Asbestos Litigation (PNS Cases), 589 F.Supp.
1563 (D.Me.1984). The court held that under the aia-
lytical approach mandated by the FTCA, the liability of
the United States would be determined on the basis of
the law a Maine court would apply to an analogous ship-
yard employer. Applying Maine law, the court held that
it was unclear whether Maine courts would recognize the
“dual capacity” doctrine as a means of imposing liability
on a workers’ compensation-paying shipyard employer
which is also a ship owner, as the United States is in this
instance. While Maine law clearly prohibits any form of
additional liability, including third-party liability, im-
posed upon employers covered by the state workers’ com-
pensation statute, the district court found that it was not
clear whether this protection extended to a third-party
claim for noncontractual indemnity or contribution
brought against a compensation-paying private employer
in its capacity as a vessel owner. The district court was
of the opinion that the only appropriate course was to
certify the question to the Supreme Judicial Court of
Maine, and that it would do so after a trial on the
merits.*
4The Maine Supreme Judicial Court has indicated that before
answering a certified question, it would prefer to have a record
showing that the certified question will be dispositive of the case.
See Maine R.Civ.P. 76B(a); White v. Edgar, 320 A.2d 668, 677
(Me. 1974); In re Richards, 223 A.2d 827, 833 (Me. 1966); see
5a
At the United States’ request, the question whether
Count VI, too, should have been dismissed was certified
and accepted for interlocutory appeal.’ This count con-
tains two distinct theories of recovery. First, defendants
press what may be summarized as land-based theories,
i.e., alleged negligence of the government in its capacities
as the plaintiffs’ employer and as the owner of the ship-
yard. Second, defendants seek contribution or indemnity
from the United States because of its alleged status as
owner of the vessels on which the underlying plaintiffs
worked at the time of their asbestos exposure. The grava-
men of the claim is that, as the owner of the ships being
constructed or repaired, the United States failed to exer-
cise the appropriate level of care regarding the conditions
under which the workers performed their duties, a dere-
liction of duty which allegedly was the proximate cause
of the workers’ injuries. Defendants base their second
claim on the Longshore * and Harbor Workers’ Compensa-
tion Act, 33 U.S.C. §905(b). Whether either theory of
liability contained in Count VI should have been dis-
missed is the question before us at this time, and we dis-
cuss their merits separately.
also Gagne v. Carl Bauer Schraubenfabrick, 595 F.Supp. 1081, 1088
(D.Me. 1984).
° For some reason the parties failed to comply with the respon-
sibilities imposed upon them by Fed.R.App.P. 10 and 11, and Local
App.R. 8(b), viz, that they assemble and file the record in this
case. The only papers this court received were a copy of Model
Third-Party Complaint B, the United States’ answer, and a copy
of the Master Docket for Jn re All Maine Asbestos Litigation. The
court, on its own initiative, had to examine the papers on file in
the district court. The parties were not released from their respon-
sibilities to assemble the record merely because this was an inter-
locutory appeal.
® Congress has modified the name of the Act by changing “Long-
shoremen” to “Longshore.” See Longshore and Harbor Workers’
Compensation Act Amendments of 1984, Pub.L. No. 98-426, § 27(d).
6a
I. LAND-BASED THEORIES OF LIABILITY
A
The defendants allege that governmental third-party
liability exists because the underlying plaintiffs’ land-
based exposure to asbestos was a result of the govern-
ment’s negligence in its capacity as employer and as ship-
yard owner. The government replies that the “only rul-
ing timely brought to this Court ... [is] the govern-
ment’s appeal of the district court’s adverse ruling as to
the vessel owner claim.” The government argues that
the denial of appellee’s petition to bring all other issues
before this court on interlocutory appeal “precludes con-
sideration of the manufacturers’ claims other than that
against the government qua vessel owner.”
The government is correct that this court allowed inter-
locutory appeal on only the denial of the dismissal of, or
alternatively, of summary judgment on, Count VI. We
do not, however, read Count VI as narrowly as the gov-
ernment. In Count VI, defendants allege claims against
the goverr.ment not only in its capacity as a vessel owner
but also “as the owner of the shipyards . . . the designer
of the specifications . . ., and as the general supervisor
of the work performed ... .”’ Model Third-Party Com-
plaint B, 139. Although the district court stated that
“Count VI... does not... assert a claim against the
United States in its capacity as an employer, but in its
capacity as a vessel owner,” we think that Count VI
on its face encompasses employer and shipyard owner
theories.
Regardless of the fact that the district court did not
read Count VI as stating a claim against the govern-
ment gua employer, it discussed and applied the relevant
situs law that governs land-based employers as an ana-
lytical step in its disposition of the vessel owner claim.
We do not think, therefore, that the district court’s fail-
ure to make a separate ruling on the land-based the-
7a
ories of liability bars our review of them. No preju-
dice will result to either party and we have all the facts
necessary for such a review.
B
As the district court noted, “[i]t is undisputed that
the PNS employees and deceased employees in these cases
were covered by the Federal Employees’ Compensation
Act (FECA), 5 U.S.C. § 8101 et seg., and that they
are barred from suing the United States as their em-
ployer by FECA’s exclusive liability provision, 33 U.S.C.
$ 8116(c).” Interpreting these provisions recently, the
Supreme Court held that “FECA’s exelusive-liability pro-
vision, 5 U.S.C. § 8116(¢c), does not directly bar a third-
party indemnity action against the United States.”
Lockheed Aircraft Corp. v. United States, 460 U.S. 190,
199, 103 S.Ct. 1033, 1038, 74 L.Ed.2d 911 (1983).
The Court added, however, that other substantive law
affirmatively granting the right to proceed against the
government must be identified in order to maintain such
a third-party action. See id. at 197 n. 8, 199, 103 S.Ct.
at 1037 n. 8, 1038; accord Prather v. Upjohn Co., 585
F.Supp. 112, 114 (N.D.Fla.1984). Consequently, we find
that the district court was correct in turning initially to
the substantive provisions of the Federal Tort Claims
Act, 28 U.S.C. §§ 1346(b), 2671-80, on which jurisdic-
tion for Count VI is predicated, to determine whether
defendants could maintain their action.
C
The Federal Tort Claims Act is a limited waiver of
sovereign immunity that subjects the United States to
tort liability within certain parameters. The FTCA pro-
vides in pertinent part:
The United States shall be liable, respecting the
provisions of this title relating to tort claims, in the
8a
same manner and to the same extent as a private
individual under like circumstances, but shall not
be liable for interest prior to judgment or for puni-
tive damages.
28 U.S.C. § 2674. The waiver extends to third-party
claims against the government. United States v. Yellow
Cab Co., 340 U.S. 548, 71 S.Ct. 399, 95 L.Ed. 523 (1951).
And it extends to third-party claims against the govern-
ment for losses incurred by third-parties as the result of
injuries to federal employees covered by FECA where
other applicable substantive law grants a right of re-
covery. Lockheed, 460 U.S. at 198, 103 S.Ct. at 1038.
Section 2674 is amplified by a sister provision stating
that, subject to certain exceptions, federal district courts
are granted subject matter jurisdiction over claims to
redress injury caused by any employee of the government
“under circumstances where the United States, if a pri-
vate person, would be !iable to the claimant in accordance
with the law of the place where the act or omission oc-
curred.” 28 U.S.C. §1346(b) (emphasis added). To
identify the applicable rule of substantive law, the FTCA
directs us to determine the substantive law that would
apply to “fa private individual under like circumstances”
in the jurisdiction where the injury occurred. We there
fore look to whether a private person in like circum-
stances would be liable under the law of Maine, the situs
state. United States v. Muniz, 374 U.S. 150, 153, 83
S.Ct. 1850, 1853, 10 L.Ed.2d 805 (1963); Brooks v. A.R.
& S. Enterprises, Inc., 622 F.2d 8, 10 (1st Cir.1980).
All parties agree with the district court that “a private
individual under like circumstances” is a compensation-
paying private shipyard employer in Maine. They differ,
however, on what kind of compensation system is to be
ascribed to the analogous private employer for purposes
of the FTCA analysis. The defendant asbestos manufac-
turers contend that the analogous private employer is a
9a
private shipyard employer with a FECA-like workers’
compensation system. The United States and the district
court posit that an analogous private shipyard employer
would be covered under the Maine Workers’ Compensa-
tion Act (the Maine Act or MWCA), 39 Me.Rev.Stat.
Ann. § 1 et seg. (1978 & Supp.1984-85).
In the companion case of Drake v. Raymark Industries,
Inc., 772 F.2d 1007 (1st Cir.1985), we determined that
a compensation-paying private shipyard employer in
Maine, Bath Iron Works, was concurrently covered by
both the Maine Act and Longshore and Harborworkers’
Compensation Act. We held that both Acts barred con-
tribution and noncontractual indemnity actions, such as
defendants seek to maintain here, against a compensa-
tion-paying employer. The Drake ruling governs the
question here and requires that defendants’ third-party
claims against the government in its capacity as em-
ployer be dismissed. See id. at 1019-1022.
Defendants argue, however, that § 4 of the Maine Act
bars none of their claims because that statute by its
terms cannot apply to the United States. For the same
reason, neither could the Longshore Act apply to the
government. This latter argument, however, was not
made by defendants undoubtedly because it would have
negated their vessel owner negligence claim predicated
on the application of the Longshore Act to the United
States despite the government’s exclusion from its cover-
age. Nevertheless, they contend that considering the
United States as “a private individual under like circum-
stances” as the FTCA mandates, the proper analogy is
a private employer covered by FECA and not by the
Maine Act. Under such an approach, the type and pro-
visions of the applicable workers’ compensation system
is one of the “circumstances” that must be factored into
the analysis. The appropriate analogy, therefore, is a
private shipyard employer covered by a workers’ com-
10a
pensation scheme like FECA, with an exclusivity provi-
sion worded and interpreted like that of FECA. Because
Lockheed held that FECA’s exclusivity provision did not
bar third-party actions such as this, the defendants claim
that Count VI’s land-based theories of liability may pro-
ceed. In their view, the Maine Act’s exclusivity provi-
sion is simply inapplicable and irrelevant.
We find this reasoning unpersuasive. A private ship-
yard employer in Maine, as is Bath Iron Works, would
be covered by the MWCA as well as the LHWCA, and
the FTCA defines the United States’ liability as that of
“a private individual in like circumstances.” 28 U.S.C.
$ 2674. As one court has noted,
unless the phrase “under like circumstances” js read
to nullify the phrase “private individual” and not to
modify it, [the state compensation scheme] must ap-
ply to [third-party plaintiffs’] claims. It is of course
possible to argue that FECA is one of the “circum-
stances” which define the liability of the United
States as a shipyard employer; FECA does not, how-
ever, apply to a “private individual.” Applying
FECA would therefore be facially inconsistent with
the language of the FTCA.
Colombo v. Johns-Manville Corp., 601 F.Supp. 1119, 1128
(E.D.Pa.1984). Accord Roelofs v. United States, 501
F.2d 87, 92-93 (5th Cir.1974) (state workers’ compensa-
tion system, including defenses available to covered em-
ployers, is the law applied to the United States under
FTCA even though the government was not in actuality
covered under the state compensation law); see also
Stewart v. United States, 716 F.2d 755, 765 (10th Cir.
1982) (same), cert. denied, —— U.S. ——, 105 S.Ct.
432, 83 L.Ed.2d 359 (1984). We hold that these land-
based third-party claims are barred by § 4 of the Maine
Workers’ Compensation Act and 33 U.S.C. § 905(a).
lla
II. THIRD-PARTY LIABILITY OF THE UNITED
STATES AS VESSEL OWNER UNDER § 905(b)
In Count VI of Model Third-Party Complaint B, de-
fendant manufacturers also press a claim against the
United States for shipowner negligence, purportedly
based on the Longshore and Harbor Workers’ Compen-
sation Act (LHWCA or Longshore Act), 33 U.S.C.
§$ 905(b). They cite the FTCA as again providing the
necessary waiver of sovereign immunity.
Although federal workers are expressly excluded from
LHWCA coverage, see 33 U.S.C. § 903(a) (2), defend-
ants contend that by employing the FTCA analogical
method properly, this exclusion is rendered irrelevant.
Defendants reason that “a private person under like cir-
cumstances” to the United States, 28 U.S.C. § 2674, is a
vessel owner. Applying the law of the place as required
by the FTCA, 28 U.S.C. $$ 1346(b), 2674, means what-
ever law, and choice of law rules, the locality would apply
in a given case, Richards v. United States, 369 U.S. 1,
11-13, 82 S.Ct. 585, 591-593, 7 L.Ed.2d 492 (1962) ;
Hess v. United States, 361 U.S. 314, 318 n. 7, 80 S.Ct.
341, 345 n. 7, 4 L.Ed.2d 305 (1960). Defendants claim
that federal substantive law, and specifically, the Long-
shore Act, would have to be utilized by Maine courts to
determine the viability of the shipowner negligence claim.
See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S.
523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983); Scindia
Steam Navigation Co. v. De Los Santos, 451 U.S. 156, at
165 n. 13, 101 S.Ct. 1614, at 1621 n. 13, 68 L.Ed.2d 1
(1981) (negligence actions that are brought against the
shipowner pursuant to $ 905(b) are governed by federal
maritime principles).
We doubt whether we can ignore an express congres-
sional exclusion of federal workers from coverage under
the LHWCA, and employ an FTCA analogy by which
coverage can be analogically presumed so as to render
12a
the United States vulnerable to a shipowner negligence
suit. It is well-established that the terms of the waiver
as set forth expressly and specifically by Congress define
and delimit the boundaries of the court’s subject matter
jurisdiction to entertain suits brought against the gov-
ernment. See United States v. Orleans, 425 U.S. 807,
813-14, 96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976) ;
Dalehite v. United States, 346 U.S. 15, 30-31, 73 S.Ct.
956, 965, 97 L.Ed. 1427 (1953). Where a provision of
the FTCA excludes what would otherwise be a potential
cause of action, no action against the government is per-
mitted. See, e.g., United States v. S.A. Empresa de
Viacao (Varig Airlines), —— US. , 104 §.Ct. 2755,
2762, 81 L.Ed.2d 660 (1984). Moreover, where other
federal policies, express or implied, prc7lude what would
otherwise be a potential cause of action, no action against
the government may stand. See Johansen v. United States
343 U.S. 427, 436-440, 72 S.Ct. 849, 855-857, 96 L.Ed.
1051 (1952) ; see also Laird v. Nelms, 406 U.S. 797, 802-
03, 92 St.Ct. 1899, 1902-03, 32 L.Ed.2d 499 (1972).7
* Unfortunately, Lockheed Aircraft Corp. v. United States, 460
U.S. 190, 103 S.Ct. 1033, 74 L.Ed.2d 911 (1983), does not dispose
of this FTCA thicket. In Lockheed the Court was confronted with
determining whether the exclusivity provision of FECA, 5 U.S.C.
§ 8116(c), barred a properly-brought FTCA action that the under-
lying substantive law otherwise would have permitted. Here, we
are concerned with more fundamental questions, such as whether
the underlying substantive law authorizes defendants’ vessel owner
negligence action, and additionally, whether we are required to
deem an express exclusion of the United States from coverage under
the LHWCA overridden by the FTCA.
It seems likely that the express exclusion of federal employees
raises a bar to the third-party shipowner action sought here, similar
to that recognized in Stencel Aero Engineering Corp. v. United
States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (Feres
doctrine will not be overridden for third parties). For us to permit
a vessel owner suit against the government in these circumstances
would likely be “to judicially admit at the back doeor that which has
been legislaitvely turned away at the front door.” Stencel Aero
13a
But we shall bracket these FTCA-based concerns and
assume for the purposes of our analysis that defendants
seek to maintain a third-party contribution and indem-
nity action against a private shipyard which owns the
ships on which the plaintiffs worked with and proximate
to asbestos products.
So stated, this question is also governed by our opin-
ion in Drake v. Raymark Industries. In Drake we held
that defendant manufacturers’ third-party claim against
a private shipyard as owner pro hac vice would not lie
under §905(b) because that section countenances only
maritime torts. Drake v. Raymark Industries, Inc., at
1012. Since to qualify as a maritime tort the wrong
must have borne some relationship to “traditional mari-
time activity,” Executive Jet Aviation v. Cleveland, 409
U.S. 249, 261, 93 S.Ct. 498, 501, 34 L.Ed.2d 454 (1972),
and the universal ruling of all circuits to have consid-
ered this type of wrong is that it does not bear such a
relationship, see Drake, at 1015-1016;* no $ 905(b) ac-
tion could have been brought by plaintiffs against the
owners of the ships on which they were doing construc-
tion or repair work. It follows that defendants have no
Engineering, 431 U.S. at 673, 97 S.Ct. at 2059 (quoting Laird v.
Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499; In re Agent
Orange Product Liability Litigation, 506 F.Supp. 762, 772 (E.D.N.Y.
1980)). Because the substantive law question is dispositive, and
rests on well-established legal principles, we do not determine the
impact of the LHWCA exclusion of federal employees on defendants’
third-party action.
8 See also Oman v. Johns-Manville Corp., 764 F.2d 224 (4th Cir.
1985) (en bane overruling of White v. Johns-Manville Corp., 662
F.2d 284 (4th Cir. 1981)); Myhran v. Johns-Manville Corp., 741
F.2d 1119 (9th Cir. 1984); Harville v. Johns-Manville Products
Corp., 731 F.2d 775 (11th Cir. 1984) ; Lowe v. Ingalls Shipbuilding,
723 F.2d 1173, 1187-90 (5th Cir. 1984); Austin v. Unarco Indus-
tries, 705 F.2d 1 (1st Cir. 1983) ; cf. Keene Corp. v. United States,
700 F.2d 836, 843-45 (2d Cir. 1983). cert. denied, U.S. ,
104 S.Ct. 195, 78 L.Ed.2d 171 (1983).
l4a
contribution action under the section, either, since the
only duties alleged to have been owed were owed to the
employees, not the defendants. Accordingly, we rule
that defendants’ contribution and indemnity action
against the third-party defendant based upon § 905(b)
must be dismissed for failure to state a claim on which
relief can be granted.
The district court did not analyze the defendants’ ves-
sel owner contribution action as we have.*® It did hold
that federal substantive law did not provide defendants
with a vessel owner action against the government, a re-
sult that accords with our own. The district court went
further, however, and held that the action would lie, if
at all, on the basis of a Maine recognition of the dual
capacity doctrine. The court then noted that it was un-
clear whether Maine recognizes the dual capacity doc-
trine, and within that doctrine, whether vessel owner
status would be considered distinct enough from the em-
ployer capacity to eliminate the immunity from certain
suits that employers enjoy under Maine law. Accord-
ingly, the district court ruled that the question would be
certified to the Maine Supreme Judicial Court following
a trial on the merits. We disagree.
As we explained in Drake, the negligence action against
a vessel owner from which defendants seek to derive
their contribution action was created by Congress as a
part of the 1972 LHWCA Amendments. This negligence
action was designed to replace the former action for un-
seaworthiness, a strict liability action. See H.R.Rep. No.
92-1441, 92d Cong., 2d Sess. (1972), reprinted in 1972
® Neither, to our knowledge, has any other court analyzed the
availability of a third-party contribution action under § 905(b) in
this manner. See, e.g., In re All [(H 1waii] Asbestos Cases, 603
F.Supp. 599, 605-606 (D. Hawaii 1984) (on motion for reconsidera-
tion) ; Colombo v. Johns-Manville Corp., 601 F.Spp. 1119, 1132-39
(E.D. Pa. 1984); In re General Dynamics Asbestos Cases, 602
F.Supp. 497 (D. Conn. 1984).
l5a
U.S.Code Cong. & Ad.News 4698, 4701-05. Maine does
not provide a specific cause of action against vessel own-
ers; it would lie, if at all, as an extension of the basic
negligence action, and only outside of admiralty juris-
diction, which is exclusively federal.
As we noted in Austin v. Unarco, where we decided
that admiralty jurisdiction would not lie for a ship con-
struction and repair worker’s claims of absestos-engen-
dered injuries:
[T]he risk encountered by plaintiff’s decedent is not
a risk arising from the loading or operation of a
vessel, against which those on the vessel are typi-
cally protected by the vessel owner. It is, rather,
the same risk at that encountered by a number of
workers on a shortside construction project.
Whatever anomalous results may follow from dis-
tinguishing between harbor workers according to the
maritime nature of the hazards they encounter are
at least offset, if not outweighed, by the anomalous
results of treating construction workers injured by
asbestos poisoning differently depending on whether
they were installing asbestos in a ship or in an
office building overlooking the harbor. The state has
an interest in providing uniform treatment to these
two like workers.
705 F.2d at 13 (emphasis added).
Defendants have not cited us any authority that sug-
gests that the Maine Supreme Judicial Court would
likely recognize the dual capacity doctrine. Indeed, the
language employed in its cases suggests the contrary.
For instance, in Roberts v. American Chain & Cable Co.,
259 A.2d 43 (Me.1969), the Maine Court stated:
Our act ... is so general in terminology as to gen-
erate the belief that the Legislature may have in-
tended an all-embracina immunity in favor of the
l6a
employer cutting across any equitable considerations
which our courts in the application of equitable
principles might otherwise apply.
259 A.2d at 46 (emphasis added); see also McKellar v.
Clark Equipment Co., 472 A.2d 411, 416 (Me.1984)
(following Roberts) (“The employer’s immunity, as de-
fined in Roberts, extends to all noncontractual rights of
contribution and indemnity” (citations omitted) ). Were
a suit against a vessel owner to be recognized, it would
likely result from the creation of a separate liability for
employers for the condition of their premises. But, as
Professor Larson has noted, the state courts have “held
with virtual unanimity” that workers’ compensation-
covered employers cannot be sued by their employees on
premises liability theories. 2A Larson, The Law of
Workmen’s Compensation § 78.82, at 14-234 (1983). The
Obvious reason for these holdings is that “[ ijf every
action and function ¢. nected with maintaining the prem-
ises could ground ; Separate tort suit, the concept of
exclusiveness of remedy would be reduced to a shambles.”
Id. at 14-238, Accordingly, defendants’ claims against
the government in its capacity as vessel owner—a prem-
ises liability theory—are also barred. See Columbo v.
Johns-Manville, 601 F.Supp. at 1131 (“The obligation of
the United States to provide a safe workplace and to
warn employees about the hazards of certain materials
arises solely out of the employment relationship. There
is, in effect, no alternative capacity in which to sue an
employer on these theories”). Id. at 14-238. As the gov-
ernme:.t points out, there are no reported cases even
hinting that Maine might deviate from the universal
view.
To summarize, defendants have not shown that Maine
or any other state has recognized and allowed a suit
against an employer qua vessel owner under the rubric
of dual capacity. Because it has its roots in admiralty,
which is within exclusively federal jurisdiction, we find it
17a
difficult to believe that such a suit would be recognized
in Maine. We think, therefore, that under these circum-
stances certification is not necessary on either the dual
capacity doctrine or on the availability of a suit against
an employer gua vessel owner.'®
Affirmed in part and vacated in part.
10 Appellee Pittsburg-Corning argues that the United States may
be held liable under a pro tanto theory of recovery. This contention
runs as follows. Under Maine law, an employer who pays workers’
compensation benefits may assert a lien on an employee’s recovery
from a third-party. Therefore, if the negligence of the United
States qua employer contributes to the injuries of any of the
plaintiffs, the United States should be denied its lien to the extent
of its proportionate (pro tanto) share of the damages, and any
judgment against the defendants should be reduced by an amount
~ equal to the portion of the lien denied.
As the government points out, however, the defendants did not
specifically allege entitlement to pro tanto relief in their model com-
plaint against the government. This omission contrasts sharply
with the same parties’ action in the BJW Cases where they spe-
cifically alleged in Count I a right to pro tanto relief. See BIW
Cases, 589 F.Supp. at 1566. Moreover, we discovered nothing in our
review of the record indicating that defendants ever presented this
theory to the district court and they make no specific claim that
the theory was advanced below. Accordingly, the question of pro
tanto relief is not properly before us. Even if it were, the Maine
Supreme Judicial Court has very recently rejected defendants’
position. See Diamond Internatipnal Corp. v. Sullivan & Merit, Inc.,
493 A.2d 1043 (Me. 1985).
18a
APPENDIX B
UNITED STATES DISTRICT COURT
D. MAINE
IN RE ALL MAINE ASBESTOS
LITIGATION (PNS CAsEs)
July 6, 1984
G. William Higbee, Brunswick, Me., Thomas W. Hen-
derson, Pittsburgh, Pa., William A. Mulvey, Jr., James
G. Noucas, Jr., Mark F. Sullivan, Portsmouth, N.H.,
Lawrence C. Winger, Portland, Me., Melvin I. Friedman,
Kreindler & Kreindier, New York City, Dan W. Thorn-
hill, Kittery, Me., Ira A. Levy, P.C., News7k, NWJ.,
Michael P. Thornton, Boston, Mass., Donald G. Lowry,
Lowry & Platt, Portland, Me., for plaintiffs.
Peter L. Murray, Thomas C. Newman, Portland, Me.,
for Amchem Products, Ine.
Harrison L. Richardson, Jeffrey Thaler, Thomas Getch-
ell, Portland, Me., for Armstrong World.
M. Roberts Hunt, Glenn Robinson, Portland, Me., for
Celotex Corp.
C. Alan Beagle, Portland, Me., for Combustion Engi-
neering.
Theodore H. Kurtz, South Paris, Me., for Congoleum.
Frederick C. Moore, Portland, Me., for Cummings In-
Sulation and Claremont Co., Ine.
John R. Linnell, Auburn, Me., for Eagle-Picher Indus-
tries.
19a
Thomas Schulten, Portland, Me., for Eastern Refrac-
tories.
U. Charles Remmel, Portland, Me., for Fibreboard
Corp.
Jack H. Simmons, Lewiston, Me., for Forty-Eight In-
sulations.
Jotham D. Pierce, Jr., Daniel Emery, Portland, Me.,
for G.A.F. Corp.
George F. Burns, Portland, Me., for Garlock, Inc.
Phillip D. Buckley, Bangor, Me., for Johns-Manville.
Thomas F. Monaghan, Kevin G. Libby, Deborah J.
Ross, Portland, Me., for Keene Corp.
Arthur A. Cerullo, Portland, Me., for National Gyp-
sum.
John J. Flaherty, Christopher D. Nyhan, Jonathan S.
Piper, Portland, Me., for Nicolet, Inc.
Nicholas S. Nadzo, John Montgomery, Portland, Me.,
for Owens-Corning Fiberglas.
Peter J. Rubin, Linda Monica, Portland, Me., for
Owens-Illinois.
John A. Mitchell, James G. Goggin, Portland, Me., for
Pittsburgh Corning.
Charles H. Abbott, Steven Wright, Lewiston, Me., for
H.K. Porter Company and Southern Textile Co.
Thomas R. MeNaboe, Mark G. Furey, Portland, Me.,
for Raymark, Inc.
Randall E. Smith, Saco, Me., for J.P. Stevens & Co.
Robert F. Hanson, Mark G. Lavoie, Portland, Me., for
Bath Iron Works Corp.
Paula D. Silsby, Asst. U.S. Atty., Portland, Me., Har-
old J. Engel, Asst. Dir., S. Michael Scadron, Trial Atty.
20a
and Joseph B. Cox, Jr., Torts Branch, Civil Div., U.S.
Dept. of Justice, Washington, D.C., for United States of
America.
Peter W. Culley, Stephen C. Whiting, Portland, Me.,
for Scott Paper Company & Fels Co. & Bendix.
Philip K. Hargesheimer, Roger J. O’Donnell, Platz &
Thompson, Lewiston, Me., for Flintkote Co.
Robert E. Heirshon, Portland, Me., for Standard As-
bestos Mfg.
SUPPLEMENTAL OPINION AND
ORDER OF THE COURT
GIGNOUX, Senicr District Judge.
In its opinion and order dated February 23, 1984, the
Court granted the motion of the United States to dis-
miss, or for summary judgment on, all but one of the
counts in the third-party complaint for contribution and/
or indemnification filed by defendants against the United
States (Model Third-Party Complaint B) in each of the
asbestos-related actions filed in this Court by present and
former employees, and the representatives of deceased
employees, at Portsmouth Naval Shipyard (PNS). See
In re All Maine Asbestos Litigation, 581 F.Supp. 963,
980-81 (D.Me.1984). In that opinion, the Court reserved
decision on so much of the United States’ motion as
sought dismissal of Count VI of Third-Party Complaint
B, a count which seeks noncontractual indemnifiation
and/or contribution from the United States based upon
breach of duties allegedly owed to plaintiffs by the United
States in its capacity as the owner of naval vessels at
PNS. The Court deferred ruling on this aspect of the
United States’ motion until disposition of a then pending
motion for reconsideration of its opinion in Austin v.
Johns-Manville Sales Corp., 508 F.Supp. 313 (D.Me.
1981), a decision upon which the United States had
relied heavily in urging dismissal of Count VI of Third-
2la
Party Complaint B. In Austin, the Court had held that
section 905(a) of the Longshoremen’s and Harbor Work-
ers’ Compensation Act (LHWCA), 33 U.S.C. § 905(a),
barred the third-party claims asserted against Bath Iron
Works (BIW) by the defendant asbestos manufacturers.
Id. at 315-16. On March 9, 1984, being persuaded that
Austin was inconsistent with the subsequent decision of
the United States Supreme Court in Lockheed Aircrajt
Corp. v. United States, 460 U.S. 190, 103 S.Ct. 1033, 74
L.E.2d 911 (1983), the Court vacated its Austin decision.
See In re All Maine Asbestos Litigation (BIW Cases),
589 F. Supp. 1568, 1570 (D.Me. July 5, 1984) (App. A).
The issues presented by the motion to dismiss Count
VI of Third-Party Complaint B have now been fully
briefed and argued. The relevant factual background and
procedural posture are set out in this Court’s previous
opinion. See In re All Maine Asbestos Litigation, 581
F.Supp. 963. For the reasons to be stated, the Court
has concluded that the motion must be denied.
I.
It is undisputed that the PNS employees and deceased
employees in these cases were covered by the Federal
Employees’ Compensation Act (FECA), 5 U.S.C. § 8101
et seq., and that they are barred from suing the United
States as their employer by FECA’s exclusive liability
provision, 33 U.S.C. § 8116(¢c). In Lockheed, the Supreme
Court held that “FECA’s exelusive liability provision,
5 U.S.C. § 8116(¢), does not directly bar a third-party
indemnity action against the United States.” 460 U.S.
at 199, 103 S.Ct. at 1038. Contrary to defendants’ con-
tention, however, Lockheed did not affirmatively confer
upon third parties an indemnity or contribution remedy
against the United States.’ Rather, the Court made clear
1 Although 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 claim. See Johns-
22a
that recourse must be had to the “governing substantive
law.” Id.; see Prather v. The Upjohn Co., 585 F.Supp.
112, 113 (N.D.Fla. Feb. 15, 1984).
In these cases, jurisdiction over Count VI of Third-
Party Complaint B is predicated on the Federal Tort
Claims Act (FTCA), 28 U.S.C. $§ 1346(b), 2671-2680.
Determination of whether under the governing substan-
tive law defendants may sue the United States for in-
denmity or contribution in its capacity as a vessel owner
at PNS therefore must begin with analysis of the provi-
sions of the FTCA.
II.
The FTCA subjects the United States to liability only
“under circumstances where the United States, if a pri-
vate person, would be liable to the claimant in accord-
ance wtih the law of the place where the act or omission
occurred.” 28 U.S.C. § 1846(b); see also 28 U.S.C.
s 2674.* The liability of the United States depends upon
whether a private person in like circumstances would be
liable under state law. United States v. M uniz, 374 US.
150, 158, 83 S.Ct. 1850, 1852, 10 L.Ed.2d 805 (1963);
Brooks v. A.R. & S. Enterprises, Inc., 622 F.2d 8, 10
(1st Cir.1980); Lambertson v. United States, 528 F.2d
441, 444 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct.
2627, 49 L.Ed.2d 374 (1976). Thus, in determining
whether the United States is subject to liability under
the FTCA for contribution or indemnity on a theory of
vessel-owner negligence, this Court must look te the law
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.,
585 F.Supp. 112, 113 (N.D. Fla. 1984).
* Section 2674 provides in relevant part:
The United States shall be liable, respecting the provisions
of this title relating to tort claims, in the same manner and to
the same extent as a private individual under like circumstances.
23a
that a Maine court would apply in analogous circum-
stances.
Ill.
The Court agrees with the United States that its
status at PNS is analogous to that of a compensation-
paying private shipyard employer in Maine. Such an
employer would be covered by the Maine Workers’ Com-
pensation Act (the Maine Act), 39 Me.Rev.Stat.Ann. § 1
et seg. (1978 & Supp.1983-84). Section 4 of the Maine
Act, 39 Me.Rev.Stat.Ann. $4 (Supp.1983-84), as inter-
preted by the Maine Court, provides a covered employer
with immunity from third-party claims for noncontrac-
tual contribution or indemnity arising from work-related
injuries to its employees. 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). This
Court has recently held that BIW, a compensation-paying
private shipyard employer in Maine, is immunized by
Section 4 from such third-party suits brought against it
as an employer. Jn re All Maine Asbestos Litigation
(BIW Cases), 589 F.Supp. 1563 (D.Me. July 5, 1984).
Since the FTCA subjects the United States only to ana-
logous private liability, the United States enjoys the
immunity provided by Section 4 of the Maine Act to a
compensation-paying private shipyard employer from
third-party suits for noncontractual contribution or in-
demnity brought against it in its capacity as an employer.
See Lambertson v. United States, 528 F.2d at 444 (“if
the state would look to a state... statute in determin-
ing the liability of a private person for the tort in ques-
tion, the same statute will be applied in measuring the
conduct of the government.”); Prather v. The Upjohn
Co., 585 F.Supp. at 113-114; Giannuzzi v. Doninger Metal
Products, 585 F.Supp. 1306 (W.D.Pa.1984); see also
Hess v. United States, 361 U.S. 314, 315, 319, 80 S.Ct.
341, 343, 345, 4 L.Ed.2d 305 (1960).
24a
Count VI of Third-Party Complaint B does not, how-
ever, assert a claim against the United States in its
capacity as an employer, but in its capacity as a vessel
owner. The authorities are unclear as to whether the
immunity granted an employer by a workers’ compensa-
tion act protects the employer from liability for employee
suits brought against it in some other capacity. See
generally 2A A. Larson, The Law of Workmen’s Com-
pensation $$ 72.80—72.84 (1983). No Maine authority
known to this Court indicates whether the Maine courts
would recognize this so-called “dual capacity” doctrine.
Consequently, it cannot be known whether section 4 of the
Maine Act protects a compensation-paying employer-
vessel owner from a third-party suit arising from an in-
jury to an employee and brought against the employer
in its capacity as a vessel owner.
IV.
The United States argues that even if section 4 of the
Maine Act does not immunize it from third-party claims
brought against it as vessel owner, maritime law does
not permit the third-party claims here asserted. It makes
a rather elegant argument in support of this position,
dealing separately with the indemnity and contribution
claims.
The United States argues, first, that the claims for
noncontractual indemnity will not lie because the plain-
tiffs in the primary actions seek recovery from defend-
ants for only active fault, while maritime law will award
indemnity only to a party passively at fault. See White
v. Johns-Manville, 662 F.2d 248, 249 (4th Cir.1981) ;
Glover v. Johns-Manville, 662 F.2d 225, 229 (4th Cir.
1981).
The United States contends, second, that the claims for
-contribution cannot be maintained because joint tortfeasor
liability is required to support a contribution claim in a
25a
noncollision admiralty case. See Cooper Stevedoring Co.
v. Kopke, Inc., 417 U.S. 106, 115, 94 S.Ct. 2174, 2179,
40 L.Ed.2d 694 (1974): Griffith v. Wheeling Pittsburgh
Steel Corp., 521 F.2d 31, 44 (3d Cir.1975), cert. denied,
423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976). Cf.
Weyerhauser Steamship Co. v. United States, 372 U.S.
597, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963). It alleges that
there can be no joint tortfeasor liability between it and
defendants because plaintiffs are barred by section 8116
(ec) of FECA from bringing suit against the government
in any capacity, including its status as a vessel owner.
See Patterson v. United States, 359 U.S.. 495, 496, 79
S.Ct. 936, 937, 3 L.Ed.2d 971 (1959) ; Johansen v. United
States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051 (1952) ;
Johnson v. United States, 402 F.2d 778, 779 (5th Cir.),
cert. denied, 394 U.S. 930, 89 S.Ct. 1195, 22 L.Ed.2d 459
(1969).
The Court cannot accept the United States’ argu-
ment. Each aspect of the argument contains a fatal flaw.
First, the United States has not shown that the claims
asserted by plaintiffs in each of these individual actions
are limited to allegations of active fault. The argument
that the indemnity claims are barred by the maritime
active /passive doctrine is dependent upon such a showing.
Second, the Johansen/Patterson line of cases is inappo-
site to the third-party contribution claims asserted by
the defendant manufacturers in these cases. The relevant
inquiry under the FTCA must be as to whether a private
shipyard employer in Maine would be subject to liability
to its employees for negligence in its capacity as a vessel
owner. Such a private shipyard would not be protected
by the Johansen/Patterson doctrine because the shipyard
would not be covered by the FECA. Indeed, by reason
of section 905(b) of the LHWCA, a private shipyard
employer-vessel owner would be subject to liability to
its employees for negligence in its capacity as a vessel
owner. Jones & Laughlin Steel Corp. v. Pfeiffer, 462
26a
U.S. 023, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). The
argument of the United States that defendants’ third-
party claims for contribution are barred by maritime
law because there can be no joint tortfeasor liability be-
tween it and defendants therefore fails.
V.
The viability of defendants’ third-party claims against
the United States in its capacity as a vessel owner thus
turns on whether the Maine courts would apply the dual
capacity doctrine in these circumstances and hold that
section 4 of the Maine Act does not protect a compensa-
tion-paying private employer from a third-party claim
for noncontractual indemnity or contribution brought
against it in its capacity as a vessel owner. Since the
Supreme Judicial Court of Maine has not spoken to this
question, and courts in other jurisdictions have not been
consistent in applying the dual capacity doctrine, see 2A
A. Larson, The Law of Workmen’s Compensation §§ 72.80-
72.84, the Court deems it appropriate at this time to deny
the United States’ motion to dismiss Count VI, 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. The Maine Court has made clear that such
a certification should be made only on a complete record.
See Hiram Ricker & Sons v. Students International Me-
ditation 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).
VI.
In accordance with the foregoing, IT IS ORDERED
that the United States’ motion to dismiss or for sum-
mary judgment on Count VI of the Model Third-Party
Complaint B is DENIED.
27a
APPENDIX C
UNITED STATES DISTRICT COURT
D. MAINE
IN RE ALL MAINE ASBESTOS LITIGATION
Feb. 23, 1984
G. William Higbee, Brunswick, Me., Thomas W. Hen-
derson, Pittsburgh, Pa., William A. Mulvey, Jr., James
G. Noucas, Jr., Mark F. Sullivan, Portsmouth, N.H.,
Lawrence C. Winger, Portland, Me., Melvin I. Friedman,
Kriendler & Kriendler, New York City, Dan W. Thorn-
hill, Kittery, Me., Michael P. Thornton, Boston, Mass., for
plaintiffs.
Peter L. Murray, Thomas C. Newman, Portland, Me.,
for Amchem Products, Inc.
Harrison L. Richardson, Jeffrey Thaler, Thomas Getch-
ell, Portland, Me., for Armstrong World.
M. Roberts Hunt, Glenn Robinson, Portland, Me., for
Celotex Corp.
C. Alan Beagle, Portland, Me., for Combustion Engi-
neering.
Theodore J. Kurtz, South Paris, Me., for Congoleum.
Frederick C. Moore, Portland, }) ., for Cummings In-
sulation and Claremont Co., Inc.
John R. Linnell, Auburn, Me., for Eagle-Picher In-
dustries.
28a
Thomas Schulten, Portland, Me., for Eastern Refrac-
tories.
U. Charles Remmel, Portland, Me., for Fibreboard
Corp.
Jack H. Simmons, Lewiston, Me., for Forty-Eight In-
sulations.
Jothan D. Pierce, Jr., Daniel Emery, Portland, Me.,
for G.A.F. Corp.
George F. Burns, Portland, Me., for Garlock, Inc.
Phillip D. Buckley, Bangor, Me., for Johns-Manville.
Thomas F. Monaghan, Kevin G. Libby, Deborah J.
Ross, Portland, Me., for Keene Corp.
John J. Flaherty, Christopher D. Nyhan, Jonathan S.
Piper, Portland, Me., for N icholet, Inc.
Nicholas S. Nadzo, John Montgomery, Portland, Me.,
for Owens-Corning Fiberglas.
Peter J. Rubin, Linda Monica, Portland, Me., for
Owens-Illinois.
John A. Mitchell, James G. Goggin, Portland, Me., for
Pittsburgh Corning.
Charles H. Abbott, Steven Wright, Lewiston, Me., for
H.K. Porter Co.
Thomas R. McNaboe, Mark G. Furey, Portland, Me.,
for Raymark, Ine.
Charles H. Abbott, Steven Wright, Lewiston, Me., for
Southern Textile Co.
Randall E. Smith, Saco, Me., for J.P. Stevens & Co.
Robert F. Hanson, Mark G. Lavoie, Portland, Me., for
Bath Iron Works Corp.
Paula D. Silsby, Asst. U.S. Atty., Portland, Me., Har-
old J. Engel, Asst. Dir., and S. Michael Seadron, Trial
29a
Atty., Torts Branch, Civil Div., U.S. Dept. of Justice,
Washington, D.C., for U.S.
Peter W. Culley, Stephen C. Whiting, Portland, Me.,
for Scott Paper Co.
MEMORANDUM OF OPINION AND
ORDER OF THE COURT
GIGNOUX, District Judge.
Presently pending in this Court are approximately 225
actions which have been brought by present and former
employees, and the representatives of deceased employees,
of either Bath Iron Works (BIW), a private shipyard
located in Bath, Maine, or Portsmouth Naval Shipyard
(PNS), a government shipyard in Kittery, Maine, against
various manufacturers and suppliers of asbestos-contain-
ing products. Plaintiffs seek to recover compensatory
and punitive damages for injuries the employees alleg-
edly sustained by exposure to and inhalation of asbestos
dust during the course of their employment at the ship-
yards while performing construction or repair work on
U.S. naval vessels. The complaints assert causes of ac-
tion based on negligence, strict liability, and breach of
express and implied warranties. Jurisdiction is predi-
cated upon diversity of citizenship. 28 U.S.C. § 1332(a);
Austin v. Unarco Industries, Inc., 705 F.2d 1, 3 (1st
Cir. 1983).
In addition to denying any liability to the plaintiffs,
certain defendants have commenced third-party actions
for contribution and/or indemnification against the
United States of America. With the Court’s approval,
defendants have filed Model Third-Party Complaint A in
each of the actions filed on behalf of present or former
employees at BIW and Model Third-Party Complaint B
in each of the actions filed on behalf of present or former
employees at PNS. Pursuant to Fed.R.Civ.P. 12(b) (1)
and (6) and Fed.R.Civ.P. 56, the United States has filed
30a
motions to dismiss (or, alternatively, for summary judg-
ment on) the defendants’ model third-party complaints
upon the grounds that this Court lacks subject matter
jurisdiction, that the third-party complaints fail to state
claims upon which relief can be granted, that there is
no genuine issue as to any material fact, and that the
United States is entitled to a judgment as a matter of
law. The record before the Court consists of the plead-
ings, depositions, answers to interrogatories, admissions
and affidavits on file. The issues have been comprehen-
sively briefed and argued.
In ruling upon the United States’ motions to dismiss,
the allegations of the third-party complaints must be
accepted as true, the complaints are to be liberally con-
strued, and they “should not be dismissed unless it ap-
pears that the third-party plaintiffs could ‘prove “no set
of facts in support of [their] claim[{[s] which would en-
title [them] to relief.’” Jenkins v. McKeithen, 395 U.S.
411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404
(1969); Ballou v. General Electric Co., 393 F.2d 398,
399 (1st Cir.1968). In ruling upon the United States’
motions for summary judgment, all facts are to be con-
strued most strongly in favor of the third-party plain-
tiffs and all doubts must be resolved j:, their favor.
Poller v. Columbia Broadcasting System, :nc., 368 U.S.
464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 | 1962). Sum-
mary judgment can be no substitute for trial where
there are disputed factual issues, Walgren v. Howes,
482 F.2d 95, 98 (1st Cir.1973). and summary judgment
may not be granted if there is a “genuine issue as to
any material fact.” Fed.R.Civ.P. 56(c).
The Court will first consider the United States’ mo-
tion to dismiss, or for summary judgment on, Model
Third-Party Complaint A. The Court will then address
the United States’ motion to dismiss, or for summary
judgment on, Model Third-Party Complaint B.
3la
I.
Model Third-Party Complaint A:
BIW Cases
Model Third-Party Complaint A contains nine counts.
In the first eight counts, defendants seek indemnity and /
or contribution by the United States variously based on
its status as a seller of raw asbestos fibers and products
containing asbestos (Counts I, II, III), as the promul-
gator of specifications requiring the use of asbestos prod-
ucts at BIW (Counts IV, V), as the entity in control
of the work at BIW (Counts IV, V, VII, VIII), and as
the owner of naval vessels at BIW (Count VI). In addi-
tion, if it should be determined that admiralty jurisdic-
tion is applicable to the actions, a final count seeks in-
demnification and/or contribution from the United States
on admiralty and maritime law principles (Count IX).
Jurisdiction over these claims is asserted under the Fed-
eral Tort Claims Act (FTCA), 28 U.S.C. $$ 1346(b) &
2671-2680; the Tucker Act, 28 U.S.C. § 1346(a) (2);
and under the general maritime and admiralty jurisdic-
tion of the federal courts, 28 U.S.C. § 1333, the Suits in
Admiralty Act, 46 U.S.C. $$ 741-752, the Public Vessels
Act, 46 U.S.C. $ 781-790, and the Extension of Admir-
alty Jurisdiction Act, 46 U.S.C. § 740.
The Court will separately discuss each of the nine
counts in Third-Party Complaint A.
A. Count I
Count I of Third-Party Complaint A seeks noncon-
tractual indemnification and contribution from the United
States, as a seller of asbestos to certain of the defendants
and to BIW, based upon the government’s alleged negli-
gent failure to provide warnings regarding the hazards
of asbestos exposure. Count I must be dismissed for lack
of subject matter jurisdiction.
32a
The doctrine of sovereign immunity prevents this Court
from exercising jurisdiction over a claim against the
United States unless the United States has consented to
suit on the claim. Honda v. Clark, 386 U.S. 484, 501, 87
S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). Defendants
urge that waiver of the United States immunity from
suit on this claim can be found in the FTCA.
The FTCA subjects the United States to liability
for money damages .. . for . . . personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government while
acting within the scope of his office or employment,
under circumstances where the United States, if a
private person, would be liable to the claimant in ac-
cordance with the law of the place where the act or
omission occurred.
28 U.S.C. § 1346(b); see also 28 U.S.C. § 2674.1 The
United States does not deny either that it sold asbestos or
that it failed to warn regarding the hazards of asbestos
exposure. It contends, however, that Count I alleges con-
duct for which it cannot be liable by reason of 28 U.S.C.
* 2680(a), the discretionary function exception to the
government’s liability under the FTCA.
Section 2680(a) provides in relevant part that the pro-
visions of the FTCA shall not apply to
(a) Any claim . . . based upon the -exercise or
performance or the failure to exercise or perform a
discretionary function or duty on the part of a fed-
eral agency or an employee of the Government,
whether or not the discretion involved be abused.
’ Section 2674 provides in relevant part:
The United States shall be liable, respecting the provisions
of this title relating to tort claims, in the same manner and to
the same extent as a private individual under like circum-
stances, but shall not be liable for interest prior to judgment or
for punitive damages.
33a
The leading case interpreting the discretionary func-
tion exception is Dalehite v. United States, 346 U.S. 15,
73 S.Ct. 956, 97 L.Ed. 1427 (1953). In that case the
Supreme Court stated:
The “discretion” protected by the section is not that
of the judge—a power to decide within the limits of
positive rules of law subject to judicial review. It is
the discretion of the executive or the administrator
to act according to one’s judgment of the best course,
a concept of substantial historical ancestry in Ameri-
can law.
* * * *
It is unnecessary to define apart from this case, pre-
cisely where discretion ends. It is enough to hold, as
we do, that the “discretionary function or duty” that
cannot form a basis for suit under the Tort Claims
Act includes more than the initiation of programs
and activities. It also includes determinations made
by executives or administrators in establishing plans,
specifications or schedules of operations. Where
there is room for policy judgment and decision there
is discretion. It necessarily follows that acts of sub-
ordinates in carrying out the operations of govern-
ment in accordance with official directions cannot be
actionable. If it were not so, the protection of § 2680
(a) would fail at the time it would be needed, that
is, when a subordinate performs or fails to perform
a causal step, each action or nonaction being directed
by the superior, exercising, perhaps abusing, dis-
cretion.
346 U.S. at 34, 35-36, 73 S.Ct. at 967-968 (footnotes
omitted) (emphasis supplied).
The numerous cases decided since Dalehite have not
been consistent in determining the types of activities
which come within the discretionary function exception.
Some general principles have, however, emerged. Thus,
some courts have looked to see if the governmental deci-
sion required a balancing of such policy factors as the
34a
cost of a program and its potential benefit. See, e.g.,
Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir.
1974). This analysis finds support in the previously
quoted statement of the Supreme Court in Dalehite that
“{w]here there is room for policy judgment and decision
there is discretion.” 346 U.S. at 36, 73 S.Ct. at 196.
Other courts have sought to determine whether the deci-
sion was made at a “planning” or at an “operational”
level. See, e.g., Miller v. United States, 583 F.2d 857,
867 (6th Cir. 1978). This approach emphasizes the find-
ing in Dalehite that the exception applied because “‘[t]he
decisions held culpable were all responsibly made at a
planning rather than operational level and involved con-
siderations more or less important to the practicability of
the Government’s fertilizer program.” 346 U.S. at 42,
73 S.Ct. at 971. Still other courts have endeavored to
look both for a “policy judgment” and a “planning level”
decision in determining whether the government’s action
is prdtected by the discretionary function exception. See,
e.g., Madison v. United States, 679 F.2d 736, 739 (8th
Cir. 1982); Blessing v. United States, 447 F. Supp. 1160,
1167-86 (E.D.Pa. 1978).
The precise issue here presented has been determined
by two other courts with conflicting results. In Stewart
v. United States, 486 F. Supp. 178 (C.D.IIl. 1980), the
court held that “the decision to sell the asbestos in un-
marked crates to knowledgeable buyers involved a weigh-
ing of economic and other policy factors and falls within
the discretionary function exception.” Jd. at 184. On
the other hand, in Barlich v. Turner & Newall, Ltd., No.
78-1027 (E.D.Pa. Nov. 26, 1980), the court concluded
that the decision to sell the asbestos without warnings
did not fall within the discretionary function exception.
Id., slip op. at 10.?
*In Shuman v. United States, No. 78-1407-S (D. Mass. June 23,
1985), slip op. at 7-9, the court held that the allegations of the
complaint were sufficient to withstand a motion to dismiss based
on the discretionary function exception, but deferred determination
35a
In support of the instant motion, the United States has
provided uncontroverted evidence concerning the policy
and procedures used by the government in its strategic
materials stockpiling program. At the end of World War
II Congress determined that it was in the best interests
of the United States to stockpile “critical materials being
deficient or insufficiently developed [in the United States]
to supply the industrial, military, and naval ueeds of the
country for common defense . . . in times of national
emergency.” Strategic and Critical Materials Stock Pil-
ing Act of 1946, Pub. L. No. 79-520, 60 Stat. 596 (codi-
fied at 50 U.S.C.A. § 98 et seg. (1951)) (the Stock Piling
Act).* The Stock Piling Act also provided for the rota-
tion of materials in the stockpiles and the disposal of
excess materials, the latter requiring the express approval
of Congress. Pub. L. No. 79-520, §3(d), (e), 60 Stat.
596, 597-98 (July 23, 1946). Pursuant to this provision,
the government often bought strategic materials in times
of scarcity, when prices were high, and sold them in times
of plenty, when prices were low. See Affidavit of John
G. Harlan, Jr., U.S. Ex. 1, 117 at 9 (the Harlan Affi-
davit). It is not surprising, then, that the Stock Piling
Act provided that
[t]he plan and date of disposition shall be fixed with
due regard to the protection cf the United States
against avoidable loss on the sale or transfer of the
material to be released... .
Pub. L. No. 79-520, § 3e), 60 Stat. 596, 597-98 «July
23, 1946) (comes at 50 U.S.C.A. $ 98b(e) (1951).
of the applicability of the exception in the case before it until de-
velopment of a more complete record. The Shuman court apparently
did not have the benefit of the extensive record presented to this
Court in the instant litigation.
3 The Stock Piling Act was completely revised by the Act of
July 30, 1979, Pub. L. No. 96-41, 93 Stat. 319 (codified at 50 U.S.C.A.
$98 et seq. (Supp. 1983)). Relevant portions of the Stock Piling
Act remained substantially unchanged from 1946 through 1979, the
presently relevant time period.
36a
Stockpiles of asbestos were disposed of pursuant to this
authority. See Harlan Affidavit $13. Individual legisla-
tion authorizing the sale of particular lots of asbestos re-
peated the language regarding “avoidable loss.” Jd. at
1 18; see, e.g., Pub. L. No. 89-422, 80 Stat. 138 (May 11,
1966).
The General Services Administration ( GSA) has been
charged with administering the disposal of asbestos since
1949. See 50 U.S.C.A. 98b(e) (1951); Exee. Order No.
12,155, sec. 1-102, 44 Fed. Reg. 53,071 (1979), reprinted
in 50 U.S.C.A. § 98 (Supp. 1983).* John G. Harlan, Jr.,
who was a high-level officer in the GSA until his retire-
ment in 1969, and who was connected with the stockpiling
programs from 1958 through 1969, relates in his affi-
davit how the decision to sell each lot of stockpiled as-
bestos “as is,” with no warranties, and without relabel-
ing or repackaging, was arrived at during his tenure:
The asbestos offered for sale had usually been
stockpiled for years. To test, warranty, repackage,
or relabel such materials at the time of disposal or
to incur avoidable handling . . . expenses would have
resulted in avoidable cost to the government. .. .
Therefore, the invitation to bids prepared pursuant
to my direction and which I approved required that
asbestos be sold in the original packaging, with the
same markings and in the same condition as it was
acquired and stored.
With respect to asbestos, . . . we solicited bids only
from knowledgeable industry members who regularly
used and handled substantial quantities of [it]... .
We assumed these buyers would be better qualified
than our own storage personnel to properly trans-
port, unpackage, handle and use the material in their
manufacturing processes.
*From 1946 through 1949 the Bureau of Federal Supply per-
formed this function. See 50 U.S.C.A. § 98b, “Historical Note”
(1951).
37a
Harlan Affidavit 119 at 11-12. The procedure described
by Harlan for the disposal of asbestos continued after his
retirement. See Affidavit of Readus B. Long, U.S. Ex. 2,
{5 at 3 (the Long Affidavit). It was not until May 1975
that the GSA changed its policy and began placing cau-
tion labels on the asbestos bags. /d. at 3-4.
The record before this Court thus establishes that the
decision of the United States to sell asbestos without
warnings was deliberately made in order to avoid un-
necessary costs in implementation of a congressionally
authorized program for the disposal of surplus asbestos.
The surplus asbestos was sold “as is,’”’ with no warranties,
no relabeling and no repackaging in order that the as-
bestos might be sold with the absolute minimum amount
of cost. The asbestos was sold without warnings in the
belief that the buyers, all knowledgeable members of the
industry, were well aware of the risks of asbestos ex-
posure and could best handle the asbestos. The decision
to do so was made by a high-level administrator as part
of a plan for disposition of surplus asbestos he established
by making policy judgments in accordance with legisla-
tive direction. This Court concurs with the Stewart court
that “[i]n these circumstances, where the Government
sells a product to a knowledgeable industry buyer, cer-
tainly the decision to sell so as to incur the least cost to
the Government, 7.e., not to incur the cost of warning an
experienced and knowledgeable buyer, was a policy con-
sideration and protected by the discretionary function ex-
ception.” 486 F. Supp. at 185.
Jurisdiction of Count I is barred by the discretionary
function exception to the FTCA, 28 U.S.C. § 2680(a).
B. Count II
Count II of Third-Party Complaint A is based upon
the theory of strict products liability. It seeks noncon-
tractual indemnification and contribution from the United
States as a seller of asbestos, which the complaint alleges
88a
to be a defective and unreasonably dangerous product.
Defendants argue that jurisdiction over this claim also
exists under the FTCA. Again, the Court must disagree.
It is well established that the FTCA subjects the gov-
ernment to liability on claims based on negligent or wrong-
ful conduct, but does not extend to claims based on strict
liability. Laird v. Nelms, 406 U.S. 797, 798, 92 S.Ct.
1899, 1900, 32 L.Ed.2d 499 (1972); Dalehite v. United
States, 346 U.S. at 44-45, 73 S.Ct. at 972-973. There is
no doubt that the Maine statute upon which Count II is
based, 14 M.R.S.A. § 221 (1980), is a strict liability stat-
ute. Adams v. Buffalo Forge Co., 443 A.2d 932, 934-44
(Me. 1982). See Restatement (Second) of Torts § 402A
(1965) and Comment a. Consequently, Count II does not
state a claim over which this Court has jurisdiction under
the FTCA.
C. Counts III and IV
In the third and fourth counts of Third-Party Com-
plaint A, defendants seek contractual indemnification
from the United States based upon breach of alleged im-
plied warranties. Jurisdiction over these claims is as-
serted under the Tucker Act, 28 U.S.C. § 1346(a) (2).
Neither of these claims, however, satisfies the jurisdic-
tional requirements of the Tucker Act.
Count III. Count III alleges that the United States
breached an implied warranty that asbestos was safe and
reasonably fit for its intended purpose, which arose from
the sale of raw asbestos and asbestos-containing products
by the United States to certain of the defendants and to
BIW.
In relevant part, the Tucker Act vests the district
courts with jurisdiction of any “claim against the United
States, not exceeding $10,000 in amount, founded...
5 In order to avoid the Tucker Act’s monetary limitation on the
jurisdiction of this Court, defendants have limited the damages
39a
upon any express or implied contract with the United
States.” 28 U.S.C. §1346(a)(2). The jurisdiction
granted by the Tucker Act with respect to contract claims
against the United States extends only to claims arising
out of express or implied-in-fact contracts; it does not
reach claims on contracts implied in law. Merritt v.
United States, 267 U.S. 338, 340-41, 45 S.Ct. 278, 279, 69
L.Ed. 643 (1925); Board of Education v. Bell, 530 F.
Supp. 1130, 11383 (E.D.N.Y. 1982). See also Hatzlachh
Supply Co. v. United States, 444 U.S. 460, 465 n.5, 100
S.Ct. 647, 650 n.5, 62 L.Ed.2d 614 (1980).
The distinction between a contract implied in fact, over
which there is Tucker Act jurisdiction, and a contract
implied in law, over which there is no Tucker Act juris-
diction, is well established. An implied-in-fact contract
contains all the necessary elements of a binding agree-
ment, but, since its express terms have not been reduced
to writing or stated orally, its provisions must be inferred
from the intent and course of conduct of the parties. See
Restatement (Second) of Contracts $$ 4, 19 (1981); 1
A. Corbin, Corbin on Contracts § 19 (1963). An implied-
in-law contract, a so-called quasi-contract, is not a con-
tract at all, but a legal fiction which enables a court to
fashion an equitable remedy to prevent the unjust en-
richment of one party at the expense of another. Jd.
Defendants allege that at the time of sale, the parties
had reached “a tacit understanding that the asbestos in
question was reasonably safe from a medical standpoint.”
Yet defendants fail to point to any evidence that the
United States represented that asbestos could be used
safely in ship construction. To the contrary, the uncon-
troverted evidence is that the government sold the as-
bestos “as is” with an express disclaimer of any warranty,
claimed in each of Counts III and IV to an amount not exceeding
$10,000 per plaintiff, plus costs, disbursements and attorneys fees.
40a
express or implied.* See Harlan Affidavit 719 at 11;
Long Affidavit {4 at 2-3, and Attachment A, § 2. Thus,
it is clear that the type of implied warranty alleged by
defendants in Count III, if it exists at all, would have to
be one implied in law, since it would in no way depend
upon agreement of the parties. Price Brothers Co. v. Phil-
adelphia Gear Corp., 649 F.2d 416, 423 (6th Cir.), cert.
denied, 454 U.S. 1099, 102 S.Ct. 674, 70 L.Ed.2d 641
(1981); Carney v. Sears, Roebuck & Co., 309 F.2d 300,
303 (4th Cir. 1962). See 11 M.R.S.A. § 2-815 (1964).
Without any evidence of consent, this Court cannot find
a contract implied in fact.
Count III does not state a claim over which this Court
has jurisdiction under the Tucker Act.
Count IV. In their fourth claim for relief defendants
allege that the United States, by promulgating specifica-
tions requiring the use of asbestos in connection with the
construction and repair of U.S. naval vessels at BIW,
impliedly warranted that the asbestos-containing prod-
ucts sold by defendants for use at the shipyard, which
conformed in every respect to the specifications, would
not endanger the health and safety of shipyard workers.
Defendants’ theory is that the specifications themselves
created a basis for liability of the United States. In sup-
port of this proposition defendants cite a line of cases,
originating with United States v. Spearin, 248 U.S. 132,
39 S.Ct. 59, 63 L.Ed. 166 (1918).
The Spearin line of cases is inapposite to the present
litigation. Spearin and its progeny support the proposi-
tion that under some circumstances detailed government
® Defendants cite K & M Joint Venture v. Smith Intern., Inc., 669
F.2d 1106, 1110 (6th Cir. 1982), for its holding that “the use of ‘as
is’ does not automatically exclude implied warranties.” That case is
plainly inapposite. In that case the parties had agreed that the
products would carry full warranties. The court held only that the
seller could not change the terms of this express agreement by
adding the term “as is” to the sales invoice.
4la
specifications may create an implied warranty that the
specifications are adequate to produce the desired product
in a satisfactory manner. See Ordnance Research, Inc. v.
United States, 221 Ct.Cl. 641, 609 F.2d 462, 479 (1979).
This warranty, however, extends only to the party in
direct privity with the government. Thus, the Spearin
court awarded damages resulting from faulty specifica-
tions to a building contractor who had contracted directly
with the government for the construction of a dry dock.
Similarly, Ordnance Research concerned the liability of
the United States to a manufacturer of explosives which
entered into a fixed-price contract with the government to
prepare an ignition compound according to a formula
provided by the government. By providing detailed in-
structions for the preparation of the compound, the gov-
ernment warranted that the prescribed safety precau-
tions would be adequate to deal with a volatile compound.
If such a warranty were found to exist in the present liti-
gation based upon government procurement specifications
requiring BIW to use asbestos products in the construc-
tion and repair of naval vessels, it would under these
cases run not to the defendant manufacturers, but to
BIW, the direct government contractor.
The essential flaw in defendants’ argument is that in
order to assert a viable contract claim against the United
States, defendants must establish privity of contract be-
tween themselves and the government. Correlated Devel-
opment Corp. v. United States, 214 Ct.Cl. 106, 556 F.2d
515, 523-25 (1977); Housing Corp. of America v. United
States, 199 Ct.Cl. 705, 468 F.2d 922, 924 (1972); D.R.
Smalley & Sons, Inc. v. United States, 178 Ct.Cl. 593, 372
F.2d 505, 507-08 (1967). No contract, express or implied,
existed between the United States and the manufacturers
who supplied asbestos products to BIW. BIW entered into
its own contracts with defendants for the purchase of
asbestos-containing products. The United States was not
a party to those contracts.
42a
Count IV fails to state a claim which satisfies the juris-
dictional requirements of the Tucker Act.7
D. Counts V, VI and VII
In Counts V, VI and VII of Third-Party Complaint A,
defendants seek noncontractua] indemnification and/or
contribution from the United States based upon alleged
acts of negligence committed by the United States in its
capacity as the owner of naval vessels at BIW (Count VI) ;
as a “Good Samaritan” (Count VII) ; and as the promul-
gator of specifications requiring the use of asbestos prod-
ucts at BIW and as the general supervisor of the work at
BIW (Count V). Defendants urge that jurisdiction over
these claims exists under the FTCA, or, alternatively,
that jurisdiction exists over the claims against the United
States in its vessel-owning capacity, under the admiralty
jurisdiction of the federal] courts.*®
The Court has concluded that the claims for relief as-
serted by defendants in these counts do not come within
the admiralty jurisdiction of this Court. The Court is
persuaded, however, that Count VI, but not Counts V and
VII, states a cognizable claim under the FTCA.
either written or oral argument, and the Court is aware of no prin-
ciple or precedent for the proposition that these allegations, if
proven, would form the basis of a claim of implied contractual
indemnity.
* These alternative jurisdictional bases are mutually exclusive.
The FTCA specifically provides that it does not apply to suits in
admiralty against the United States. 28 U.S.C. § 2680(d). See
Keene Corp. v. United States, 700 F.2d 836, 843 n. 11 (2d Cir.
1983), cert. denied, U.S. —~, 104 S.Ct. 195, 78 L.Ed.2d 171
(1983).
43a
(a) Admiralty Jurisdiction
Defendants’ contention that admiralty jurisdiction ex-
ists over the above claims is foreclosed by the recent deci-
sion of the United States Court of Appeals for the First
Circuit in Austin v. Unarco Industries, Inc., 705 F.2d 1,
8-14 (1st Cir. 1983). The Austin case, like the present
cases, involved a suit on behalf of a BIW shipyard em-
ployee against a manufacturer of asbestos products sold
to BIW. The question of whether admiralty jurisdiction
is applicable in shipyard asbestos litigation was compre-
hensively addressed by Chief Judge Coffin in Austin. Ap-
plying the two-pronged test announced by the Supreme
Court in Executive Jet Aviation, Inc. v. City of Cleveland,
409 U.S. 249, 93 S.Ct. 4938, 34 L.Ed.2d 454 (1972), Judge
Coffin concluded that admiralty jurisdiction was not in-
voked by shipyard asbestos cases. Accord Keene Corp. v.
United States, 700 F.2d 836, 843-45 (2d Cir. 1983), cert.
denied, US. , 104 §.Ct. 195, 78 L.Ed.2d 171
(1983); Owens-Illinois, Inc. v. United States District
Court, 698 F.2d 967, 969-71 (9th Cir. 1983). But see
White v. Johns-Manville Corp., 662 F.2d 234, 239-40 (4th
Cir. 1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037,
71 L.Ed.2d 319 (1982).° Judge Coffin accepted that the
plaintiff’s claim of being injured while working on a ves-
sel situated in navigable waters—the Kennebec River—
met the locality prong of the Executive Jet test. But he
found that it failed to meet the second prong, which re-
quires that “the wrong bears a significant relationship to
traditional maritime activity.” Executive Jet, 409 U.S. at
268, 93 S.Ct. at 504. In his analysis, Judge Coffin fo-
cused on the “activity of the person suffering tortious in-
jury” and concluded that the work performed by an in-
jured shipyard worker is not “traditionally maritime.”
Austin, 705 F.2d at 14.
®In Shuman v. United States, No. 78-1407-S (D. Mass. June 23,
1983), the plaintiff conceded that admiralty jurisdiction did not
apply under the principles articulated by the Court of Appeals in
Austin. Id., slip op. at 4-5.
44a
Even though Austin was a direct action by the personal
representative of a deceased employee against a manu-
facturer, and the present motions address third-party
claims by the manufacturers against the United States,
the analysis so carefully developed by Judge Coffin in
Austin is directly applicable to these proceedings. Austin
requires the court to examine the “activity of the person
suffering tortious injury” to determine whether admir-
alty jurisdiction exists. In these cases, as in Austin, the
BIW employees are the persons alleged to have suffered
tortious injury from their exposure to defendants’ asbes-
tos-containing products. In light of the conclusion in
Austin that such persons are not engaged in “traditional
maritime activity,” Austin precludes the invocation of
admiralty jurisdiction in the present litigation.”
(b) FTCA Jurisdiction
Count VI: Alleged Negligence of United States as Ves-
sel Owner. In Count VI of Third-Party Complaint A,
which sounds in negligence, defendants seek noncontrac-
tual indemnification and/or contribution from the United
States based upon breach of duties allegedly owed to
plaintiffs by the United States in its status as the owner
of U.S. naval vessels at BIW. In support of this claim,
defendants assert that the United States maintained a
constant presence at BIW and had firsthand knowledge of
unsafe working conditions at the shipyard caused by the
use of asbestos materials in the construction and repair
of naval vessels at the shipyard, but nevertheless failed to
warn the BIW employees working on naval vessels in the
Kennebec River about, or otherwise protect them from,
10Insofar as Counts V and VII allege a duty owed directly to
defendants, it might be argued that “the person(s] suffering
tortious injury” are the defendants, rather than the employees
The defendants’ activities, the manufacture and sale of asbestos
containing products, are hardly “traditionally maritime”; thus
Austin precludes the invocation of admiralty jurisdiction under this
analysis as well. See Keene Corp. v. United States, 700 F.2d at 844.
45a
the potential dangers of exposure to asbestos."' The the-
ory upon which defendants assert liability of the United
States under the FTCA is that plaintiffs in these actions
are protected by the Longshoremen’s and Harbor Work-
ers’ Compensation Act, 33 U.S.C. § 901 et seg. (LHWCA),
and have a right of action under Section 5(b) of that Act,
33 U.S.C. § 905(b), to recover damages from the vessel
owner for injury caused by the owner’s negligence.’
In any action brought under the FTCA, a federal court
must apply the “law of the place where the act or omis-
sion occurred” (here, Maine), including its choice of law
rules. 28 U.S.C. §$ 1346(b); Richards v. United States,
369 U.S. 1, 11-13, 82 S.Ct. 585, 591-593, 7 L.Ed.2d 492
(1962); Hess v. United States, 361 U.S. 314, 318 n.7, 80
S.Ct. 341, 345 n.7, 4 L.Ed.2d 305 (1960). The law is
clear that Section 5(b) of the LHWCA provides a cov-
ered employee’s exclusive remedy against a vessel owner.
Hess v. Upper Mississippi Towing Corp., 559 F.2d 1030,
1032 (5th Cir. 1977), cert. denied, 435 U.S. 924, 98 S.Ct.
1489, 55 L.Ed.2d 518 (1978); Vogelsang v. Western
Maryland Railway Co., 531 F.Supp. 11, 13 (D. Md. 1981),
Count VI includes additional! allegations of negligence by the
United States as the promulgator of specifications requiring the use
of asbestos products and as the general supervisor of work per-
formed at BIW. These claims are substantially identical to the
allegations of Count V, which will be considered in the Court’s
discussion of that count, post.
12 Defendants have also asserted on the same facts that the
United States owed plaintiffs duties of care under Maine law in its
capacity as the employer of an independent contractor. See Jenkins
v. Banks, 147 Me. 438, 440, 87 A.2d 908 (1952). See also Thorne
v. United States, 479 F.2d 804 (9th Cir. 1973); Restatement (Sec-
ond) of Torts §§ 413, 414, 416 & 427 (1977). Given the Court’s
disposition of the Section 5(b) claim, and given that the liability
of a vessel owner under Section 5(b) is probably broader than that
of a contractor under state law, see Johnson v. A/S Ivarans Rederi,
613 F.2d 334, 345-48 (1st Cir. 1980), cert. dismissed, 449 U.S. 1135,
101 S.Ct. 959, 67 L.Ed.2d 325 (1981), the Court need not reach this
alternative argument.
46a
affirmed, 670 F.2d 1347 (4th Cir. 1982). Thus, in the
context of this litigation, the Maine courts would be
bound to apply federal maritime law as embodied in Sec-
tion 5(b) of the LHWCA in determining the merits of a
plaintiff’s claim against his vessel owner. See Scindia
Steam Navigation Co. v. De Los Santos, 451 U.S. 156,
165-66 n.13, 101 S.Ct. 1614, 1620-21 n.13, 68 L.Ed.2d 1
(1981) ; Johnson v. A/S Ivarans Rederi, 613 F.2d 334, 340
(1st Cir. 1980), cert. dismissed, 449 U.S. 1135, 101 S.Ct.
959, 67 L.Ed.2d 325 (1981); Shuman v. United States,
Civ. No. 78-1407-S (D. Mass. June 23, 1983), slip op. at
3; Brown v. United States, Civ. No. H-76-434 ( D. Conn.
July 23, 1979), slip op. at 5.
Section 5(b) of the LHWCA permits a covered em-
ployee * who is injured “by the negligence of a vessel’’ to
bring an action for damages “against such vessel as a
third party.” 33 U.S.C. § 905(b). The United States
138 The LHWCA defines an employee under the Act as
any person engaged in maritime employment, including any
longshoreman or other person engaged in longshoring opera-
tions, and any harbor worker including a ship repairman, ship-
builder, and shipbreaker ... .
33 U.S.C. § 902(3). It is undisputed that the BIW employees and
deceased employees in these cases were covered by the LHW7A.
Section 5(b) of the LHWCA provides in relevant part as
follows:
In the event of injury to a person covered under this chapter
caused by the negligence of a vessel, then such person, or any-
one otherwise entitled to recover damages by reason thereof,
may bring an action against such vessel as a third party in
accordance with the provisions of section 933 of this title, 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. . . . If such person was employed by the
vessel to provide ship building or repair services, no such action
shall be permitted if the injury was caused by the negligence
of persons engaged in providing ship building or repair services
to the vessel. The liability of the vessel under this subsection
47a
as the owner of the naval vessels upon which the BIW
employees worked comes within the definition of the term
“vessel” in Section 2(21) of the LHWCA. 33 U.S.C.
§ 902(21).*
The United States concedes that even though admiralty
jurisdiction does not apply to these cases, the FTCA fur-
nishes a jurisdictional basis for defendants’ claim against
the United States in its capacity as a vessel owner. See
Shuman v. United States, slip op. at 5; Brown v. United
States, slip op. at 5-6 n.7. See also Austin v. Unarco
Industries, Inc., 705 F.2d at 13; Edmonds v. Compagnie
Generale Transatlantique, 443 U.S. 256, 273, 99 S.Ct.
2753, 2762, 61 L.Ed.2d 521 (1979). The United States
contends, nevertheless, that Count VI fails to state an
actionable claim.
The Supreme Court in Scindia defined the Section 5(b)
duties owed by a vessel owner to an employee of an inde-
pendent contractor.* In Scindia the Court reaffirmed its
earlier holding in Federal Marine Terminals, Inc. v. Burn-
shall not be based upon the warranty of seaworthiness or a
breach thereof at the time the injury occurred. The remedy
provided in this subsection shall be exclusive of all other
remedies against the vessel except remedies available under
this chapter.
33 U.S.C. § 905(b).
Section 2(21) of the LHWCA defines the term “vessel” as
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 crewmember.
33 U.S.C. § 902(21).
1®The LHWCA itself is silent as to the scope of the vessel’s
liability under Section 5(b), Congress having left that standard of
care to be developed by the courts through the “application of
accepted principles of tort law and the ordinary process of litiga-
tion.” Scindia, 451 U.S. at 166 n. 13, 101 S.Ct. at 1621 n. 13 (quot-
ing S.Rep. No. 92-1125, 92d Cong., 2d Sess. 11 (1972) ).
48a
side Shipping Co., 394 U.S. 404, 415, 89 S.Ct. 1144, 1150,
22 L.Ed.2d 371 (1969), that the vessel owner owes to
such employees “the duty of exercising due care ‘under
the circumstances.’” 451 U.S. at 166, 191 S.Ct. at 1621.
Continuing, the Court stated
[the] duty extends at least... to warning the [em-
ployer] of any hazards on the ship or with respect to
its equipment that are known to the vessel or should
be known to it in the exercise of reasonable care,
that would likely be encountered by the [employer]
in the course of his . . . operations and that are not
known by the [employer] and would not be obvious
to or anticipated by him if reasonably competent in
the performance of his work... . The shipowner
thus has a duty with respect to the condition of the
ship’s gear, equipment, tools, and work space to be
used in the [employer’s] operations; and if he fails
at least to warn the [employer] of hidden danger
which would have been known to him in the exercise
of reasonable care, he has breached his duty and is
liable if his negligence causes injury to [an em-
ployee].
451 U.S. at 166-67, 101 S.Ct. at 1621-22 (citations omit-
ted). The Court set forth three tests for determining the
liability of a vessel owner: (1) whether the injury was
caused by failure of the shipowner to warn of a “hidden
danger” on the ship that is known or reasonably should
have been known to the shipowner, 451 U.S. at 167, i01
S.Ct. at 1622; (2) whether the injury was caused by
conditions under the control of the shipowner, id.; (3)
whether the injury was caused by failure of the ship-
owner to intervene when he knows of a dangerous condi-
tion and of the employer’s failure to correct it, 451 US.
at 175-78, 101 S.Ct. at 1626-27..7 See also Johnson v.
17 The Court declined to adopt the land-based standards of Sec-
tions 343 and 343A of the Restatement (Second) of Torts in con-
struing Section 5(b) of the LHWCA. 451 U.S. at 168 n. 14, 101
49a
A S Ivarans Rederi, 613 F.2d at 348; Ryder v. United
States, 513 F. Supp. 551, 557 (D. Mass. 1981).
Defendants allege in Count VI that the United States,
as the owner of naval vessels at BIW and as the general
supervisor of the work performed on board its vessels,
breached its duty to plaintiffs by negligently failing to
provide warnings regarding “the latent and hidden
perils” posed by the asbestos materials used in the con-
struction and repair of the vessels and by negligently
failing to intervene to protect plaintiffs from the risks,
of which the United States was aware, posed by exposure
to asbestos. Pursuant to the teaching of Scindia, these
allegations state a cognizable claim under Section 5(b)
of the LHWCA. See Schuman v. United States: Brown
v. United States. They are sufficient to withstand the
United States’ motion to dismiss.
Moreover, the record before the Court at this time
raises triable issues of fact regarding the existence and
breach by the United States of the duty of due care al-
legedly owed by it as vessel owner to BIW and its em-
ployees. The disputed factual questions which cannot be
resolved on this record include: whether the United
States knew or should have known of a hidden danger
from asbestos exposure which was unknown to the sh'p-
vard workers; the degree of active control of the vessels
exercised by the United States during the construction
and repair operations; whether warnings were in fact
given by the United States and, if given, to whom were
they given and were they timely and adequate; and, fi-
nally, whether, in all the circumstances, the United States
exercised reasonable care to protect plaintiffs from the
dangers associated with their exposure to asbestos in
constructing and repairing U.S. naval vessels. These dis-
puted issues of material fact, as to which the parties have
S.Ct. at 1622 n. 14. Until Scindia there had been a split among the
circuits as to the applicability of Sections 343 and 343A. See Ryder
v. United States, 513 F.Supp. 551, 557 n.10 (D. Mass. 1981).
50a
presented conflicting documentary evidence, render sum-
mary judgment inappropriate.
As to the claims asserted by defendants in Count VI
of Third-Party Complaint A against the United States in
its capacity as a vessel owner, the government’s motion
to dismiss or for summary judgment must be denied.
Count VII: (Alleged Negligence of the United States
as a “Good Samaritan”). In Count VII of Third-Party
Complaint A, defendants seek noncontractual indemnifi-
cation and/or contribution from the United States pur-
suant to the Good Samaritan doctrine. In support of this
claim, defendants allege that by undertaking to conduct
studies, surveys and experiments designed to protect the
health and safety of asbestos workers, who relied on the
United States’ actions to their detriment, the United
States assumed a duty to provide warnings and otherwise
exercise reasonable care to protect those workers. De-
fendants further charge that the United States breached
its duty of care by failing to provide warnings of, or
otherwise to protect the workers from, the hidden dan-
gers of asbestos exposure.
Under the Good Samaritan doctrine, “one who under-
takes to warn the public of danger and thereby induces
reliance must perform his ‘good Samaritan’ task in a
eaveful manner.” Indian Towing Co. v. United States,
350 U.S. 61, 64-65, 76 S.Ct. 122, 124-125, 100 L.Ed. 48
(1955); Zabala Clemente v. United States, 567 F.2d
1140, 1145 (1st Cir.), cert. denied, 435 U.S. 1006, 98
S.Ct. 1876, 56 L.Ed.2d 388 (1978); Restatement (Sec-
ond) of Torts $$ 323, 324A (1965). The Good Samaritan
doctrine is recognized by federal maritime law. See, e.g.,
Indian Towing Co. v. United States; Zabala Clemente v.
United States; Patentas v. United States, 687 F.2d 707,
714 ‘%d Cir. 1982). And, although the Maine courts have
not aauressed the Good Samaritan doctrine, there is little
doubt that they would adopt this generally accepted doc-
trine as set forth in Indian Towing and the Restate-
5la
ment.'8 See Hill v. Day, 108 Me. 467, 471, 81 A. 581
(1911); Brawn v. Lyford, 103 Me. 362, 365, 69 A. 544
(1907).
In order to sustain a Good Samaritan claim under /n-
dian Towing and the Restatement, the de endants in
these actions must show: (1) an undertaking by the
United States to protect the health and safety of workers
coming into contact with asbestos during shipbuilding
and repair; (2) negligence of the United States in dis-
charging that undertaking; and (3) one of the following
additional elements:
(a) The harm was suffered because of the plaintiffs’
reliance upon the United States’ undertaking;
or
(b) The United States’ negligent performance of its
undertaking increased the risk of harm to the
plaintiffs; or
(c) The United States undertook to perform a duty
owed to the plaintiffs by another entity, in this
case BIW.
See generally Indian Towing Co. v. United States, 350
U.S. at 69, 76 S.Ct. at 126; Zabala Clemente v. United
States, 567 F.2d at 1145; Restatement (Second) of Torts
$$ 323, 324A (1965).
Defendants allege in Count VII that “by virtue of hav-
ing undertaken to act and pursue a course of conduct,
pursuant to statute, regulation or otherwise, involving
the study of the potential dangers, hazards and risks of
exposure to asbestos, and further involving efforts to pro-
18 As defendants point out, the Maine Law Court frequently ap-
plies the provisions of the Restatement in the absence of controlling
precedent when applying the common law of Maine. See, e.g.,
Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 154 (1979);
Letellier v. Small, 400 A.2d 371, 375 (Me. 1979); Nelson v. Maine
Times, 373 A.2d 1221, 1223-25 (Me. 1977); Jones v. Billings, 289
A.2d 39, 42-43 (Me. 1972).
52a
tect the health, safety and welfare of asbestos workers,
the USA owed and/or assumed a duty of care to the de
fendant/third-party plaintiffs and to all asbestos workers,
including plaintiffs, who relied upon the USA’s actions to
their detriment.” Count VII further alleges that the
United States breached its duty of care by failing to en-
force regulations and procedures relating to asbestos ex-
posure and by failing to provide warnings about the po-
tential dangers posed by asbestos products used in the
construction and repair of U.S. naval vessels. These allega-
tions sufficiently state the essential elements of a Good
Samaritan claim so as to prevent the granting of the
United States’ motion to dismiss.
The United States’ motion for summary judgment
must, however, be granted. The affidavits and other docu-
mentation submitted by the parties disclose no more than
that the government conducted studies, surveys and ex-
periments concerning the medical effects of asbestos ex-
posure, issued minimum health and safety requirements
to contract shipyards and monitored the shipyards’ com-
pliance with these requirements through the use of on-
site Navy inspectors. There is no indication in the record
that BIW employees were even aware of or justifiably
relied for their safety on these activities of the United
States. Such conduct is insufficient as a matter of law
to create an affirmative duty of care between the federal
government and the employees of an independent con-
tractor. Ramos Perez v. United States, 594 F.2d 280, 287-
90 (Ist Cir. 1979); Zabala Clemente v. United States,
567 F.2d 1140 (1st Cir.), cert..denied, 435 U.S. 1006,
98 S.Ct. 1876, 56 L.Ed.2d 388 (1978); Kirk v. United
States, 270 F.2d 110, 117-18 (9th Cir. 1959). But see
S.A. Empresa de Viacao Aerea Rio Grandense v. United
States, 692 F.2d 1205, 1207-08 (9th Cir. 1982), cert.
granted, —— US. , 103 S.Ct. 2084, 77 L.Ed.2d 296
(1983) ; United Scottish Insurance v. United States, 692
F.2d 1209 (9th Cir. 1982), cert. granted, US. —,
103 S.Ct. 2084, 77 L.Ed.2d 296 (1983). The impletenta-
58a
tion of various safety control measures, whether pursu-
ant to statute, regulation, or as a matter of policy, does
not constitute an undertaking which would oblige the
government to insure the safety of all shipyard workers
who might benefit from these regulations. While the de-
fendants assert that the actions of the United States
were “far more encompassing than mere safety regula-
tions,” the type of conduct found in the record fails to
establish a direct relationship between the government
and asbestos workers such that the United States can be
said to have assumed ultimate responsibility for the
health of those workers. See Roberson v. United States,
382 F.2d 714, 720-21 (9th Cir. 1967). On the present
record, the government has established that there is “no
genuine issue as to any material facts” and that there-
fore it “is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
The United States’ motion for summary judgment on
Count VII of Third-Party Complaint A must be granted.
Count V: (Alleged Negligence of the United States as
Promulgator of Specifications and as General Supervisor
of Work at BIW). In Count V of Third-Party Complaint
A, defendants seek non-contractual indemnification from
the United States based upon breach of a duty allegedly
owed by the United States directly to defendants to ex-
ercise reasonable care to provide for the safety of work-
ers at BIW and other private shipyards who were en-
gaged in the construction and repair of U.S. naval ves-
sels, to provide warnings to such workers concerning the
potential dangers of exposure to asbestos, to promulgate
specifications for thermal insulation and other products
which were safe and could be used in a safe manner, and
to assure that the thermal insulation and other products
provided by defendants to BIW and other private ship-
yards were not used in a fashion which would endanger
the health and safety of the shipyard workers.
54a
Defendants contend that the duty allegedly owed by the
United States to defendants which underlies the in-
demnification claim in Count V arose as a result of a
“unique relationship” between the United States and de-
fendants in the development of asbestos insulation prod-
ucts for use in the construction and repair of naval ves-
sels. This unique relationship is said to result from the
joint endeavors of the United States and the asbestos in-
dustry over a period of four decades in developing as-
bestos-containing thermal insulation products suitable for
use by the Navy.
Defendants have cited absolutely no authority for the
novel theory of indemnification asserted in Count V, and
the Court is not aware of any case law or principle that
Supports the proposition advanced by defendants in this
count. Count V will be dismissed for failure to state a
cognizable claim against the United States.
E. Count VIII
In Count VIII of Third-Party Complaint A, defendants
seek noncontractual indemnification and /or contribution
from the United States based upon breach by the United
States of a duty allegedly owed to plaintiffs to provide
Warnings regarding the potential dangers of exposure to
tobacco smoke in general and in conjunction with expo-
Sure to products containing asbestos.
Defendants state that Count VIII simply realleges all
their prior claims and does no more than expand the
scope of the United States’ alleged duty to warn to in-
clude an obligation to provide information about the
synergistic effect of asbestos and tobacco. Because Count
VIII includes no substantive allegation which is not in-
corporated in other counts, Count VIII will be stricken as
redundant. See Fed. R. Civ. P. 12(f)."
1 Defendants properly concede that Count VIII does not seek to
impose liability on the United States on the basis of the Surgeon
55a
F. Count 1X
Count IX of Third-Party Complaint A repeats and
reiterates all prior claims for relief, and alternatively
alleges admiralty jurisdiction as the jurisdictional basis
for those claims. Since the Court has concluded that ad-
miralty jurisdiction is not applicable to these cases, Count
IX must be dismissed.
II.
Model Third-Party Complaint B:
PNS Cases
Model Third-Party Complaint B also contains nine
counts. Each count is virtually identical to the correspond-
ing count in Third-Party Complaint A and the same
jurisdictional bases are asserted.*” The only factual dif-
ference between the BIW cases and the PNS cases is that
in the former the injured shipyard workers were em-
ployed by BIW, a private shipyard, whereas in the latter
the injured workers were employed by PNS, a govern-
ment shipyard. This distinction, however, does not affect
the rationale which has led this Court to conclude that
Counts I, II, III, V, VII, VIII and IX of Third-Party
Complaint A must be dismissed. The government’s mo-
tion to dismiss or for summary judgment on the corre-
sponding counts in Third-Party Complaint B will there-
fore be granted. Counts IV and VI of Third-Party
General’s failure to release information to the general public con-
cerning the increased hazards of combined exposure to asbestos and
tobacco smoke. See, ¢.g., Gercey v. United States, 540 F.2d 536, 539
(1st Cir. 1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d
804 (1977) ; Gelley v. Astra Pharmaceutical Products, Inc., 610 F.2d
558, 562-63 (8th Cir. 1979).
*” The Court notes, however, that defendants have added to the
claims asserted in Counts VI and VIII of Third-Party Complaint B
an allegation that the United States negligently failed to nrovide
plaintiffs with warnings about the potential dangers of asbestos
exposure subsequent to the time that plaintiffs terminated their
employment with the government.
56a
Complaint B are the only counts requiring further dis-
cussion.
Count IV.
In Count IV of Third-Party Complaint B, defendants
allege that the United States, by promulgating specifica-
tions requiring the use of asbestos on naval vessels con-
structed and repaired at PNS, impliedly warranted that
the asbestos-containing products sold by defendants for
use at the shipyard, which conformed in every respect to
the specifications, would not endanger the health and
safety of shipyard workers. Defendants’ theory is that
the specifications themselves create a basis for liability
of the United States, of which this Court has jurisdiction
under the Tucker Act, 28 U.S.C. § 1346(a) (2). The
Court must disagree.
In support of Count IV, defendants rely on United
States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166
(1918), and its progeny, including Ordnance Research,
Inc. v. United States, 221 Ct. Cl. 641, 609 F.2d 462
(1979). This line of cases stand for the proposition that
‘“[w]hen the government issues design specifications of a
detailed nature . . . it warrants the sufficiency and ef-
ficacy of those specifications to produce the desired prod-
uct in a satisfactory manner.” Ordnance Research, Inc.
v. United States, 609 F.2d at 479 (citations omitted).
The Spearin line of cases addresses government contracts
entirely different from those involved in the PNS cases.
First, in those cases a private entity was required to com-
ply with detailed government specifications in perform-
ing a contract with the government. In these cases, the
entity performing pursuant to the detailed specifications
was the government itself, not a private contractor. If
any warranty such as that alleged by defendants were
found to exist, it could run only from the government to
itself. Second, in the PNS cases, the only relationship be-
tween defendants and the government arose when the
government, as owner of the shipyard, purchased from
57a
defendants asbestos products complying with military
specifications. It is well established that a vendor/vendee
relationship creates no implied agreement by the buyer to
indemnify the seller for injuries resulting from the use
of the purchased product. In re General Dynamics As-
bestos Products, 539 F. Supp. 1106, 1110-12 ( D. Conn.
1982); Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 723
(2d Cir. 1978); White v. Johns-Manville Corp., 662 F.2d
243, 248 (4th Cir. 1981).
Count IV fails to state a viable claim under the Tucker
Act.
Count VI
In Count VI of Third-Party Complaint B, defendants
seek noncontractual indemnification and/or contribution
from the United States based upon breach of duties al-
legedly owed to plaintiffs by the United States in its
status as the owner of naval vessels at PNS. In support
of its motion to dismiss this count, the United States
relies heavily on Austin v. Johns-Manville Sales Corp.,
508 F. Supp. 313, 315-16 (D. Me. 1981), where this
Court held that Section 5(a) of the LHWCA, 33 U.S.C.A.
§$ 905(a), barred third-party claims for contribution as-
serted against BIW by the defendant asbestos manufac-
turers.
In opposition to the government’s motion to dismiss
Count VI, defendants argue that this Court’s interpreta-
tion of Section 5(a) of the LHWCA in Austin, is incon-
sistent with the Supreme Court’s recent decision in Lock-
heed Aircraft Corp. v. United States, U.S. ——, 103
S.Ct. 1033, 74 L.Ed.2d 911 (1983). In Lockheed the
Court held that third-party claims were not barred by
Section 8116(c) of the Federal Employee’s Compensation
Act, the language of which is identical to Section 5(a)
of the LHWCA. Defendant Raymark Industries, Inc. has
filed with this Court a motion for reconsideration of its
Austin ruling. The motion for reconsideration has been
58a
fully briefed and will be assigned for oral argument in
the near future. Because of the interrelationship between
Raymark’s motion for reconsideration of the Austin de-
cision and the United States’ motion to dismiss Count VI
of Third-Party Complaint B, the Court will reserve deci-
sion on this aspect of the instant motion. The matter
will be assigned for further briefing and oral argument
after the Court’s disposition of the motion for reconsider-
ation of Austin.
Ill.
Order
In accordance with the foregoing, it is
ORDERED as follows:
(1) That the motion of the United States to dismiss,
or for summary judgment on, Counts I, II, III,
IV, V, VII, VIII and IX of Model Third-Party
Complaint A is GRANTED;
(2) That the motion of the United States to dismiss,
or for summary judgment on, Count VI of
Model Third-Party Complaint A is DENIED.
(3) That the motion of the United States to dismiss,
or for summary judgment on, Counts I, II, III,
IV, V, VII, VIJI and IX of Model Third-Party
Complaint B is GRANTED;
(4) That decision is RESERVED on the motion of
the United States to dismiss, or for summary
judgment on, Count VI of Model Third-Party
Complaint B.
59a
APPENDIX D
UNITED STATES COURT OF APPEALS
FIRST CIRCUIT
Nos. 84-2033, 84-2034
MILDRED V. DRAKE,
Plaintiff, Appellee,
Vv.
RAYMARK INDUSTRIES, INC., et al.,
Defendants and Third-Party
Plaintiffs, Appellants.
MILDRED V. DRAKE,
Plaintiff, Appellee,
Vv.
RAYMARK INDUSTRIES, INC., et al.,
Defendants and Third-Party
Plaintiffs, Appellees,
BATH IRON WorRKS CORPORATION,
Third-Party Defendant,
Appellant.
Argued April 3, 1985
Decided Aug. 27, 1985
Mark G. Furey, Portland, Me., with whom Thomas R.
McNaboe, Thompson, McNaboe & Ashley, Bernstein,
Shur, Sawyer & Nelson, Hunt, Thompson & Bowie, Ver-
60a
rill & Dana, Portland, Me., and Skelton, laintor, Abbott
& Orestis, Lewiston, Me., were on brief, for Raymark
Industries, Inc.
Robert F. Hanson, Pertland, Me., with whom James D.
Poliquin and Norman & Hanson, Portland, Me., were on
brief, for Bath Iron Works Corp.
Before CAMPBELL, Chief Judge, BOWNES and TOR-
RUELLA, Circuit Judges.
BOWNES, Circuit Judge.
This is an appeal from a summary judgment granted
third-party defendant-appeliee Bath Iron Works Corpora-
tion (BIW or Shipyard) on claims against it for con-
tribution or indemnity by defendants and third-party
plaintiffs-appellants Raymark Industries, Inc. and other
manufacturers and distributors of asbestos products.
I. BACKGROUND
This is one of approximately fifty cases brought in the
District Court of Maine by present and former employees
of BIW, or the representatives of their estates, against
a large number of manufacturers and suppliers of as-
bestos products. BIW is in the shipbuilding and ship re-
pair business. The complaints in the primary actions seek
compensatory and punitive damages for injuries the em-
ployees of BIW allegedly sustained from exposure tu ap-
pellants’ products during the course of their employment
at the Shipyard.
With the approval of the district court, the defendants-
appellants filed a Model Third-Party Complaint against
BIW in each of the actions against them. The case at
bar tests the soundness of the district court’s ruling on
motion for summary judgment that none of the six
counts of the Model Third-Party complaint could be main-
tained. We restate the allegations in the complaint
seriatim.
6la
Count I alleges that BIW knew or should have known
that the material it purchased for use in the construction
and/or repair of ships included asbestos and products
containing asbestos, and that its employees would come
into contact with such materials; that BIW knew or
should have known that working with asbestos and prod-
ucts containing asbestos posed unreasonable health dan-
gers unless adequate precautionary measures were taken;
that BIW wantonly, recklessly and negligently failed to
exercise due care vis-a-vis its employees in ten specific
ways; that any damages to plaintiffs were caused by
BIW; that any judgment against the defendants should
be reduced by the amount of BIW’s workers’ compensa-
tion lien under the Longshoremen’s and Harbor Workers’
Compensation Act (LHWCA) or, in the alternative, the
defendants are entitled to a judgment against BIW in
the amount of such liens. Defendants also seek declara-
tory relief that BIW be ordered to pay directly to them
any future workers’ compensation benefits to which the
plaintiffs became entitled.
Count II seeks contribution or indemnity for any puni-
tive damage judgments for the plaintiffs.
Count III alleges that the construction of and/or re-
pair of ships involving asbestos and products containing
asbestos were inherently dangerous activities; that de-
fendants had no control over the products sold once they
were in the possession of BIW; that BIW owed defend-
ants a duty, independent of any duty to its employees, not
to use asbestos and products containing asbestos in such
a willful, wanton, reckless or negligent manner as to
make them unreasonably hazardous to BIW employees
or other persons; that defendants’ products were not dan-
gerous to BIW employees if used with due care; that de-
fendants are entitled to be indemnified by BIW to the
full extent of any judgments against them or, in the al-
ternative, to the extent of BIW’s workers’ compensation
liens.
62a
Count IV alleges a claim for contribution for any dam-
ages for consequential and punitive damages recovered by
plaintiffs against defendants, including loss of consortium.
Count V alleges that BIW had a duty to provide medi-
cal examinations, diagnosis, and treatment for the ill-
ness of its employees; that BIW’s medical personnel
wantonly, recklessly and negligently failed to perform
their duties; that such failure caused or aggravated the
asbestos-related diseases of the employees; that defend-
ants are entitled to contribution and indemnification by
BIW for any judgments against them or, in the alterna-
tive, to indemnification to the extent of BIW’s workers’
compensation lien.
Count VI alleges that BIW was the owner or owner
pro hac vice of the vessels upon which its employees
worked within the meaning of 33 U.S.C. § 902(21); that
BIW acted willfully, wantonly, recklessly and negligently
as owner or owner pro hac vice; that BIW’s conduct was
the proximate cause of the damages claimed by plaintiffs;
that under 33 U.S.C. § 905(b), BIW is liable to plaintiffs
for all damages claimed in their complaints against de-
fendants.
With one exception, all of the claims for contribution
and/or indemnity are based on alleged breaches of duty
by BIW to its employees. The exception is paragraph 19
of Count III which states in pertinent part: “BIW owed
defendants a duty, independent of any duty it owed its
employees, not to employ” the asbestos materials so as to
make them unreasonably dangerous to the employees or
others. Defendants failed to state whether the alleged
duty is based on tort or contract. Nor did they allege
the existence of an express or implied contract between
BIW and the defendants regarding the use of asbestos
material. The defendants, then, “are asking us to hold a
user liable to a manufacturer for the former’s negligent
use of the latter’s defective product.” Zapico v. Bucyrus-
Erie Co., 579 F.2d 714, 723 (2d Cir. 1978) (Friendly,
63a
J.). Like the Second Circuit, “{t]his we decline to do.”
Id.; cf. 2A Larson, The Law of Workmen’s Compensa-
tion § 76.84 at 14-746 (1985) (“But when a purchaser
buys a product, does he make an implied contract with
the manufacturer to use the goods in such a way as not
to bring liability upon the manufacturer? This would be
stretching the concept of contract out of all relation to
reality.”). The district court did not expressly rule on
this claim, probably because it was not pressed below.
Certainly, the defendants have not adverted to it at all in
their brief to this court. Given these circumstances, we
consider this claim to have been dropped but, in any
event, we rule that it must be dismissed for failure to
state a cause of action upon which relief can be granted.
The basis of liability for defendants’ third-party action
is, therefore, grounded solely on BIW’s alleged breach of
duties to its employees.
The district court rendered three separate opinions.
On Counts I through V, which we shall refer to as the
land-based or nonmaritime claims, the court granted sum-
mary judgment for BIW, excepting only those claims for
pro tanto indemnification. 589 F. Supp. 1563 (D. Me.
1984). The court based its ruling on the grounds that
the exclusivity provision of the Maine Workers Compen-
sation Act (MWCA), Me. Rev. Stat. Ann. tit. 39, § 4
(1978 and Supp. 1983-84), had been interpreted by the
Maine Supreme Judicial Court to bar all noncontractual
rights of contribution and indemnity. McKellar v. Clark
Equipment Co., 472 A.2d 411, 416 (Me. 1984); Roberts
v. American Chain & Cable Co., Inc., 259 A.2d 43, 51
(Me. 1969). In a subsequent opinion, the district court
granted summary judgment for BIW on the pro tanto
claims.
Because no benefits have been paid to Forrest Drake,
his widow or his dependents under the Maine Work-
ers’ Compensation Act, and BIW and its insurer
have waived any workers’ compensation lien under
64a
the LHWCA, there is no predicate for the pro tanto
relief sought by defendants against BIW in their
third-party complaints.
On Count VI the district court held “that BIW was not
during the relevant periods the owner pro hac vice of ves-
sels 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 barred by Section 905(a) of the
LHWCA.”
We shall review first the district court’s disposition of
Count VI, for contribution based on the alleged negli-
gence of the BIW qua shipowner vis-a-vis the injured
employees. We then evaluate the court’s disposition of
the land-based claims. Our ultimate conclusion is the
same as the district court’s—that none of the counts
contained in the model third-party complaint can with-
stand a motion for summary judgment—although we
reason to that conclusion via a different route.
II. THIRD-PARTY LIABILITY AS A SHIPOWNER
UNDER § 905 (b)
In Count VI of their Model Third-Party Complaint,
defendant manufacturers press a claim against Bath Iron
Works for shipowner negligence, purportedly based on
the Longshore and Harbor Workers’ Compensation Act '
‘LHWCA or Longshore Act), 33 U.S.C. § 905(b). De-
fendants correctly claim that determinations regarding
the viability of $905(b) negligence claiins are governed
by federal maritime principles. Jones & Laughlin Steel
Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.
2d 768 (1983); Scindia Steam Navigation Co. v. De Los
Santos, 451 U.S. 156, at 165 n. 18, 101 S.Ct. 1614 at
1 Congress has modified the name of the Act by changing “Long-
shoremen” to “Longshore.” See Longshore and Harbor Workers’
Compensation Act Amendments of 1984, Pub. L. No. 98-426, § 27(d).
65a
1621 n. 13, 68 L.Ed. 2d 1 (1981). Turning to the statute,
the pertinent language reads as follows:
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 ac-
tion against such vessel as a third party in accord-
ance with the provisions of section 933 of this title,
and the employer shall not be liable to the vessel for
such damages directly or indirectly and any agree-
ments or warranties to the contrary shall be void.
33 U.S.C. § 905(b) (emphasis added).
In the case before us, the injured employee’s represen-
tative did not bring an action against BIW as shipowner
pro hac vice, or against any other shipowner; she filed
no $ 905(b) action whatsoever. Instead, she filed strictly
nonmaritime, state causes of action against the various
asbestos product manufacturers and suppliers based on
Maine law and grounded on diversity jurisdiction. Her
claims involved strict liability, breach of warranty and
negligence. Despite the nonmaritime nature of these
primary claims, defendants seek to assert $905(b) as a
basis for indemnity or contribution? from BIW, which
by its terms confers authority to bring a shipowner negli-
gence action upon the injured employee or his/her rep-
resentative, and the employer as statutory assignee. See
33 U.S.C. § 933(b); Rodriguez v. Compass Shipping Co.,
2 Defendants allege no contractual basis for indemnity but only
noncontractual indemnity. As the noncontractual indemnity here
appears to be based upon tort theory, see Zapico v. Bucyrus-Erie
Co., 579 F.2d 714, 718 (2d Cir. 1978), and is in effect only a more
extreme form of contribution, see id., we shall refer henceforth
only to defendants’ right to contribution. Clearly, if defendants
have no right to partial contribution based on applicable tort prin-
ciples, they have no right to indemnification of the whole of their
damages based on those same tort principles.
~e-
66a
Ltd., 451 U.S. 596, 101 S.Ct. 1945, 68 L.Ed.2d 472
(1981).
Although contribution has a long and venerable history
in admiralty and maritime affairs, see Cooper Stevedor-
ing Co. v. Kopke, 417 U.S. 106, 94 S. Ct. 2174, 40 L.Ed.
2d 694 (1974); see generally Staring, Contribution and
Division of Damages in Admiralty Cases, 45 Calif.L.Rev. —
304 (1957), we doubt whether a contribution action
premised solely upon § 905(b) can proceed without hav-
ing as its predicate a § 905(b) primary action properly
brought by one of the parties authorized by the statute.
Especially in a situation such as this, where the primary
action is based on distinctly nonmaritime rights and
duties—duties owed by any manufacturer of a product
later determined to be defective and which bear no sig-
nificant relationship to maritime commerce—it seems that
defendants cannot use § 905(b) as a source of a right to
contribution from a shipowner or owner pro hac vice.
Our study of the decisional law failed to uncover any
eases where § 905(b) was allowed to be asserted as the
basis for liability in a third-party action where it was
not sued upon in a primary action. We note, however,
that the parties did not raise or brief this question. We
therefore shall bracket this question and assume argu-
endo that defendants are not barred from bringing a
contribution action based on the plaintiff’s omission of a
$ 905(b) claim in her action.
Appellee BIW contends that defendants’ § 905(b) ac-
tion cannot be maintained because the injury allegedly
caused by BIW’s dereliction of duty as a shipowner pro
hac vice was not a maritime tort, which is a fundamental
requirement for an injury to be cognizable under § 905
(b). The appellants respond by arguing that an inde-
pendent basis for admiralty jurisdiction need not be
shown to redress an injury under the section; all that
is required is satisfaction of the literal words of the
67a
statute, which does not so much as mention the words
“maritime tort” or “admiralty jurisdiction.”
The question before us, then, is: does § 905(b) recog-
nize only maritime torts, i.e., torts cognizable in admir-
alty (regardless of the actual basis of jurisdiction, such
as diversity), or does its range encompass nonmaritime
torts occurring on a vessel but where the tests for ad-
miralty jurisdiction are not satisfied? After careful
study, we think the scope of § 905(b) is limited to mari-
time torts. To explain our conclusion, we must examine
the definition of the term “maritime tort,” retrace the
origin of § 905(b) in the warranty of seaworthiness, and
demonstrate why the alternative conclusions about the
scope of § 905(b) that have been advanced fail to accord
with logic, the legislative history of the section, and the
admiralty “traditions of simplicity and practicality.”
Kermarec v. Compagnie Generale Transatlantique, 358
U.S. 625, 631, 79 S.Ct. 406, 410, 3 L.Fd.2d 550 (1959) ;
The Lottawanna, 88 U.S. (21 Wall.) 558, 575, 22 L.Ed.
654 (1874).
A. Maritime Tort
It is elementary, almost axiomatic, that maritime torts
are those which fall within the admiralty jurisdiction or
satisfy the tests for the application of admiralty law.
Executive Jet Aviation v. Cleveland, 409 U.S. 249, 93
S.Ct. 498, 34 L.Ed.2d 454 (1972), makes this point
plainly: “{d]jetermination of the question whether a tort
is ‘maritime’ and thus within the admiralty jurisdiction
of the federal courts... .” Jd. at 253, 93 S.Ct. at 497
(emphasis added) ; see als’ Victory Carriers, Inc. v. Law,
404 U.S. 202, 204, 92 S.Ct. 418, 420, 30 L.Ed.2d 383
(1971). The Court in Executive Jet began its analysis
of the proper scope of maritime tort jurisdiction from
this premise, and rejected the traditional dependence of
the determination solely upon the “locality of the wrong.”
Id. The Court concluded that a showing of a “relation-
68a
ship of the wrong to traditional maritime activity is
often more sensible and more consonant with the pur-
poses of maritime law than is a purely mechanical ap-
plication of the locality test.” Jd. 409 U.S. at 261, 93
S.Ct. at 501; see also Austin v. Unarco Industries, Inc.,
705 F.2d 1 (1st Cir.), cert. dismissed, 463 U.S. 1247,
105 S.Ct. 34, 77 L.Ed.2d 1454 (1983). In Foremost In-
surance Co. v. Richardson, 457 U.S. 668, 673, 102 S.Ct.
2654, 2657, 73 L.Ed.2d 300 (1982), the Court held that
this two-pronged situs and status test must be met in all
actions sought to be governed by admiralty law.
Before Executive Jet, then, to be classified as a mari-
time tort the wrong had to fall within admiralty juris-
diction, which in turn required only that the wrong occur
or take effect on navigable waters. Foremost Insurance,
457 U.S. at 672, 102 S.Ct. at 2657; Kermarec v. Com-
pagnie Generale, 358 U.S. at 628, 79 S.Ct. at 408; Wil-
liams v. Avondale Shipyards, Inc., 452 F.2d 955, 958-59
(5th Cir.1971). One special maritime tort action, the
strict liability unseaworthiness action for stevedores and
other shorebased maritime workers, however, required
that additional elements besides admiralty jurisdiction be
satisfied. To fasten liability without fault onto a vessel
and its owners, the courts also required that the vessel
be “in navigation,” Waganer v. Sea-Land Service, Inc.,
486 F.2d 955, 958 (5th Cir.1973); see also Williams v.
Avondale, 452 F.2d at 957; G. Gilmore & C. Black, The
Law of Admiralty 441 (1975), and that the injured
worker or his work group be engaged in traditional
“ship’s work,” not some land-based specialty work. West
v. United States, 361 U.S. 118, 122, 80 S.Ct. 189, 192,
4 L.Ed.2d 161 (1959); United Pilots Association v. Hal-
ecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959).
The unseaworthiness action, despite its strictures, en-
gendered a vast amount of litigation and imposed great
costs upon stevedore employers and shipowners, which
resulted in congressional abolition of it through the pas-
69a
sage of §905(b). We briefly review the genesis and
history of the unseaworthiness action before turning to
examine the legislative history of § 905(b) and the other
1972 Amendments to the LHWCA.
B. Unseaworthiness
Almost twenty years after the original passage of the
Longshore Act, the Supreme Court was confronted with
a case where a stevedore, injured when a ship’s winch
and boom broke, sought to sue the ship and its owner for
damages. The Court held that the ship’s obligation of
seaworthiness, traditionally owed by ships to seamen,
extend to a stevedore who was injured while aboard the
vessel and incurring seamen’s hazards. Seas Shipping
Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099
(1946). The unseaworthiness claim so authorized omit-
ted any requirement that a shipowner’s negligence or
fault in causing the injury be proven. In Sieracki, the
Court stated that its holding did not conflict with the
Longshore Act because the LHWCA did not foreclose
personal injury actions under general admiralty law ex-
cept against the employer. /d. at 101, 66 S.Ct. at 880.
Commentators have since suggested that Sieracki was a
direct result of the failure of Congress to improve the
paltry compensation payable under the LHWCA and
raise the incentive for safety in the shipping industry.
G. Gilmore & C. Black, The Law of Admiralty at 446-48.
Ten years later, with “Sieracki-seamen”’ suits flourish-
ing with a seemingly inequity. The absolute nondelega-
ble seaworthiness warranty imposed upon a shipowner
had resulted in shipowner liability even where others,
chiefly the stevedoring companies, were responsible for
the workers’ injuries. In Ryan Stevedoring Co. v. Pan
Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed.
133 (1956), the Court decided that the vessel could re-
cover the damages for which it was liable to the injured
longshoreman from the stevedore company if it had
70a
breached an express or implied warranty of workmanship
performance owed the vessel. Thus was erected the final
leg of the triangular damage suits which had originated
with Sieracki.
Congress undertook a comprehensive reform of the
Longshore Act in 1972, including as a prime element the
abolition of the Sieracki-Ryan unseaworthiness action for
covered workers. See Aparicio v. Swan Lake, 643 F.2d
1109 (5th Cir.1981). In its place a complex quid pro
quo was effectuated which included for covered workers
higher compensation for injuries, and the option of bring-
ing a negligence action against the vessel if the injury
was caused “by the negligence of a vessel.” 33 U.S.C.
$905(b); see Scindia Steam Navigation, 451 U.S. at
164-66, 101 S.Ct. at 1620-22. Strict liability actions un-
der unseaworthiness theory and contribution or indem-
nity from an employer based on express or implied war-
ranties were expressly barred. 33 U.S.C. § 905(b).
Our review of the origin and demise of longshore and
harbor workers’ unseaworthiness actions has led us to
conclude that § 905(b) implicitly requires that a tort be
consummated within the admiralty jurisdiction to be
cognizable under the statute. The maritime tort action
for negligence was a feature of the common law of ad-
miralty prior to Sieracki-Ryan, when one group of torts
involving longshore workers, those committed on board
a vessel lying in navigable waters, were excepted from
the negligence standard and given strict liability treat-
ment. Section 905(b) was enacted to bar this special
treatment, and essentially returned the applicable law
to its pre-Sieracki state, when negligence had to be
proven to obtain damages from a vessel.
Three circuits in addition to ourselves have determined
that Congress enacted § 905(b) not to create a new cause
of action for any compensation system-covered worker but
to abolish the judicially-authorized unseaworthiness action
Tla
fashioned for longshore workers “injured on navigable
waters while working on a ship... .” Pope & Talbot, Inc.
v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 205, 98 L.Ed.
143 (1953); see H.R. Rep. No. 92-1441, 92d Cong., 2d
Sess. (1972), reprinted in 1972 U.S. Code Cong. & Ad.
News 4698, 4702 (hereinafter H.R. Rep.). The former
Fifth Circuit rendered the first decision on the question
of the scope of actions that can properly be brought un-
der § 905(b). It held that the legislative history of the
1972 Amendments to the Longshore Act “leaves little
doubt that Congress did not intend § 905(b) to create a
new or broader cause of action in admiralty.” Parker v.
South Louisiana Contractors, 537 F.2d 113, 118 (5th Cir.
1976). The Fourth Circuit followed suit shortly there-
after in Holland v. Sea-Land Service, 655 F.2d 556 (4th
Cir. 1981), and held that only maritime torts are cogniza-
ble under the provision, “torts cognizable under tradi-
tional federal] admiralty jurisdiction. . . .” Jd. at 558.
The Holland court specifically determined that § 905(b)
“preserves [the employee’s|] right under prior law to re-
cover for third-party negligence, but it does not expressly
enlarge the traditional jurisdiction of admiralty over
maritime torts.” Jd. at 559. In Christoff v. Bergeron In-
dustries, Inc., 748 F.2d 297 (5th Cir. 1984), the new
Fifth Circuit reaffirmed the earlier ruling in Parker and
stated that Ҥ 905(b) neither extended the boundaries of
traditional admiralty jurisdiction nor converted ordinary
tort claims against vessels into federal questions inde-
pendent of admiralty.” Jd. at 298. The Eleventh Circuit
found these earlier rulings persuasive authority for its
holding that § 905(b), “rather than creating a new cause
of action, merely preserves certain preexisting remedies
to injured workers against third parties.” Harville v.
Johns-Manville Products Corp., 731 F.2d 775, 778 n.9
(11th Cir, 1984).
Having concluded that only torts that are maritime are
cognizable under § 905(b), the governing principles for
72a
determining whether admiralty law will apply * are pro-
vided by Executive Jet Aviation, Inc., v. Cleveland, 409
U.S. 249, 93 S.Ct. 493, as extended by Foremost Insur-
ance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654.
Because defendants’ third-party § 905(b) action is predi-
cated solely upon BIW’s alleged dereliction of duty qua
shipowner pro hac vice vis-a-vis its employee Drake, and
not based upon any alleged duty running from BIW to
defendants, the proper question is whether plaintiff Drake
could have maintained a § 905(b) action against BIW
for his injuries. Accordingly, we look to whether the in-
jury forming the basis of Drake’s primary action would
be cognizable in admiralty, or have admiralty law ap-
plied to it.
We consider our decision in Austin v. Unarco to have
provided the channel markers for deciding that question.
As we held there, to qualify as a maritime tort under
Executive Jet, the wrong (1) must have occurred on
navigable waters, i.e., meet a situs or locality test, and
(2) must have borne a significant relationship to a mari-
time activity, 7.e., meet a nexus test. Austin v. Unarco,
705 F.2d at 8-14. Thus, although we believe that it is
necessary for the maintenance of a § 905(b) action that
a party allege that a vessel’s negligence was the source of
the injury, such an incantation does not, as defendants
contend, automatically result in the application of ad-
miralty law.
Turning to the Executive Jet criteria, we first consider
the situs requirement, i.e., that the injury occur or take
effect on navigable waters. As the Eleventh Circuit noted
in Harville, “when an injury is the result of a number of
3 For a discussion of the difference between the application of
admiralty law and assertion of admiralty jurisdiction, see our dis-
cussion in Austin v. Unarco Industries, Inc., 705 F.2d at 6 n. 1; see
also Kermarec v. Compagnie Generale, 358 U.S. 625, 628, 79 S.Ct.
406, 408, 3 L.Ed.2d 550 (1959); Harville v. Johns-Manville Products
Corp., 731 F.2d at 778-779.
73a
exposures, only some of which occurred in a maritime
situs, and where the effects of the various exposures are
indivisible,” the question whether the situs test is met is
raised. Harville, 731 F.2d at 782. That court concluded,
in agreement with the Second,* Fourth® and Ninth Cir-
cuits,® that the requirement was met “if the plaintiff has
been exposed to asbestos on navigable waters regardless
of whether he has also suffered exposures on land.” Id.
We see no reason to depart from the majority view on
this question and we adopt it as our own. Thus, as in
Austin v. Unarco, from our review of the record the situs
requirement poses no problem to the characterization of
Drake’s injury as a maritime tort and “[t]he only issue,
therefore, is whether the wrong bears a significant rela-
tionship to traditional maritime activity.” Austin v.
Unarco, 705 F.2d at 8-9; see Executive Jet, 409 U.S. at
261, 93 S.Ct. at 501.
Since our decision in Unarco, several other courts have
considered Executive Jet’s second requirement of a nexus
to maritime activity in relation to asbestos injuries sus-
tained by shipyard workers. All have reasoned to the
same conclusion albeit using somewhat different markers
en route. Compare, e.g., Harville v. Johns-Manville Prod-
ucts Corp., 731 F.2d 775; Lowe v. Ingalls Shipbuilding,
723 F.2d 1178, 1187-90 (5th Cir. 1984); Austin v.
Unarco, 705 F.2d 1; Keene Corp. v. United States, 700
F.2d 836, 843-45 (2d Cir. 1983), cert. denied, U.S.
—, 104 S.Ct. 195, 78 L.Ed.2d 171 (1984) ; Owens-Illi-
* Keene Corp. v. United States, 700 F.2d 836 (2d Cir.), cert.
denied, U.S. , 104 S.Ct. 195, 78 L.Ed.2d 171 (1983).
5 White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir. 1981),
cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982),
vacated on other grounds sub nom. Oman v. Johns-Manville Corp.,
764 F.2d 224 (4th Cir. 1985) (en banc).
® Owens-Illinois v. United States District Court, 698 F.2d 967
(9th Cir. 1983).
74a
nois, Inc. v. United States District Court, 698 F.2d 967
(9th Cir. 1983).
In Unarco, we focused on the nature of the decedent’s
job rather than the type of project—vessel construction
or repair—on which he worked. We concluded that the
plaintiff was entitled to invoke admiralty only if the
decedent was “injured while doing- work traditionally
done by members of the crew and thus, presumably, sub-
ject to many of the same hazards as seamen.” 705 F.2d
at 12. We ruled that because the decedent had been en-
gaged in work “requiring special equipment and skills”
not commonly found among the members of the ship’s
crew, admiralty law was not applicable to plaintiff’s
claims. Jd. at 12-13. Other courts prior to the Eleventh
Circuit’s ruling in Harville focused on other criteria. The
Harville Court, however, summarized and blended these
various considerations, including our own, into a four-
part test which harmonized with Kelly v. Smith, 485 F.2d
520 (5th Cir. 1973), cert. denied, 416 U.S. 969, 94 S.Ct.
1991, 40 L.Ed.2d 558 (1974), and Foremost Insurance
Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.
2d 300. The criteria to be considered under this ap-
proach are the function and roles of the parties, the type
of vehicles and instrumentalities involved, the causation
and type of injury, and traditional concepts of the role
of admiralty law. This four-part approach to determining
whether the tort possesses a sufficient nexus to tradi-
tional admiralty concerns has since been adopted by the
Ninth Circuit, see Myhran v. Johns-Manville Corp., 741
F.2d 1119 (9th Cir. 1984), the Fifth Circuit, see Woess-
ner v. Johns-Manville Sales Corp., 757 F.2d 634 (5th Cir.
1985), and by the Fourth Circuit en banc in a case over-
turning its lone decision holding that admiralty law ap-
plied to asbestos torts suffered by shipyard workers, see
Oman v. Johns-Manville Corp., 764 F.2d 224 (4th Cir.
1985) (en bane overruling of White v. Johns-Manville
Corp., 662 F.2d 234 (4th Cir. 1981)). The Harville ap-
75a
proach to determining the nexus prong of the Executive
Jet test also seems to us to be the best formulation yet
set forth because it integrates a wide variety of tradi-
tional concerns of admiralty law. Accordingly, we adopt
this approach.’
With our course thus fixed, we recognize that what ap-
peared to be a pioneer voyage is actually just another
routine trip. Among all six circuits that have considered
the question, the universal conclusion is that admiralty
law does not apply to these torts. We need not retrace the
steps taken by the Eleventh Circuit in Harville nor ours
in Unarco to show why the nexus prong of Executive Jet
has not been satisfied here; suffice it to say that the facts
here are essentially the same as in the other cases cited
which found that lack of sufficient relation to traditional
admiralty concerns negated the application of admiralty
law.’ We find it rather ironic, however, that in those
7 Judge Campbell feels that it is not necessary to fully adopt the
Harville approach and would prefer to rest on Unarco.
8 The one quarrel we have with some of our sister circuits is the
emphasis they placed on long-term, latent occupational disease as
not bearing sufficient maritime connection. See, e.g., Woessner v.
Johns-Manville Sales Corp., 757 F.2d 634, 647 (5th Cir. 1985) (‘‘the
type of injury involved here bears little if any relationship to
maritime navigation or commerce’). We disagree most strongly
with this view and point to, e.g., one of that circuit’s own cases,
Castorina v. Lykes Brothers Steamship Corp., 758 F.2d 1025 (5th
Cir. 1985) (Wisdom, J.), where the plaintiff had for many years
offloaded sacks of raw asbestos shipped in loose weave burlap bags
aboard defendant’s ships. Plaintiff’s asbestosis was clearly caused
by “traditional maritime activity.”” We think that the proper ana-
lytical step is to ask whether the causation of the injury had a
sufficient connection to traditional maritime activity, not whether
the type of injury, e.g., trauma, latent occupational disease, pos-
sessed the necessary nexus. We think that the concern Congress
expressed in the 1984 Amendments to the Longshore Act over the
difficulties that maritime workers were experiencing in gaining
compensation for latent occupational disease bolsters the case for
not using the type of injury as part of the hurdle for maritime tort
76a
other course-making cases it was the asbestos companies
who were urging that admiralty law did not apply to the
injuries in the primary actions, and now we find basically
the same defendants attempting to refute their own prior
position. The tort cannot be outside admiralty jurisdic-
tion when sued upon in the primary action and then, by
some magic, be transmuted into a maritime tort merely
because it is later emphasized that some of the work
where the injury occurred was performed upon a ship.
That the employees worked primarily upon ships had al-
ready been taken into account in the earlier analysis. Our
conclusion, then, is that the injury sustained by Drake
lacked sufficient connection to the traditional concerns of
admiralty, and thus, neither plaintiff nor defendants can
bring a § 905(b) negligence action against BIW qua
shipowner pro hac vice.
We recognize that there are cases which have either
ignored or overlooked the Executive Jet nexus test in de-
termining whether a tort was cognizable under § 905(b).
These are Lundy v. Litton Systems, Inc., 624 F.2d 590
(5th Cir. 1980} cert. denied, 450 U.S. 913, 101 S.Ct.
1353, 67 L.Ed.2d 337 (1981),° McCarthy v. The Bark
actions. See H.R. Rep. No. 98-570, on P.L. 98-426, 98th Cong., 2d
Sess., reprinted in U.S. Code, Cong. & Ad. News 1984, 2734, 2743
(The Committee “has amended the current law in several significant
respects to insure that long-latency occupational disease claimants
do not continue to encounter the severe procedural hurdles which
the Longshore Act has presented in the past’).
*In Lundy the plaintiff was injured on a vessel which was 97%
complete but which had not completed sea trials. The district court
had held that an incomplete vessel was not a “‘vessel’’ within the
meaning of § 905(b) and barred the action. The Fifth Circuit dis-
agreed in a short per curiam opinion, holding that the definition
of “vessel” provided in the definitional section of the LHWCA, 33
U.S.C. § 902 (21), encompassed torts suffered on an incomplete vessel
such as occurred there. The court determined that deciding
whether a §905(b) action was properly-brought was merely a
matter of turning to the definitions for “vessel” and “covered em-
77a
Peking, 716 F.2d 130 (2d Cir. 1983), and Hall v. Hvide
Hull No. 3, 746 F.2d 294 (5th Cir. 1984). Of these, only
the Hall opinion requires discussion, for it utilizes and
extends the analysis used in the prior two cases.
In Hall, the defendant ships were actually hulls float-
ing on navigable water during shipbuilding construction.
The question before the court was the same as that in
Lundy, viz., whether ships under construction qualified as
vessels under § 905(b). The court felt that it was bound
by Lundy’s holding that torts committed on vessels under
construction were cognizable under § 905(b), despite other
Fifth Circuit authority holding that maritime tort juris-
diction required satisfaction of the Executive Jet criteria,
including a relationship to traditional maritime activity:
The panel agrees that we are bound by Lundy and
that, under the law of the circuit, it must be followed
in the absence of en banc overruling. However, the
ployee,” and if these elements were satisfied, the action could
proceed. Whether § 905(b) encompassed only maritime torts was
not raised before the panel, nor did the court consider the question
sua sponte.
19TIn McCarthy, a painter was injured while painting the main-
mast and spars of the Bark Peking, a vessel permanently anchored
and used as a museum. The Second Circuit had originally held that
the plaintiff was not a covered employee for purposes of LHWCA
compensation, and thus the § 905(b) action could not be brought.
The Supreme Court vacated the initial decision for reconsideration
in light of Director, OWCP v. Perini North River Associates, 459
U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983), which is an opinion
discussing the “status” requirement for LHWCA compensation. On
the second trip, the Second Circuit ruled that Perini required that
plaintiff be held a covered worker for compensation purposes. The
McCarthy court apparently was not asked, and did not consider
whether §905(b) jurisdiction required that the Executive Jet
nexus test be satisfied. It is likely that McCarthy has been implicitly
overruled by Congress in the 1984 Amendments to the Longshore
Act. See Pub. L. No. 98-426, 98th Cong., 2d Sess.; H.R. Rep. No.
98-570, which proscribes compensation coverage for museum
employees.
78a
panel also notes that an issue of bancworthy dimen-
sion may be presented by the conflict between Lundy’s
rationale and some expressions in our more recent
jurisprudence that an injury to ship construction
workers on board a vessel under construction, al-
though on navigable waters, is not a maritime tort,
since ship construction is not a maritime business.
See, e.g., Lowe v. Ingalls Shipbuilding, A Division of
Litton, 723 F.2d 1178, 1185, 1187 (5th Cir. 1984).
Id. at 296 (footnote omitted). The panel’s signal for re-
hearing en banc went unheeded. 746 F.2d at 294 (5th
Cir. 1985).
The Hall court attempted to square Lundy with Lowe
and Parker v. South Louisiana Contractors, 537 F.2d 113,
the Fifth Circuit’s other cases, by asking the question
whether § 905(b) jurisdiction extended beyond maritime
tort jurisdiction as demarcated by Executive Jet. The
court noted that torts occurring on vessels under con-
struction qualified as maritime torts under pre-Executive
Jet standards, citing to Williams v. Avondale Shipyards,
Inc., 452 F.2d 955, where a ship construction worker
working on a launched but uncompleted vessel floating in
navigable waters was held entitled under general mari-
time negligence principles to sue the vessel or its owner
for injuries sustained while on the uncompleted vessel in
navigable waters. Id. at 958-59. It then declared that the
principles of Director, OWCP v. Perini North River As-
sociates, 459 U.S. 297, 320 n.29, 103 S.Ct. 634, 649 n.29,
74 L.Ed.2d 465 (1983), which held that Congress lacked
an intention to constrict the boundaries for LHWCA com-
pensation from those operative pre-1972 were applicable
as well to maritime tort jurisdiction under § 905(b). In
particular, the Hall court held that the statutory language
of §905(b), which was enacted subsequent to the Wii-
liams opinion, was intended to preserve the extent of
maritime jurisdiction over a vessel under construction for
§905(b) purposes that had been previously recognized
79a
by Williams."' Thus, despite Executive Jet’s addition of
the nexus requirement and the holding of Lowe within its
own circuit that ship construction is not a maritime busi-
ness, the Hali court held that the former range of mari-
time torts caused by vessel negligence were intended to
be grandfathered-in to the § 905(b) jurisdictional range
and qualify as maritime torts. 746 F.2d at 300.
Insofar as the Hall panel held that only maritime torts
are cognizable under § 905(b) we are in agreement. Our
disagreement lies in that court’s creation of a double
standard for maritime tort jurisdiction. For actions
brought under § 905(b) the Fifth Circuit would appar-
ently revert to pre-1972, and pre-Executive Jet standards
and apply only a situs test; for actions under general
maritime jurisdiction, it would require satisfaction of
both the situs and nexus tests.
We discern no basis for this construction of the juris-
dictional range of § 905(b). Perini was concerned solely
with compensation, not with maritime tort jurisdiction,
and these two boundaries have for a long time been quite
distinct, see infra at 1018-1019. We have uncovered no
legislative history even intimating that Congress wished
to incorporate inte $ 905(b) the then-current boundaries
of maritime tort jurisdiction, and place them beyond the
traditional common law powers of the admiralty courts.
Under the Fifth Circuit’s construction, § 905(b) tort ju-
risdiction is static and distinct from other maritime tort
jurisdiction, and a double standard has been created.
This is the inevitable result of the Hall rule even though
that court itself states that “we find no... distinction
intended by Congress between a § 905(b) action and ad-
miralty jurisdiction,” 746 F.2d at 300. We have discov-
ered no predicate for the Fifth Circuit’s unusual rule in
law, logic, legislative history, or policy and we decline to
11 The Hall court did not cite any legislative history to bolster its
position.
80a
hold that jurisdiction under § 905(b) requires satisfaction
merely of the definitional elements of the provision, and
the situs requirement.'*
The other theory that has been advanced, and uniformly
rejected, maintains that when Congress enlarged shore-
ward the geographic areas where compensation would be
payable under the Act as a part of the 1972 Amendments,
it implicitly adopted the same geographic range for § 905
(b)’s scope. See, e.g., Parker v. South Louisiana Con-
tractors, 537 F.2d 113 (discussing theory that § 905(b)
jurisdiction and compensation system-covered areas paral-
lel one another). It is not clear whether appellants here
subscribe to this or another theory of § 905(b)’s scope;
they all but omitted argument on this poinc and made
only the generalized claim that no independent admiralty
jurisdiction had to be shown. In any event, an extended
response is not necessary.
While the geographic extension shoreward of the range
of areas where compensation would be payable under the
Act was discussed in great detail in legislative hearings
and committee reports, see, e.g., Perini, 459 U.S. at 314
n.24, 317-22, 103 S.Ct. at 646 n.24, 647-50; see also Herb’s
Welding Inc. v. Gray, —— USS. : , 105 S.Ct.
1421, 1425, 84 L.Ed.2d 406 (1985), there is no discus-
sion of extending the jurisdictional range of torts cog-
nizable under § 905(b) via negligence actions beyond that
allowed for other maritime torts. The one example the
House Committee provided to illustrate its conception of
the scope of § 905(b) negligence actions was that of a
stevedore who slipped on an oil spill on a vessel’s deck
12 It is inherently difficult to identify a congressional intention to
tie §905(b) jurisdiction to pre-Executive Jet boundaries since
§ 905(b) was enacted prior to the rendering of the Executive Jet
(and Foremost Insurance) decision(s). Thus, there was no predi-
cate for the intention the Fifth Circuit ascribes to Congress except
as a hypothetical, and none was recorded in the legislative history
of the statute.
8la
while loading or wnloading cargo—a classic maritime
tort. See H.R. Rep. at 2740. Moreover, the express pur-
pose of enacting § 905(b) was to undo the judicial deci-
sions in Sieracki and Ryan and their unseaworthiness
progeny, id, at 4708, which comprise a species of mari-
time tort.
Interpreting the scope of § 905(b) jurisdiction to in-
clude negligence actions other than maritime torts would
federalize torts in an area which currently are governed
by state law. We find it difficult to believe that a move
this momentous, had Congress intended it, would not
have received explicit discussion. Moreover, the Supreme
Court’s comments in Victory Carriers directly counsel
against an extension of admiralty jurisdiction on such
slender evidence as advanced here:
We are dealing here with the intersection of state
and federal law. As the law now stands, state law
has traditionally governed accidents like this one.
To afford respondents a maritime cause of action
would thus intrude on an area that has heretofore
been reserved for state law, [and] would raise diffi-
cult questions concerning the extent to which state
law would be displaced or preempted. ... In these
circumstances, we should proceed with caution in con-
stitutional and statutory provisions dealing with the
jurisdiction of the federal courts.
Victory Carriers, 404 U.S. at 211, 92 S.Ct. at 424; see
also Austin v. Unarco, 705 F.2d at 13. We agree with
the Fifth Circuit’s views as expressed in Parker v. South
Louisiana Contractors, 537 F.2d 113, that there is no evi-
dence that Congress intended to extend § 905(b) tort ju-
risdiction to encompass the shoreside injuries occurring
on a vessel merely because those injuries would be com-
pensable under the LHWCA.
82a
III. LIABILITY OF BIW IN ITS CAPACITY
AS EMPLOYER
We now turn to the land-based third-party negligence
claims alleged in Counts I through V, which challenge
acts or omissions of BIW in its capacity as an employer.
There can be no question that if the MWCA is the gov-
erning law, it bars these actions. Section 4 of the Maine
Act states that employers who provide workers’ compen-
sation “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.” Me. Rev. Stat. Ann. tit. 39, § 4
(1978)."* This provision has been unequivocally inter-
preted by the Maine Supreme Judicial Court to provide a
covered employer with immunity from third-party claims
arising from work-related injuries to its employees that
“extends to all non-contractual rights of contribution and
indemnity.” McKellar v. Clark Equipment Co., 472 A.2d
at 416; Roberts v. American Chain & Cable Co., 259 A.2d
at 51,
Defendants do not dispute the effect of the Maine stat-
ute, but argue that it does not apply. Their argument, as
we understand it, runs as follows: Plaintiffs’ claim for
workers’ compensation was made under the Longshore
Act, 33 U.S.C. $§ 901-950, not the Maine Act; therefore,
it is the LHWCA that is implicated. This means that it
is the exclusivity provision of the LHWCA, § 905(a),"
13 The statutes identified in § 4 relate to employers’ liability in the
absence of workers’ compensation, actions under the Maine Tort
Claims Act, and actions for wrongful death.
4 The pertinent part of 33 U.S.C. §905(a) provides:
The liability of an employer prescribed in section 904 of this
title shall be exclusive and in place of all other liability of such
employer to the employee, his legal representative, husband or
wife, parents, dependents, next of kin, and anyone otherwise
entitled to recover damages from such employer at law or in
admiralty on account of such injury or death,....
83a
that controls and under Lockheed Aircraft Corporation v.
United States, 460 U.S. 190, 103 S.Ct. 1033, 74 L.Ed.2d
911 (1983), § 905(a) does not bar third-party actions.
Since the linchpin of defendants’ argument is Lockheed,
we turn first to that decision. Lockheed involved the crash
of a plane manufactured by Lockheed Aircraft Corpora-
tion and owned and operated by the United States Air
Force. The administrator of the estate of a civilian em-
ployee of the United States Navy killed in the crash
brought suit against Lockheed as the manufacturer of a
defective product. Lockheed brought a third-party in-
demnity action against the United States under the Fed-
eral Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b),
2671-80. The question was whether the exclusivity provi-
sion of the Federal Employees’ Compensation Act
(FECA), 5 U.S.C. § 8116(c), barred Lockheed’s indem-
nification action. In holding that it was not a bar, the
Court relied heavily on Weyerhaeuser S.S. Co. v. United
States, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1, which
had “considered FECA’s exclusive-liability provision and
carefully reviewed its legislative history.” Lockheed, 460
U.S. at 194, 103 S.Ct. at 1036. The Court stated:
The Court’s reasoning in Weyerhaeuser applies
with equal force in the present case. The Govern-
ment advances the same arguments before us now
that it unsuccessfully advanced in Weyerhaeuser. To
paraphrase the Weyerhaeuser Court’s conclusion,
“{t]here is no evidence whatever that Congress was
concerned with the rights of unrelated third parties,
much less of any purpose to disturb settled doctrines
of [tort] law affecting the mutual rights and liabili-
ties of private [parties] in [indemnity] cases.” Id.,
at 601 [83 S.Ct. at 929]. Section 8116(c) was in-
tended to govern only the r
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