# Appendix — Eagle-Picher Industries, Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0062%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1126 ## Text a Rs . q D) & R ) Supreme Court, us. | FILED a ee JR. CLERK 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 la 18a 27a 59a 90a -92a 93a 94a 108a 110a 112a la 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0062%3A3. Public record. Not legal advice.