In the Wake of Devries: Revisiting the Extension of Maritime Jurisdiction Over Asbestos Claims.

• Author: Schneider, Brian J.

IN Air & Liquid Systems Corp. v. Devries, (1) the Supreme Court of the United States recently addressed the application under maritime law of the so-called "bare metal" or "replacement parts" defense to claims of mesothelioma against product manufacturers who did not manufacture or supply the asbestos-containing products to which the claimants alleged exposure, but whose products incorporated such components years after sale. (2) For the last several years, it has been these equipment manufacturers who have largely sought application of maritime law to advance this defense.

Under the bare metal (also called the "replacement parts") defense, manufacturers of equipment such as valves and pumps argued that they could not be held liable for replacement components--in that case, gaskets and packing--later incorporated into their equipment that the company did not sell or place in the stream of commerce. Thus, under the defendants' argument there, an asbestos claimant alleging exposure to such components would be required to prove (decades after sale) that the components at issue were original to the equipment. In addition to the bare metals defense, there are a number of other arguments in certain maritime cases available to defendants to limit recovery for certain categories of tort damages. (3)

At the same time, it has not always been defendants who seek the application of maritime law. There are in fact cases in which asbestos claimants have brought their suits by reference to maritime law. (4)

But before maritime law can be applied, the party seeking its application first bears the burden of proving the existence of maritime jurisdiction over the claim. (5) With the Court's (albeit murky) decision in Devries, this article revisits the legal underpinnings to the exercise of maritime jurisdiction in asbestos cases and the emerging trend among a handful of courts holding that maritime jurisdiction properly extends over asbestos product liability litigation. A strong argument can be made that the eight federal appellate court decisions to consider the issue, all of which held 30 years ago that maritime jurisdiction does not extend to asbestos-containing products whose uses are not uniquely and traditionally maritime in nature, remain good law.

1. Executive Jet Aviation v. City of Cleveland

   For more than 150 years, the test for the exercise of jurisdiction over maritime torts depended solely upon the location of the wrong; if the wrong occurred on navigable waters, the action was held to be within maritime jurisdiction. If the wrong occurred on land, it was held not to fall within maritime jurisdiction. (6) In the summer of 1968, an airplane took off from an airport in Cleveland, struck a flock of seagulls, and crashed into Lake Erie. Suit was filed against the individual airfield employee who cleared the plane for takeoff and against the airport's operators, for failing to keep the runway clear of the birds. The damage complained of was limited to the property loss of the aircraft.

   After granting certiorari on the issue of whether the aviation accident properly sounded in maritime jurisdiction, the Supreme Court answered the question in the negative in Executive Jet Aviation v. City of Cleveland. (7) In doing so, the Court's unanimous decision by Justice Stewart recounted how the traditional test focusing on location "was established and grew up in an era when it was difficult to conceive of a tortious occurrence on navigable waters other than in connection with waterborne vessels." (8) But the Court in Executive Jet observed for the first time that simply satisfying the locality test was insufficient to establish maritime jurisdiction. Instead, the Court announced an additional prong of the jurisdictional test to accompany the location test, one that was "consistent with the history and purpose of admiralty."

   This second prong--sometimes referred to as the nexus test--requires the wrong to "bear a significant relationship to traditional maritime activity." Such traditional activities, the Court explained, involved "navigation or commerce on navigable waters." In assessing whether a "significant relationship" existed between these activities and the wrong, the Executive Jet decision emphasized that the law of admiralty:

   has evolved over many centuries, designed and molded to handle problems of vessels relegated to ply the waterways of the world, beyond whose shores they cannot go. That law deals with navigational rules--rules that govern the manner and direction those vessels may rightly move upon the waters. When a collision occurs or a ship founders at sea, the law of admiralty looks to those rules to determine fault, liability, and all other questions that may arise from such a catastrophe. Through long experience, the law of the sea knows how to determine whether a particular ship is seaworthy, and it knows the nature of maintenance and cure. It is concerned with maritime liens, the general average, captures and prizes, limitation of liability, cargo damage, and claims for salvage. (9)

   Against this backdrop, and sensitive to the "conceptual expertise of the law to be applied" in maritime cases, the Court reasoned that a plane coming down was attributable to a cause unrelated to the sea, whether because of defective design or manufacture of the airframe or engine. These were "factual and conceptual inquiries unfamiliar to the law of admiralty." Moreover, the Court made clear that the inquiry should include examination of whether the case related to any tort growing out of "navigation." If the action alleged only an ordinary tort, no different in substance because the injury occurred in shallow waters along the shore than if the injury had occurred on the sandy beach above the water line--where the accident was "only fortuitously and incidentally connected to navigable waters" and "bears no relationship to traditional maritime activity"--the question of liability was one which could "easily be determined by the locality" and not a maritime court.

   Undergirding the Court's reasoning in support of requiring a maritime nexus between the tort and maritime jurisdiction were overarching federalism concerns. Just one term earlier, in Victory Carriers, Inc. v. Law, (10) the Court had discussed the need to "proceed with caution" in determining whether to expand maritime jurisdiction. In so holding, the Court--in a passage quoted by the Court in Executive Jet--articulated the federalism issues at stake, stating that the power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts "may be restricted only by the action of Congress in conformity to the judiciary sections of the Constitution. ... Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which a federal statute has defined." (11)

2. Foremost Insurance Co. v. Richardson

   A decade later, the Court returned to the issue of maritime jurisdiction and the requirement of a maritime nexus in Foremost Insurance Co. v. Richardson. (12) In that case, two pleasure crafts collided on a river in Louisiana, resulting in a man's death. His widow, who was also a passenger of one of the vessels, sued the other for negligent operation and included as a party the defendant's insurance company. The Court affirmed extension of maritime jurisdiction. The decision was close, 5-4, despite the fact that the case involved a collision between vessels on navigable waters.

   Justice Marshall's majority opinion focused on what it said admiralty law had "traditionally been concerned with," which it said were "navigational rules--rules that govern the manner and direction those vessels may rightly move upon the waters." (13) With that in mind, the majority held that "the smooth flow of maritime commerce is promoted when all vessel operators are subject to the same duties and liabilities."

   The source of the division centered on the fact that the vessels in question were not engaged in "commercial" activity. Justice Powell's four-member dissent began by noting that, as evidenced by Executive Jet, admiralty jurisdiction does not extend to every accident on navigable waters and that if maritime courts were to exist at all, they "should...