Co-authored by Brian Gross
Choice of law analyses can, at times, be complicated affairs. That is particularly true in asbestos cases in which a plaintiff alleges exposure to numerous asbestos-containing products in multiple states over a prolonged period of years. An additional layer of complexity is added when some or all of the plaintiff’s allegations relate to asbestos exposure on United States Navy ships. The question of whether maritime law should apply in such instances has perplexed both state and federal courts for years – sometimes resulting in inconsistent decisions.
Recognizing the history of conflicting case law, Judge Eduardo Robreno – who currently presides over the federal asbestos MDL docket – recently brought some clarity to the maritime law question in a lengthy, 30-page opinion. See Conner v. Alfa Laval, Inc., 2011 WL 3101810 (E.D. Pa.). In Conner, Judge Robreno concluded that maritime law will apply to the claims of sea-based Navy servicemen where the allegedly defective product was produced for use on a vessel, but that maritime law will not apply to the claims of predominantly land-based Navy work, even if the allegedly defective product was produced for use on a vessel. A detailed summary of the decision follows.
The Development of the Standard for Determining Maritime Jurisdiction
The question of whether maritime substantive law will apply in a matter is actually a jurisdictional one. If a court has maritime jurisdiction over a matter, maritime law will apply. Thus, Judge Robreno began his decision with a detailed history of the development of the standard for determining whether a court has maritime jurisdiction over a matter.
Initially, maritime jurisdiction was determined by application of the straight-forward “locality test” as enunciated in The Plymouth, 70 U.S. 20 (1865). If a tort occurred on navigable waters, maritime jurisdiction applied. In its 1972 Executive Jet Aviation, Inc. v. City of Cleveland decision, however, the United States Supreme Court recognized that strict application of the locality test could result in courts having maritime jurisdiction over matters where it made no sense. 409 U.S. 249 (1972). To address this problem, the Supreme Court added the additional requirement that the tort must have some relationship to traditional maritime activity.
The Supreme Court expounded on the Executive Jet “relationship to traditional maritime activity” test in its 1990 Sisson v. Ruby decision, which laid the foundation for the modern standard. 497 U.S. 358 (1990). In Sisson, the Court announced that determining whether a tort relates to a traditional maritime activity requires an analysis of: (1) the incident’s potential effect on maritime commerce; and (2) the relationship between the activity giving rise to the incident and traditional maritime activity.
The Current Standard
The Supreme Court’s most recent decision on this issue came in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995). There, the Court set forth the current standard for determining whether a court has maritime jurisdiction over a matter. The two-prong standard is as follows:
1. The tort must have occurred on navigable waters or caused by a vessel on navigable waters (the “locality test”); and
2. The tort must have a connection with maritime activity (the “connection test”), as determined by:
a. whether the incident has a potentially disruptive impact on maritime commerce; and
b. whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.
Additionally, the Court expressly rejected a pre-Sisson formulation of the connection test that was set forth in the Fifth Circuit Court of Appeal’s Kelly v. Smith decision. 485 F.2d 520 (5th Cir. 1973). That was important because there are a number of decisions which relied on the Kelly formulation, or a similar version, to hold that ship-based asbestos exposure is not subject to maritime jurisdiction, even if the alleged exposure occurred while the ship was at sea. Judge Robreno noted the Grubart Court’s rejection of Kelly in distinguishing those cases.
Application of the Standard
Having set forth the standard to be applied in the case, Judge Robreno then analyzed whether the Court had maritime jurisdiction over the four cases pending before him.
1. The Locality Test
Judge Robreno concluded that the locality test is satisfied as long as some part of a plaintiff’s alleged exposure occurred on a vessel on navigable waters. Thus, as to the three cases before him which involved workers who allegedly performed their work at sea, the Judge concluded the locality test was satisfied. As to the case before him, however, which involved a plaintiff who was principally a land-based shipyard worker, Judge Robreno held that there was insufficient evidence in the record for the Court to conclude that any of the plaintiff’s work occurred aboard a ship in navigable waters.
2. The Connection Test
a. Whether the incident has a potentially disruptive impact on maritime commerce.
Judge Robreno noted that defective products aboard a ship have the potential to slow or frustrate maintenance work performed on a vessel by causing injury to workers assigned to do that work. Therefore, defective products aboard a ship have the potential to disrupt maritime commerce. As such, Judge Robreno held that the first part of the connection test was satisfied as to the Navy servicemen who performed their work at sea.
On the other hand, Judge Robreno held that the work of the land-based shipyard worker, even if it involves work with defective products onboard ships, does not pose a sufficient threat to maritime commerce to satisfy the connection test. Therefore, maritime jurisdiction will not attach to claims made by land-based shipyard workers.
b. Whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.
Finally, Judge Robreno held that the activity giving rise to the incidents in the cases before him was the defendants’ manufacture of allegedly defective products. Because the products at issue in the cases – turbines, pumps, purifiers, generators, boilers, valves, steam traps, gaskets, and packing – are essential to the proper functioning of ships and were made for that purpose, Judge Robreno concluded that the second part of the connection test was satisfied.
In sum, Judge Robreno held that the Court has maritime jurisdiction over the claims of Navy personnel who worked with allegedly defective products while at sea, but not over claims of land-based shipyard workers, even if they worked with allegedly defective products onboard ships.
Judge Robreno’s decision is incredibly helpful, as it provides much needed clarity to the question of when maritime jurisdiction will govern a party’s claims. While it seems certain that litigants will test the boundaries of this decision in the years to come (for example – what if a manufacturer can prove that its products were not made for use on a ship?), for now it serves as a very useful guide to attorneys attempting to determine the law that will govern ship-based asbestos exposure cases.