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May 31, 2018 Practice Points

The Supreme Court Enters the Fray on “Bare Metal” Liability in Maritime Actions

By W. Clay Massey

On May 14, 2018, the U.S. Supreme Court granted certiorari in the case of Air and Liquid Systems Corp. v. Devries, No. 17-1104. This is a maritime case in which the plaintiffs (respondents in the Supreme Court proceeding) contracted cancer from alleged asbestos exposure on Navy ships from materials the Navy added to petitioners’ “bare metal” products aboard the ships. The Court’s review is of the Third Circuit’s holding that companies can be liable—“at least in the context of a negligence claim”—for plaintiffs’ asbestos exposures from materials the Navy added, if “the facts show the plaintiff’s injuries were a reasonably foreseeable result of the [Petitioners’] failure to provide a reasonable and adequate warning.” In re: Asbestos Prods. Liab. Litig. (No. VI), 873 F.3d 232, 234, 240 (3rd Cir. 2017). The Third Circuit reached its holding based on its view that “the special solicitude for the safety and protection of sailors”—which counsels that “it is better ‘to give than to withhold the remedy’”—is controlling. Id. at 238. The Third Circuit further reasoned that it should adopt a standard that “permit[s] a greater number of deserving sailors to receive compensation, and compensation closer to what they deserve,” even if the common law governing tort liability would not allow such recovery. Id.

The petitioners’ petition for writ of certiorari (the “petition”) presented the following question to the Supreme Court: “Can products-liability defendants be held liable under maritime law for injuries caused by products they did not make, sell or distribute?” The petitioners argued that the answer to this question must be no, because tort law applies in maritime actions and requires that “tort-law defendants are liable for only the injuries they cause—they bear no responsibility for injuries that others cause.” Pet. at 1. The petition argued that the Court should grant certiorari because the Third Circuit erred and created a split with the Sixth Circuit, which held that maritime-law defendants are not liable for injuries caused by asbestos exposures from third-party materials added to their products. Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005). The petitioners argued that this split “is a particularly strong reason to grant a petition arising under the Court’s admiralty jurisdiction, which exists to ensure uniformity in maritime law.” Pet. at 14.

The respondents disagreed. The respondents argued that there is no “split” between the Third and Sixth Circuits, based on a claim that “when carefully read” the Sixth Circuit decision in Lindstrom involved a §402A strict products liability claim, whereas the Third Circuit’s decision was “only a negligence case.” Br. in Opp. at 7. In essence, the respondents argued that a claim involving injury from a product is not a “products liability case” if the theory of liability is negligence, rather than strict liability. Respondents also argued that the “bright-line rule” against liability for products that a defendant did not manufacture or sell “would not further the solicitude goal because it excluded too many injured sailors from a remedy.” Id. at 15.

The Court agreed with the petitioners, at least on the issue of whether it should review the case.  How the Court will decide the merits is another matter. The Court must decide whether applicable tort law holds a defendant liable for injuries caused by other companies’ products that are foreseeably added to the defendant’s product to make the product work properly. The Court likely must also decide whether the answer to that question differs depending on whether the claim asserted is negligence or strict liability, considering admiralty law’s general goals of “simplicity and practicality” and “promoting uniformity.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630-31 (1959). Also at issue is whether “the special solicitude for the safety and protection of sailors” in maritime law that the Court recognized in Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970), supersedes tort law requirements for holding product manufacturers liable for injuries to others. The Court’s decisions on these issues will have a significant impact on the adjudication of countless “bare metal” asbestos cases throughout the country. This is true even for those cases that do not implicate maritime law, given the Court’s need to address the general scope of tort liability in the “bare metal” product context to decide the case.


W. Clay Massey is a partner with Alston & Bird LLP in Atlanta, Georgia.

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