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

By Schneider, Brian J. | Defense Counsel Journal, July 2019 | Go to article overview

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


Schneider, Brian J., Defense Counsel Journal


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.

I.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. …

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