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March 18, 1987

Eagle-Picher Industries, Inc.
United States of America

The opinion of the court was delivered by: POLLAK


 This is a suit against the United States brought by Eagle-Picher Industries, Inc., under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the United States has moved to dismiss for failure to state a claim on which relief can be granted. In the alternative -- i.e., in the event that its Rule 12(b)(6) motion is denied -- the United States asks that the governing legal questions be certified to the Court of Appeals, pursuant to 28 U.S.C. § 1292(b). To clarify the issues tendered by these motions, it will be helpful to describe the background of this litigation. *fn1"


 In 1979, Eagle-Picher and twenty-one other manufacturers and/or distributors of asbestos were sued by Charles and Thelma Press in the Philadelphia Court of Common Pleas. Charles Press v. Johns-Manville Corp., No. 4802 (Case No. 8), Pennsylvania Court of Common Pleas, Philadelphia County, January Term, 1979. The gravamen of that law suit was that Mr. Press had been a civilian shipyard worker employed by the United States at the Philadelphia Naval Shipyard (hereinafter "PNS") to do sheetmetal work from 1941 to 1943, and from 1946 to 1979, *fn2" and that in the course of this employment he had been "exposed to asbestos in connection with the application, use, and removal" of asbestos-based insulation materials manufactured and distributed by the defendants. Amended Complaint, Eagle-Picher Industries, Inc. v. United States of America, (E.D. Pa., C. A. No. 85-4846) paragraph 11. In 1983, Mr. Press died of mesothelioma, asbestosis and respiratory failure. Mrs. Press continued to pursue her late husband's claim and her own consortium claim, and in February of 1984 she won an aggregate verdict of $575,000 against Eagle-Picher and six other defendants. Two months later, Eagle-Picher settled its portion of Mrs. Press' law suit for $67,824.40.

 The complaint initially filed by Eagle-Picher advanced numerous theories of recovery in support of its claim that the United States was indebted to it for the sum spent to resolve the Press litigation. One of those theories -- and only one -- had, a year before, in a case much like the one at bar, been found to be a viable basis for a claim of contribution or indemnity against the United States. That analogous case -- also on my docket -- was Colombo v. Johns-Manville Corp., 601 F. Supp. 1119 (E.D. Pa. 1984). There, George Colombo, a government shipyard worker employed at PNS, sued Pittsburgh-Corning, an asbestos manufacturer, for injuries allegedly suffered as a result of his exposure to asbestos, some of which he claimed occurred on board vessels owned by the United States. Pittsburgh-Corning in turn impleaded the United States as a third-party defendant. The third-party claim sustained in Colombo rested on the Federal Tort Claims Act, which imposes tort liability on the United States whenever such liability would attach to "a private individual under like circumstances." 28 U.S.C. § 2674. I determined that, had the United States been a private Pennsylvania shipowner, covered by the Pennsylvania Workmen's Compensation Act (hereinafter "PWMCA"), and had Mr. Colombo been employed by that shipowner to work on one or more of its ships, Mr. Colombo could, pursuant to Section 5(b) of the Longshoreman and Harbor Workers' Compensation Act (hereinafter "LHWCA"), 33 U.S.C. § 905(b), *fn3" have brought a negligence action against the shipowner. *fn4" I further determined, in Colombo, that Pittsburgh-Corning was substantively entitled to implead the United States, because "both Pennsylvania law and federal maritime law provide for contribution among joint tortfeasors, where both are actively negligent." 601 F. Supp. at 1139. And I rejected the argument advanced by the United States that a third-party plaintiff's substantive entitlement to implead an employer as joint tortfeasor is, as respects employers covered by LHWCA, barred by the exclusivity language in Section 5(a) of the Act, 33 U.S.C. § 905(a). *fn5" Because Colombo settled, the Court of Appeals for the Third Circuit had no opportunity to review the correctness of this court's decision sustaining the legal sufficiency of Pittsburgh-Corning's third-party tort claim against the United States. The issues involved in Colombo have not been addressed by the Third Circuit in any other case.

 In the instant case, subsequent to the filing of Eagle-Picher's multi-count complaint against the United States, a chambers conference was held. At that conference the parties agreed to pursue the following course of action: Eagle-Picher would file an amended complaint, confining its claim to the count modelled on the third-party tort claim sustained in Colombo. On the filing of the amended complaint, the United States would move (a) to dismiss for failure to state a legally cognizable claim, and (b), in the alternative, for certification of the question to the Third Circuit. The motion to dismiss was, in effect, to be a request that I reconsider my Colombo ruling in light of an interpretation of LHWCA presented in two supervening decisions of the First Circuit, Drake v. Raymark Industries, Inc., 772 F.2d 1007 (1st Cir., 1985), cert. denied, 476 U.S. 1126, 106 S. Ct. 1994, 90 L. Ed. 2d 675 (1986) and In re All Maine Asbestos Litigation (PNS Cases), 772 F.2d 1023 (1st Cir. 1985), cert. denied, 476 U.S. 1126, 106 S. Ct. 1994, 90 L. Ed. 2d 675 (1986). To these decisions I now turn.


 A. Drake v. Raymark Industries

 Drake was a case very like Colombo, except that the third-party defendant was a private entity. Mildred Drake, whose late husband, Forrest Drake, was a shipyard worker employed by Bath Iron Works (hereinafter "BIW"), brought a diversity products-liability action in the United States District Court in Maine against several manufacturers and distributors of asbestos products. The complaint alleged that Mr. Drake had contracted asbestos-related diseases from defendants' products while engaged in shipbuilding and ship-repair operations on vessels in the BIW shipyards. Raymark Industries and other defendants filed a multi-count third-party complaint against BIW in the Drake litigation, as well as in approximately fifty other cases. *fn6" In a series of opinions, Judge Gignoux dismissed all contribution/indemnity counts of the third-party complaint. *fn7" The count based on § 905(b) of LHWCA was found wanting because, so Judge Gignoux determined, "BIW was not during the relevant periods the owner pro hac vice of vessels being constructed or repaired in its yard . . . ." *fn8" The First Circuit affirmed all of Judge Gignoux's rulings, but did not adopt all of his reasoning: In sustaining dismissal of the § 905(b) count, the First Circuit blazed a trail longer and broader than Judge Gignoux's.

 To understand the First Circuit's approach to the matter, it will be useful to refer briefly to the general structure of LHWCA. Complementing the Jones Act, which provides federal protection for seamen, the Longshoremen's and Harbor Workers' Compensation Act provides federal protection for land-based maritime workers -- i.e., all persons "engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker . . . ." 33 U.S.C. § 902(3). Most of the provisions of LHWCA comprise a workmen's compensation statute. However, § 905(b), added in the 1972 revision of the Act, establishes a statutory cause of action sounding in tort where the injury complained of is the result of negligence on the part of a "vessel":

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 action against such vessel as a third party . . . and the employer shall not be liable to the vessel for such damages directly or indirectly. . . . *fn9"

 The First Circuit, in describing the third-party claims brought by Raymark and the other Drake defendants against Bath Iron Works, characterized the central issue -- and its resolution of that issue -- in the following terms:

Appellee BIW contends that defendants' § 905(b) action cannot be maintained because the injury allegedly caused by BIW's dereliction of duty as a shipowner pro hac vice was not a maritime tort, which is a fundamental requirement for an injury to be cognizable under § 905(b). The appellants respond by arguing that an independent basis for admiralty jurisdiction need not be shown to redress an injury under the section; all that is required is satisfaction of the literal words of the statute, which does not so much as mention the words "maritime tort" or "admiralty jurisdiction."
The question before us, then, is: does § 905(b) recognize only maritime torts, i.e., torts cognizable in admiralty (regardless of the actual basis of jurisdiction, such as diversity), or does its range encompass nonmaritime torts occurring on a vessel but where the tests for admiralty jurisdiction are not satisfied? After careful study, we think the scope of § 905(b) is limited to maritime torts.

 772 F.2d at 1012.

 In anchoring the issue in the concept of "maritime tort," the First Circuit expressly linked its analysis to its own prior decision in Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir. 1983), cert. dismissed, 463 U.S. 1247, 77 L. Ed. 2d 1454, 104 S. Ct. 34 (1983), and to the Supreme Court's decision in Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972). Because of their centrality to the Drake opinion, a brief summary of each of these cases may be helpful.

 Executive Jet was a negligence action brought in admiralty by the owners of a jet airplane against the City of Cleveland, the manager of Cleveland's municipal Burke Lakefront Airport, and an air traffic controller on duty at the airport at the time of the alleged negligence. The alleged negligence was failure to keep the airport free of, and/or failure to advise the plane crew of the presence of, seagulls whose inspiration into the jet engines on takeoff brought the plane to an immediate and abrupt halt in Lake Erie. *fn10" Justice Stewart, writing for a unanimous Court, affirmed the determinations of the district court and the Sixth Circuit that the district court lacked subject-matter jurisdiction. Admiralty jurisdiction over "aeronautical torts" is not established simply by the happening of a wrong "on or over navigable waters -- whatever that means in an aviation context"; it is also necessary "that the wrong bear a significant relationship to traditional maritime activity." 409 U.S. at 268. ". . . We hold that, in the absence of legislation to the contrary, there is no federal admiralty jurisdiction over aviation tort claims arising from flights by land-based aircraft between points within the continental United States." Id. at 274 (footnote omitted).

 Austin v. Unarco was a suit against several manufacturers and distributors of asbestos brought by the estate of a deceased Bath Iron Works employee who "worked on board ships berthed in the Kennebec River at BIW, both on new ships berthed in the river after launching and on older ships brought into BIW for repair. His primary job was to follow behind the pipecoverers, who applied asbestos insulation products to the ships' pipes, boilers and others machinery, and paint over the asbestos insulation. He was also responsible for sweeping up asbestos scraps left by the pipecoverers." 705 F.2d at 3. The court rejected plaintiff's contention that the case should have been tried not as a diversity case but in admiralty, where Maine's contributory negligence defense would have had no application. "We acknowledge that . . . distinguishing between activities that are maritime and those that are not approaches medieval nicety. In this case, however, the conclusion that decedent's activity was not 'traditionally maritime' is indicated by a congeries of factors -- the vessel, whether under construction or laid up for repairs, was passive and ...

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