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TRITT v. ATLANTIC RICHFIELD CO.

March 31, 1989

DARROW L. AND MARIE TRITT
v.
ATLANTIC RICHFIELD COMPANY, et al.



The opinion of the court was delivered by: DITTER, JR.

 J. WILLIAM DITTER, JR., UNITED STATES DISTRICT JUDGE.

 Before me are motions for summary judgment filed by various defendants, manufacturers and distributors of asbestos-containing products. *fn1" Plaintiffs' complaint alleges jurisdiction under the admiralty law, 28 U.S.C. § 1333, and under the Jones Act, 46 U.S.C. § 688. Defendants seek to dismiss plaintiffs' claims against them on the grounds that the court lacks subject matter jurisdiction. *fn2" For the reasons set forth below, that motion is denied.

 FACTS

 DISCUSSION

 I. Admiralty Jurisdiction over Claims by Darrow Tritt

 The Jones Act, 46 U.S.C. § 688, permits a seaman who suffers personal injuries in the course of his employment to sue his employer for damages in federal court. The rights available under the Jones Act, however, do not extend to suits against third parties who are not plaintiff's employer. See Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 789-90, 93 L. Ed. 1692, 69 S. Ct. 1317 (1949). As none of the defendant asbestos companies were Tritt's employer, and since diversity of citizenship is lacking, Tritt can only proceed on his claims against these defendants if the court has admiralty jurisdiction.

 To invoke the court's admiralty jurisdiction pursuant to 28 U.S.C. § 1333, Tritt must satisfy the two-prong test of Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972). See also East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S. Ct. 2295, 2299, 90 L. Ed. 2d 865 (1986) (recognizing products liability, including strict liability, as part of general maritime law). He must establish (1) that his injury occurred on navigable waters and (2) that the alleged "wrong bear[s] a significant relationship to traditional maritime activity." Executive Jet, 409 U.S. at 268. If the wrong "is only fortuitously and incidentally connected to navigable waters," id. at 273, the court lacks admiralty jurisdiction. *fn4"

 In this case, defendants have not challenged Tritt's contention that his alleged injuries were sustained on navigable waters. Defendants maintain, however, that Tritt's complaint fails the second prong of the Executive Jet test because his asbestos-related claims do not bear a significant relationship to maritime activity.

 In Edynak v. Atlantic Shipping, Inc. CIE. Chambon Maclovia S.A., 562 F.2d 215 (3d Cir. 1977), cert. denied, 434 U.S. 1034, 54 L. Ed. 2d 781, 98 S. Ct. 767 (1978), the Third Circuit adopted the Fifth Circuit's criteria for determining whether torts occurring on navigable waters have the requisite maritime nexus. The court considered (1) the functions and roles of the parties; (2) the types of vehicles and instrumentalities involved; (3) the causation and the type of injury; and (4) traditional concepts of the role of admiralty law. Id. at 221 (citing Kelly v. Smith, 485 F.2d 520, 525 (5th Cir. 1973), reh'g denied, 486 F.2d 1403, cert. denied sub nom., Chicot Land Co. v. Kelly, 416 U.S. 969, 40 L. Ed. 2d 558, 94 S. Ct. 1991 (1974)).

 Defendants cite Woessner v. Johns-Manville Sales Corp., 757 F.2d 634 (5th Cir. 1985), in support of their contention that Tritt's role aboard ship and their role as manufacturers of asbestos-containing products did not have the appropriate connection to maritime activity. Unlike Tritt, however, the plaintiffs in Woessner were land-based insulators employed by various contractors engaged in both maritime and non-maritime work. *fn5" Whereas the Woessner plaintiffs only spent between twenty-five and sixty percent of their time working on ships, id. at 637, Tritt was a career sailor whose contact with asbestos insulation was directly linked to his work aboard ocean-going vessels. Tritt's "function and role" aboard ARCO's vessels bore at least a "significant relationship" to maritime activity.

 Defendants correctly note that in evaluating the first Kelly factor, the Woessner court considered that "the defendants . . . are in no way uniquely tied to the maritime industry." Id. at 643. The court made clear, however, that this fact, alone, is not dispositive of the jurisdictional question. Id. at 647 (citing Sperry Rand Corp. v. Radio Corp. of America, 618 F.2d 319 (5th Cir. 1980), in which a panel of the Fifth Circuit reversed a district court's decision denying admiralty jurisdiction where the defendants, manufacturers of small component parts, had not specifically designed their products for incorporation into marine systems). Allowing asbestos manufacturers and distributors to avoid the federal courts' admiralty jurisdiction simply because their products have a variety of uses, many of which are non-maritime, unduly prejudices those seamen whom admiralty law was designed to protect and undercuts the advantages derived from uniformity of law governing products liability in admiralty. Even if defendants had not designed their asbestos products specifically for maritime use, their appearance aboard ARCO's vessels was certainly not fortuitous. *fn6" Hence, I find that since defendants reasonably could expect that their products would be utilized aboard ocean-going vessels, Tritt has satisfied the first factor of the Kelly test.

 Tritt also satisfies the second Kelly factor, requiring a significant relationship between the types of vehicles and instrumentalities involved in his injury and maritime activity. Tritt spent the better part of twenty-three years at sea. The duties he performed that brought him into contact with asbestos products ensured that there was sufficient steam to run the ships, that piping did not become clogged with insulation materials, and that the engine rooms did not overheat or become too highly pressurized. Tritt's job, and the asbestos-containing ...


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