Maritime Law and Navy Ships in Asbestos Cases

Decisions in our library in which the court ruled on maritime law: 344 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

Louisiana

• Marsh v. Continental Insurance Company (2023). In maritime asbestos cases, the liability of non-settling defendants is calculated in proportion to the jury's allocation of responsibility rather than by a pro tanto credit, which applies only when fault cannot be fairly apportioned. Maritime asbestos litigation is not 'non-ordinary' so as to justify a departure from this rule.
• Ragusa v. Louisiana Guaranty Insurance Association (2023). The LHWCA applies as it existed when the disease manifested, and its exclusivity provision preempts a covered worker's state negligence and intentional tort claims against his employer. Awareness of asbestos risk does not show that mesothelioma was substantially certain to result.
• Robichaux v. Huntington Ingalls Inc. (2023). A scheduling order may be modified for good cause under Rule 16(b)(4). A pending certiorari petition that could change the governing law on LHWCA preemption supported a continuance.
• Robichaux v. Huntington Ingalls Inc. (2023). Under Barrosse, the LHWCA does not preempt state tort claims by maritime workers injured in the twilight zone in Louisiana who neither sought nor obtained LHWCA compensation and whose injuries were not covered by the relevant version of the state workers' compensation act.
• Rushton v. Taylor-Seidenbach, Inc. (2023). A court may enter partial final judgment under Rule 54(b) when it has disposed of one party in a multi-party case and there is no just reason for delay. Here an immediate appeal would let the Fifth Circuit resolve a recurring LHWCA preemption question.
• Cortez v. Lamorak Ins. Co. (2022). The LHWCA preempts state-law tort claims, including take-home exposure claims, by a covered maritime worker against his employer and the employer's insurer, and the date the disease manifested determines which version of the LHWCA applies. Plaintiff also failed to produce evidence of an intentional tort under Louisiana's substantial-certainty standard.
• Cortez v. Lamorak Insurance Company (2022). The LHWCA preempts state-law tort claims by a covered shipyard worker against his employer for his own employment exposure, but it does not preempt claims against the same company as a non-employer for take-home exposure that occurred before he worked there. Intentional-tort claims fail where there is no evidence that the disease was inevitable or substantially certain to result.
• Morales v. Anco Insulations Inc. (2022). The Longshore and Harbor Workers' Compensation Act preempts state-law tort claims against a covered employer, its executive officers and its insurers for an employee's occupational asbestos disease, because allowing them would undermine the Act's compensation-for-immunity exchange.
• Sentilles v. Huntington Ingalls Inc. (2022). Under the Fifth Circuit's manifestation rule, the LHWCA version in effect when the disease manifested applies. A shipyard employer is therefore immune from state-law tort claims for covered workers' occupational exposure, including take-home exposure from a coworker brother employed there at the same time.
• Sentilles v. Huntington Ingalls Inc. (2022). Under the manifestation rule, the post-1972 LHWCA applies to a mesothelioma diagnosed in 2020. A shipyard worker's state-law tort claims against his employer, including take-home exposure from a coworker brother employed at the same time, are preempted by the LHWCA's exclusivity provision.
• Sentilles v. Huntington Ingalls Incorporated (2022). A court may certify a dismissal of one party for immediate appeal under Rule 54(b) when there is no just reason for delay, such as when delay risks repeated litigation of the same issue and retrial that outweighs the policy against piecemeal appeals.
• Barrosse v. Huntington Ingalls Incorporated (2021). The post-1972 LHWCA applies to a long-latency asbestos disease based on the date the disease manifested. For covered shipyard workers in the 'twilight zone', the LHWCA's exclusivity provision preempts state-law negligence claims against the employer, and retroactive application does not violate due process.
• Hutchins v. Anco Insulations, Inc. (2021). Under Rule 56(d), a court may deny a summary judgment motion as premature when the opposing party shows a plausible basis that discovery will yield facts bearing on the outcome, and an opposition signed by counsel can satisfy the affidavit requirement.
• Hsieh v. Apache Deepwater, LLC (2020). A Rule 59(e) motion cannot be used to raise arguments that could have been made earlier. OCSLA jurisdiction was properly found based on the plaintiff's own sworn discovery responses and complaint, without a separate affidavit from the defendant on the work location.
• Latiolais v. Huntington Ingalls, Incorporated (2020). After the 2011 amendment adding "relating to," a defendant may remove under the federal officer removal statute if it asserts a colorable federal defense, is a "person," acted pursuant to a federal officer's directions, and the charged conduct is connected or associated with that act. The earlier "causal nexus" test is overruled.
• Marsh v. Huntington Ingalls, Incorporated (2020). Accepting the petition's allegations as true, a plaintiff exposed to asbestos aboard ships in Louisiana waters and ports who alleges the defendant supplied asbestos products to those sites has shown prima facie personal jurisdiction and stated a plausible products liability claim under general maritime law (Restatement (Second) of Torts 402A).
• McAllister v. McDERMOTT, Inc. (2020). Under general maritime law a plaintiff must show a defendant's conduct was a substantial factor in the injury, and circumstantial evidence can show exposure, but not when nothing shows the defendant's product was present at the worksite. Louisiana law governed successor liability and does not recognize the product line exception.
• McAllister v. McDERMOTT, Inc. (2020). Under general maritime law and the Jones Act, a decedent's pre-death pain and suffering is treated as a pecuniary loss recoverable by the estate, and loss of support or household services damages go only to survivors who show they received such support or services.
• Roussell v. Huntington Ingalls, Inc. (2020). A defendant seeking federal-officer removal under 28 U.S.C. § 1442(a)(1) need only show a colorable (plausible) federal defense, such as Boyle government contractor immunity, and that defense can rest on work on government-contract vessels built under federal specifications requiring asbestos.
• Bagwell v. Union Carbide Corporation (4th Circuit, 2019). A jury's choice between conflicting views of the evidence on exposure and causation will not be disturbed on review. An appellate court that finds a general damages award an abuse of discretion may raise it to the lowest reasonable amount, guided by awards in similar mesothelioma cases.
• Bondurant v. 3M Company (2019). A boilerplate disclaimer of claims arising from federal officers' acts does not defeat federal officer removal where the plaintiff still brings strict liability claims and defendants show a colorable government contractor defense, federal direction and a causal nexus.
• Savoie v. Huntington Ingalls (2019). Wrongful death claims by the survivors of a shipyard worker covered by the LHWCA are barred by the Act's exclusivity provisions, and the court did not need to decide whether an intentional tort exception exists because the intentional tort claims had already been dismissed.
• Schindler v. Dravo Basic Materials Company (2019). An expert's specific-causation opinion in an asbestos case is unreliable under Rule 702 when it rests on too little information about the plaintiff's exposure and on an 'each and every exposure' theory. The Jones Act's lower causation burden does not relax the Rule 702 reliability standard.
• Schindler v. Dravo Basic Materials Company, Incorporated (2019). Ordinary Rule 702 and Daubert reliability standards apply in Jones Act cases despite the reduced causation burden, and toxic-tort claims need expert proof of causation, so experts who merely assumed exposure on the vessel were properly excluded.
• Melancon v. Lamorak Insurance Company (2018). Federal officer removal requires a causal nexus between the defendant's actions under federal direction and the plaintiff's claims. Negligence and failure-to-warn claims about how asbestos was handled do not meet it without evidence the government controlled safety procedures or warnings, and a boiler maker acts under a federal officer only for boilers made for the military.
• Schindler v. Dravo Basic Materials Company, Inc. (2018). Temporal limits used in general jurisdiction analysis do not apply to specific jurisdiction; a plaintiff's claim arising from the defendant's Louisiana activities at the time of exposure supports specific jurisdiction, and the defendant must then show that exercising jurisdiction is unreasonable.
• Bell v. Foster Wheeler Energy Corp. (2017). Under the court's narrowed bare metal defense, a component maker can be liable under general maritime law if it substantially participated in integrating its part with asbestos products or recommended asbestos for use with its part. A manufacturer is not liable merely because asbestos ended up on its product, or because asbestos use was foreseeable.
• Bell v. Foster Wheeler Energy Corp. (2017). Under general maritime law, an expert's specific causation opinion in a multi-defendant mesothelioma case is unreliable under Rule 702 if it rests only on population-level studies of exposure levels and not on the plaintiff's own exposure history. Experts may still testify on general causation and on what studies show, but may not offer a backdoor specific causation opinion.
• Bell v. Foster Wheeler Energy Corp. (2017). Where a seaman's asbestos exposure occurred both on the high seas and in territorial waters, DOHSA does not bar a survival action, which proceeds under general maritime law. Under general maritime law a seaman's survivors may recover only pecuniary losses, but pre-death pain and suffering is treated as pecuniary.
• Savoie v. Pennsylvania General Insurance Co. (2017). A removing defendant under the federal officer removal statute need only show a colorable government contractor defense under Boyle, and may supplement its removal notice with affidavits under 28 U.S.C. § 1653 when they clarify grounds already stated in the notice.
• Bell v. Foster Wheeler Energy Corp. (2016). Under maritime law, a manufacturer is not liable merely because its product might foreseeably be used with asbestos; liability depends on whether it added the asbestos, took part in design integration, negligently entrusted a component, or negligently recommended asbestos use. The court rejected both the Sixth Circuit's absolute bare metal defense and the broader exceptions other courts have adopted.
• Savoie v. Pennsylvania General Insurance Co. (2015). To remove under the federal officer removal statute, a defendant must show a causal nexus between its actions under federal direction and the claims; for failure-to-warn and strict-liability claims, that requires showing the government directly controlled warnings or how asbestos materials were handled, not just that it mandated the materials. A federal defense such as the LHWCA cannot independently support removal.
• Zeringue v. Allis-Chambers Corp. (2015). A defendant removing under the federal officer removal statute need not prove its federal defense but must still support its jurisdictional facts with competent evidence. Generalized affidavits about Navy practice did not show that the government exercised discretion over the specific design and warnings at issue.
• Bartel v. Alcoa Steamship Co. (2014). Jones Act claims cannot be removed under the general removal statute, and a defendant seeking federal officer removal must show with evidence that a federal officer directed its conduct and that this conduct is causally connected to the plaintiff's claims.
• Bartel v. Alcoa Steamship Company (2014). A properly pleaded Jones Act claim is non-removable under § 1445(a), and without a federal question claim § 1441(c) does not allow removal. Federal officer removal under § 1442(a)(1) requires evidence that a federal officer directed the defendant's actions with a causal nexus to the claims, and a contractor sued for failure to warn of asbestos must show such direction.
• Genusa v. Asbestos Corp. Ltd. (2014). A third-party claim against unions that depends on interpreting collective bargaining agreements is completely preempted by LMRA Section 301 and supports removal. Claims that are not within original or supplemental jurisdiction must be severed and remanded, and a court may decline supplemental jurisdiction over state-law tort claims.
• Genusa v. Asbestos Corporation Limited (2014). Third-party claims that depend on interpreting collective bargaining agreements are completely preempted by LMRA Section 301 and support removal. The plaintiff's state-law asbestos claims, which did not invoke admiralty or LHWCA jurisdiction, must be severed and remanded, or supplemental jurisdiction declined.
• Najolia v. Northrop Grumman Ship Systems, Inc. (2012). A defendant may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), by showing it acted under a federal officer's direction, has a colorable federal defense, and there is a causal nexus between plaintiff's claims and its federal acts; a design-defect claim satisfying this makes the whole action removable.
• Bourque v. Anco Insulations, Inc. (3rd Circuit, 2009). When a longshoreman's alleged asbestos exposure occurred only aboard a vessel over navigable waters, the LHWCA is the exclusive remedy and state remedies are precluded, because the case falls outside the concurrent state-federal 'twilight zone'.
• DiBenedetto v. Noble Drilling Company (4th Circuit, 2009). A plaintiff with mesothelioma whose first significant exposure predated 1975 (when Louisiana's compensation act began covering the disease) is not limited to LHWCA benefits and may bring a state tort suit against employers and their executive officers. A plaintiff may also dismiss defendants with prejudice, and article 1671 does not give the trial court discretion to refuse.
• Adams v. Owens-Corning Fiberglas Corp. (1st Circuit, 2005). A tort claim against an employer for asbestos exposure accrues under the law in force at the time of significant exposure, so exposure before the 1972 LHWCA extension to land-based work and before workers' compensation covered a disease does not bar a tort suit. The exception of no cause of action based on an affirmative defense is sustained only if the petition excludes every reasonable hypothesis other than the defense.
• Hernandez v. Todd Shipyards Corporation (2004). The LHWCA, raised as a defense to state law claims, does not completely preempt them or create federal question jurisdiction, because it lacks a civil enforcement provision creating a federal cause of action and a specific jurisdictional grant to federal courts.
• Torrejon v. Mobil Oil Co. (4th Circuit, 2004). Under the Jones Act a seaman need only show the employer's negligence was a cause, however slight, of the injury, and the jury's finding of negligent asbestos exposure together with the stipulation that asbestos caused the mesothelioma left no reasonable basis for finding no causation. A defendant seeking to reduce liability for settling manufacturers' fault must prove their liability, and allegations in another suit's complaint do not do so.
• Hennegan v. Cooper/T. Smith Stevedoring Co. (4th Circuit, 2002). Under federal maritime law, a manufacturer is strictly liable if its asbestos product, unreasonably dangerous and sold without warnings, was a substantial contributing cause of the harm. A non-settling defendant is solidarily liable for the whole of the damages, less the fault share of the settling employer.
• Abadie v. Metropolitan Life Ins. Co. (5th Circuit, 2001). In a long-latency asbestos case, a cause of action accrues, for choosing between pre- and post-1976 law, when exposures were significant enough to start a disease process that progresses independently of further exposure. Under pre-comparative-fault Louisiana law, a settling or bankrupt solidary obligor found liable counts as a virile (pro rata) share, and co-employee safety officers are liable only for a personal breach of a delegated duty.
• Held v. Avondale Industries, Inc. (4th Circuit, 1996). A marine surveyor who is not a seaman is not barred by maritime law from asserting Louisiana state remedies, and a plaintiff's expert affidavit that any exposure contributed to mesothelioma raises a genuine issue of material fact on causation that prevents summary judgment.

Maine

• In re All Maine Asbestos Litigation (1986). Following First Circuit precedent, a vessel-owner claim under LHWCA section 905(b) reaches only maritime torts, and asbestos injuries to shipyard workers are not maritime torts. Claims against the United States under the FTCA are barred by the discretionary function exception where the government made policy-based safety decisions, but not where facts are disputed about whether Navy personnel had discretion.
• Austin v. Unarco Industries, Inc. (1983). A shipyard worker's asbestos products liability claim against manufacturers is not within admiralty jurisdiction because his work was not traditional maritime activity. A bankruptcy debtor's automatic stay does not extend to solvent co-defendants. An appellate court applies a state-law clarification made after trial.
• Austin v. Johns-Manville Sales Corp. (1981). Under the LHWCA's exclusive liability provision, a compensation-paying employer is immune from third-party contribution or indemnity claims unless it specifically intended to injure the employee. Allegations of reckless misconduct, fraud about workplace hazards, or negligent medical care furnished under the Act do not overcome that immunity.

Maryland

• Hailey v. Air and Liquid Systems Corporation (2020). A plaintiff must show, for each defendant separately, regular and frequent (or substantial) exposure to that defendant's own product where the plaintiff actually worked; the mere presence of a defendant's product somewhere in the workplace is not enough. The court found the result the same under Maryland and maritime law.