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.

Virginia

• Garlock Sealing Technologies, LLC v. Little (2005). Federal maritime tort law governs an asbestos claim based on exposure during repair and construction of vessels in navigable waters, and a party that induced the jury's apportionment among non-parties cannot then complain about how it was applied.
• Anderson v. Crown Cork & Seal (2000). A vessel is not itself a federal enclave. Where a Navy seaman's asbestos exposure occurred aboard ship and not in the shipyard, the ship's occasional docking in a federal enclave does not create federal enclave jurisdiction, and doubts about removal are resolved in favor of remand.
• McCormick v. CE Thurston & Sons, Inc. (1997). A Navy vessel is not a federal enclave, and federal officer removal fails without a colorable federal defense; the government contractor defense is not available in failure-to-warn cases in this district.
• Saunders v. HK Porter Co., Inc. (1986). The Fourth Circuit's Oman decision, which rejected admiralty jurisdiction in land-based shipyard worker asbestos cases, applies retroactively, so Virginia's two-year personal injury limitations period governs. Virginia Code § 8.01-249(4), under which asbestos claims accrue when diagnosis is communicated, applies only prospectively to cases filed after July 1, 1985.

Washington

• Deem v. Air & Liquid Systems Corporation (2023). Under maritime law a plaintiff must show actual exposure to the defendant's asbestos and that it was a substantial contributing factor, which requires substantial exposure for a substantial period when direct evidence is absent. The presence of a defendant's product at a shipyard is not enough.
• Lewis v. Washington State Department OF Labor and Industries (2nd Division, 2023). Under RCW 51.12.102 and Gorman, a worker or beneficiary who may have a claim under the Longshore and Harbor Workers' Compensation Act receives only temporary, interim state benefits, not permanent benefits. That reading does not unconstitutionally chill the jury trial right or violate equal protection.
• Welch v. Crane Co. (2023). Under maritime law, a plaintiff must show actual exposure to asbestos-containing materials from the defendant's product and that the exposure was a substantial contributing factor in causing the injury. The mere presence of a defendant's products on the ship is not enough. A manufacturer's duty to warn is assessed under the DeVries three-part test.
• Deem v. William Powell Co. (2022). A wrongful death claim under maritime law cannot accrue before the decedent's death, so the three-year limitations period under 46 U.S.C. § 30106 starts on the date of death (or later if the cause of death is not then known), not when the seaman learned of his illness.
• Behrmann v. Abb, Inc. (2021). A subcontractor that did not make or supply asbestos-containing products cannot be liable in products liability, and evidence that its employees worked on asbestos-containing equipment near the plaintiff does not alone create a genuine issue on negligence breach or causation.
• Behrmann v. Abb, Inc. (2021). Under maritime law, a plaintiff must show with evidence of the amount or duration of exposure that a defendant's asbestos product was a substantial factor in causing the disease; general evidence of possible exposure is not enough. A failure to warn claim fails when causation cannot be shown.
• Behrmann v. Abb, Inc. (2021). Maritime law applies to asbestos exposure on ships in drydock when the locality and connection tests are met, and under it a plaintiff must show substantial exposure to the defendant's asbestos for a substantial period. A court may defer summary judgment under Rule 56(d) when the nonmovant identifies specific facts it expects discovery to produce.
• Wineland v. Air & Liquid Systems Corp. (2021). Maritime law governed, and under it plaintiffs must show substantial exposure to asbestos from the defendant's own products, including the amount and duration of exposure. A manufacturer has no duty for third-party replacement parts unless its product required their use. State-law causation rules could not supplement maritime law where they conflict.
• Wineland v. Air & Liquid Systems Corp. (2021). Maritime law governed the claims and required evidence that exposure attributable to the shipyard was a substantial contributing factor in the injury, including the amount and duration of exposure. Speculation about what might have happened was not enough.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show exposure to asbestos attributable to the defendant was a substantial contributing factor, including evidence of the amount and duration of exposure. Showing that a defendant's products were present and the worker was occasionally exposed is not enough.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show evidence of the amount and duration of exposure to asbestos from the defendant's products sufficient to make a substantial-factor inference more than conjectural; placing a defendant's products in the workplace is not enough.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show that exposure to asbestos from the defendant's products was a substantial contributing factor in the injury, with evidence of the amount and duration of that exposure. Placing a defendant's products in the workplace and showing occasional exposure is not enough.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show exposure to a defendant's asbestos products was a substantial contributing factor, with evidence of the amount and duration of exposure. A manufacturer owes a duty to warn about third-party replacement parts only if its product requires the part to function as intended.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show that exposure to a particular defendant's asbestos product was a substantial contributing factor, including evidence of the amount and duration of exposure; placing a defendant's products in the workplace and showing occasional exposure to asbestos dust is not enough.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, a plaintiff must show that exposure to asbestos from the defendant's product was a substantial contributing factor in the injury, with evidence of the amount and duration of that exposure. Minimal or occasional exposure is not enough.
• Wineland v. Air & Liquid Systems Corporation (2021). Under maritime law, plaintiffs must show with evidence of the amount and duration of exposure that asbestos from the defendant's products was a substantial contributing factor in the injury. A manufacturer has no duty to warn about third-party replacement parts unless its product requires them to function as intended.
• Deem v. Air & Liquid Systems Corporation (2020). Under maritime law, a plaintiff must show actual exposure to asbestos-containing materials installed by the defendant and that the exposure was a substantial contributing factor; evidence that machinists sometimes worked on products that could have contained asbestos, supported only by speculative expert opinion, does not meet that standard.
• Wineland v. Air & Liquid Systems Corporation (2020). Expert testimony on a worker's asbestos exposure may rest on Navy records, a shipmate's declaration and the expert's experience even without eyewitness accounts of the specific work. Differences in the facts go to the weight of the evidence, not its admissibility.
• Clayton v. Air & Liquid Systems Corporation (2019). Strict liability under Restatement (Second) of Torts § 402A requires that the defendant be a seller or manufacturer, and a subcontractor that fabricated insulation pads only for immediate installation is neither. The government contractor defense failed because the cited military standards govern sellers' and manufacturers' shipping labels, not an installer's duty to warn, and Syd Carpenter did not show it provided the required warnings.
• Deem v. Air & Liquid Systems Corporation (2019). Under maritime law, the three-year limitations period for a wrongful death claim runs from when the decedent knew or should have known of his injury and its cause, not from the date of death.
• Deem v. Air & Liquid Systems Corporation (2019). A party invoking admiralty jurisdiction must show by a preponderance of the evidence that some exposure occurred on a vessel on navigable waters and that the connection test is met. Coworker testimony about dusty work aboard ships in the shipyard met that burden. A plaintiff moving to apply maritime law has no general burden to show a conflict with state law.
• Deem v. Air & Liquid Systems Corporation (2019). Under Deggs, a wrongful death claim against a defendant is barred when the decedent's personal injury claim against that defendant was not filed within the three-year limitations period, even if that period ran after his death.
• Deem v. Air & Liquid Systems Corporation (2019). After Air & Liquid Systems v. DeVries, a manufacturer in maritime tort law has a duty to warn when its product requires incorporation of a part, it knows or has reason to know the integrated product is likely dangerous, and it has no reason to believe users will realize the danger. The court deferred applying this standard pending further briefing.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington law (Lockwood), a plaintiff must show a reasonable connection between the injury and the particular defendant's product, and general evidence of asbestos on ships does not suffice. A defendant that files its answer after discovery closes, causing prejudice, waives an affirmative limitations defense.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (2019). Under Washington product liability law, a plaintiff must show a reasonable connection between the injury, the product and the manufacturer, and the Lockwood factors must support a finding that exposure to the defendant's product caused the injury. General evidence of shipboard asbestos and of asbestos causing the disease is not enough.
• Yaw v. Air & Liquid Systems Corporation (2019). A party seeking to amend after the scheduling-order deadline must show good cause under Rule 16(b)(4), and the plaintiff's husband's death just before the deadline met that standard. Because DeVries announced a new maritime-law duty-to-warn standard after briefing, the court required supplemental briefing before deciding summary judgment.
• Mikelsen v. Air & Liquid Systems Corporation (2018). Maritime law did not apply because the worker's exposure was mainly in a land-based shipyard machine shop, so Washington law governed. A jury could find causation even without proof the worker handled the defendant's product, and the government contractor defense was not shown as a matter of law.
• Woo v. General Electric Company (1st Division, 2017). A manufacturer generally has no duty to warn of asbestos in other makers' products used with its equipment, but a fact issue on duty exists where the evidence shows the equipment required asbestos-containing insulation, gaskets and packing to function as designed and the plaintiff was exposed to original gaskets and packing the manufacturer supplied.
• McCROSSIN v. Imo Industries, Inc. (2015). Under maritime law, a plaintiff can raise a genuine issue of material fact about asbestos exposure with either direct or circumstantial evidence, and expert testimony on exposure can suffice when other record evidence supports it. Here the expert also claimed personal knowledge.
• McCROSSIN v. Imo Industries, Inc. (2015). A defendant asserting that a third party's negligence was a superseding cause bears the burden of showing it, and the Navy's negligence must have been shown and unforeseeable. The government contractor defense in a failure-to-warn case requires that the government approved reasonably precise specifications limiting the contractor's ability to warn.
• McCROSSIN v. Imo Industries, Inc. (2015). Summary judgment fails where plaintiff offers testimony and expert opinion creating a genuine dispute whether the defendant's asbestos materials were on the ship and were a substantial factor in causing mesothelioma, under either state or maritime law. A defendant's superseding-cause and derivative sovereign immunity defenses also fail at this stage where factual disputes remain.
• McMann v. Air & Liquid Systems Corporation (2015). Maritime law governs a claim by a predominantly sea-based Navy worker exposed aboard a ship in dry dock, and under the Lindstrom standard the plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury; mere presence of the product at the workplace is not enough.
• McMann v. Air & Liquid Systems Corp. (2014). Under the federal officer removal statute, which is liberally construed, a defendant need only prove by a preponderance of the evidence a colorable government contractor defense and a causal nexus to federal direction. A plaintiff's disclaimer of claims subject to that defense does not defeat removal.
• Nelson v. Air & Liquid Systems Corporation (2014). Under maritime law, an asbestos plaintiff must show exposure to each defendant's product and that the product was a substantial factor in causing the injury. A manufacturer is not liable for replacement parts it did not place in the stream of commerce.
• Long v. State Dept. OF Labor and Industries (2nd Division, 2013). A worker covered by the federal Longshore and Harbor Workers' Compensation Act is excluded from the general provisions of the Washington Industrial Insurance Act, so the state's last-injurious-exposure rule does not apply. The Department must still pay temporary, interim state benefits under RCW 51.12.102(1) while it decides which program is liable, but it need not pursue a federal claim that no longer exists.
• Stevens v. CBS Corporation (2012). Circumstantial evidence can let a jury reasonably infer that a worker was exposed to a defendant's original or replacement asbestos-containing parts. Where the facts are disputed, summary judgment is not available on causation, the government contractor defense or assumption of risk. Under maritime law, Washington substantive law applies because it does not conflict with maritime law.
• Wangen v. AW Chesterton Company (1st Division, 2011). A pump manufacturer is not liable for asbestos in replacement gaskets, packing or insulation it did not manufacture or supply, and the plaintiff must show exposure to asbestos products made or supplied by that defendant. Evidence that the manufacturer specified asbestos parts did not defeat summary judgment where no authority supported liability on that basis.
• Braaten v. Saberhagen Holdings (2008). Under Washington common law strict liability and negligence, a manufacturer has no duty to warn of asbestos hazards in other manufacturers' products (insulation or replacement packing and gaskets) that it did not make or supply and was not in the chain of distribution of. The plaintiff also failed to show exposure to the original packing and gaskets supplied with the defendants' products.
• Campbell v. Lockheed Shipbuilding Corp. (1st Division, 2002). An employer that exposed a worker to asbestos is liable under the Longshore Act for the resulting indivisible occupational disease, and that liability is exclusive. The worker cannot sue that employer in tort as a third party for exposure that occurred while he worked for a subcontractor on the employer's premises.
• Miller v. Foster Wheeler Co. (1st Division, 1999). Under the Jones Act/FELA, a personal injury survival claim accrues at the time of injury and is barred if not filed within three years of that date, even if the separate wrongful death claim, filed within three years of death, is timely.