Paul Hammer, Administrator of the Estate of Irving Hammer et al. v. A.L. Burbank & Co., Inc. (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTIONS FOR DETERMINATION OF CHOICE OF LAW

Defendants:  Alfa Laval Inc. (Motion No. 654);  Armstrong International, Inc. (Motion No. 535);  Blackmer Pump (Motion No. 628);  CBS Corporation (Motion No. 405);  Clark Reliance Corporation (Motion No. 629);  Cleaver–Brooks, Inc. (Motion No. 536);  Crane Co. (Motion No. 614);  Electrolux Home Products, Inc. (Motion No. 630);  Elliott Company (Motion No. 601);  Flowserve US, Inc. (Motion No. 615);  FMC Corporation (Motion No. 627);  General Electric Company (Motion No. 639);  Rockwell Automation, Inc. (Motion No. 616);  Spirax Sarco, Inc. (Motion No. 631);  Tate Andale (Motion No. 617);  Warren Pumps, LLC (Motion No. 632)

I

FACTS

The plaintiffs, Paul Hammer, administrator CTA to the estate of Irving Hammer, and Sylvia Hammer, as surviving spouse of the decedent, Irving Hammer, filed a sixth amended complaint on June 6, 2013 against various defendants, including the above-captioned moving defendants.   Count one claims that the decedent, Irving Hammer, was exposed to various asbestos-containing products of the defendants “while working as a Merchant Marine during the years 1944–1979 and as an inspector during the 1950s.   Such exposure in Connecticut contributed in part or totally to the plaintiff's contraction of asbestos-related [m]esothelioma and other asbestos-related pathologies.”   Count one further alleges liability pursuant to the Connecticut Product Liability Act, General Statutes § 52–572m et seq.   The second count alleges a claim under Connecticut's Wrongful Death Statute, General Statutes § 52–555.   Sylvia Hammer brings a claim for a loss of consortium in count three.   Count four asserts that, since 1929, the defendants possessed medical and scientific data, as well as studies and reports, indicating that asbestos-containing products were hazardous to the health and safety of the decedent and to all human beings who were exposed to such products.   Accordingly, the plaintiff alleges that the defendants' misconduct was grossly negligent, wilful, wanton, malicious and/or outrageous.   Count five realleges the allegations contained in the preceding counts and is directed against, inter alia, Shipcentral, Ltd.¹

The above-captioned moving defendants have filed motions for a determination of choice of law on the basis that this court should apply federal maritime law to this action.²  The defendants maintain that there is a conflict between Connecticut tort law and federal maritime law and that both the locality and nexus tests mandated by maritime law have been met.   In addition, the defendants argue that §§ 6 and 145 of the Restatement (Second) of Conflict of Laws mandate the application of maritime law to this case.

The plaintiffs have filed a series of “omnibus objections.”   The plaintiffs argue for the application of Connecticut tort law to this action and against the application of maritime law.   They emphasize that a court may exercise admiralty jurisdiction only when a party meets two conditions relating to maritime activity:  location and connection.   The plaintiffs, focusing on the connection test, maintain that asbestos exposure on a vessel constitutes only a “fanciful” risk to maritime commerce and that the defendants' acts of incorporating, or specifying, the inclusion of asbestos does not substantially relate to traditional maritime activity.   Alternatively, the plaintiffs contend that even if this court exercises admiralty jurisdiction, such jurisdiction does not automatically displace state law and that Connecticut product liability law should determine the defendants' liability.   The plaintiffs emphasize that the relationship between federal maritime law and state law has yet to be clearly defined and, under certain circumstances, maritime law may incorporate state law principles.   They note that federal maritime law lacks a clear rule concerning a defendant's liability for after-applied asbestos insulation or replacement asbestos parts, therefore, this court may incorporate or annex Connecticut legal principles when interpreting and applying federal maritime law.

II

DISCUSSION

A party invoking admiralty ³ jurisdiction with respect to a tort claim “must satisfy conditions both of location and of connection with maritime activity.   A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water ․ The connection test raises two issues.   A court, first, must assess the general features of the type of incident involved ․ to determine whether the incident has a potentially disruptive impact on maritime commerce ․ Second, a court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to maritime activity.”  (Citations omitted;  internal quotation marks omitted.)   Jerome B. Grubart v. Great Lakes Dredge & Dock, 513 U.S. 517, 534, 115 S.Ct. 1043, 130 L.Ed. 1024 (1995).

As this court stated in its Order dated April 20, 2013, parties invoking federal maritime law must provide evidence demonstrating that the conditions set forth in the United States Supreme Court case of Jerome B. Grubart v. Great Lakes Dredge & Dock, supra, have been satisfied.   As set forth above, when applying the location test, a court must decide whether the tort occurred on navigable water or, if the injury occurred on land, whether it was caused by a vessel on navigable water.   See Jerome B. Grubart v. Great Lakes Dredge & Dock, supra, 513 U.S. 534.   Here, the plaintiffs allege that the decedent's alleged injuries occurred while he worked as a merchant marine during 1944 to 1979 and as a boiler inspector during the 1950s.   In addition, the court has reviewed the parties' evidence with respect to the Grubart location test and is satisfied that the requisite conditions have been met.

Turning to the connection test, the court must determine whether the incident has (1) a “potentially disruptive impact on maritime commerce” and (2) whether “the general character of the activity giving rise to the incident shows a substantial relationship to maritime activity.”  Jerome B. Grubart v. Great Lakes Dredge & Dock, supra, 513 U.S. 534.   The post-Grubart case law informs that the connection test is met, for example, when plaintiffs serve aboard a sea-based Navy vessel and allegedly are exposed to asbestos-containing products while engaged in the repair and construction of the vessel.   See Conner v. Alfa Laval, Inc., 799 F.Sup. 455 (E.D.Pa.2011), and cases cited therein.

The Conner v. Alfa Laval, Inc. cases consisted of four individual plaintiffs whose respective actions had been consolidated as part of the MDL–875 litigation docket, which is the federal asbestos docket established to adjudicate claims arising out of asbestos exposure.  Conner v. Alfa Laval, Inc., supra, 799 F.Sup. 455.   The plaintiffs claimed injuries resulting from exposure to asbestos-containing products while serving in the United States Navy. The defendants moved for summary judgment, arguing that federal maritime law applied to resolve their pending motions.   The court concluded that the maritime law jurisdiction test mandated the court to apply maritime law to sea-based Navy workers whose claims arose from exposure to an allegedly defective product produced for use on a vessel.   Conversely, the court observed that maritime law would not apply when the asbestos claims arose from Navy work that was predominantly land-based, even if the allegedly defective product was produced for use on a vessel.   The court found that three of the four plaintiffs had presented sufficient evidence to demonstrate that they had performed their Navy service at sea while aboard Navy vessels.   Accordingly, the court determined that the locality test was met.

With respect to the connection test, the court first analyzed whether the plaintiffs' exposure to the defendants' allegedly defective products on or around Navy ships constituted a possible disruptive impact on maritime commerce.   The court determined that the exposure of three of the four injured plaintiffs constituted “a potentially disruptive impact on maritime commerce.”  Conner v. Alfa Laval, Inc., supra, 799 F.Sup. 468.   It observed that these plaintiffs served aboard Navy vessels that routinely sailed and docked on navigable waters.   In addition, their respective jobs entailed maintaining equipment integral to the functioning of the ships upon which they served.   For example, the complaint brought on behalf of the decedent, Robert Conner, alleged that he had contracted mesothelioma caused by asbestos exposure while he was maintaining equipment in the engine room such as pumps, gaskets and valves.   Similarly, a complaint brought on behalf of another decedent, James H. Prange, claimed asbestos exposure from maintaining and repairing ships' boilers.   James Stone, a third plaintiff, alleged that he contracted mesothelioma from exposure to asbestos-containing products while serving as a Navy boiler tender and while working on the piping, valves, pumps, turbines and reduction gears associated with propulsion generators.   The court found that exposure to defective products could slow or frustrate work being performed on a vessel and could create unsafe working conditions that would result in labor shortages on board due to injuries sustained aboard the ship.   The court then proceeded to the second prong of the connection test, whether the defendants' “activity” giving rise to the alleged exposure demonstrated a substantial relationship to traditional maritime activity.   It defined the “activity” in these cases as “the manufacture of products for use on vessels.”  Conner v. Alfa Laval, Inc., supra, 799 F.Sup. 469.   It determined that the products manufactured in the Conner cases (turbines, pumps, purifiers, generators, boilers, valves, gaskets, packing and steam traps), “were essential for the proper functioning of ships and made for that purpose.   The Court therefore concludes that their allegedly defective production bears a substantial relationship to traditional maritime activity.”  Id.

Similarly, in the present case, this court is satisfied that the connection test has been met.   The plaintiffs allege that the decedent contracted asbestos-related mesothelioma and other asbestos-related pathologies through his exposure to the defendants' products while he worked as a merchant marine during the years 1944 through 1979 and as a boiler inspector during the 1950s.   The decedent's exposure to the defendants' products constitutes the same potential disruptive impact on maritime commerce as the court recognized in the Conner v. Alfa Laval, Inc. decision.   Exposure to the defendants' allegedly defective products could slow down work performance on merchant marine vessels, create unsafe working conditions and establish labor shortages due to the injuries sustained aboard such ships.   Further, the defendants' activity demonstrates a substantial relationship to traditional maritime activity because the defendants' products (such as purifiers, steam traps, gaskets, valves, boiler gauges, chem feeders, vacuum pumps, turbines, feed pumps, manifolds, strainers, and scupper valves), are essential for the proper functioning of ships and were manufactured for such a purpose.

III

CONCLUSION

For the reasons set for above, the court grants the above-captioned defendants' Motions for Determination of Choice of Law to the extent those defendants seek the application of federal maritime law to resolve their motions for summary judgment.⁴

BELLIS, J.

FOOTNOTES

FN1. Originally, count five had been directed against A.L. Burbank & Company, Ltd., A.L. Burbank (Operations), Ltd., A.L. Burbank (Shipbuilders) Ltd. and Waterman Steamship Corporation (collectively the A.L. Burbank defendants).   Ultimately, the plaintiffs withdrew their action as to the A.L. Burbank defendants.   On June 6, 2013, the plaintiffs filed a motion to cite in Shipcentral, Ltd., individually and as a successor to A.L. Burbank, and they filed a sixth amended complaint to reflect that amendment.   Accordingly, the allegations in count five are directed solely toward the cited-in defendant, Shipcentral, Ltd..  FN1. Originally, count five had been directed against A.L. Burbank & Company, Ltd., A.L. Burbank (Operations), Ltd., A.L. Burbank (Shipbuilders) Ltd. and Waterman Steamship Corporation (collectively the A.L. Burbank defendants).   Ultimately, the plaintiffs withdrew their action as to the A.L. Burbank defendants.   On June 6, 2013, the plaintiffs filed a motion to cite in Shipcentral, Ltd., individually and as a successor to A.L. Burbank, and they filed a sixth amended complaint to reflect that amendment.   Accordingly, the allegations in count five are directed solely toward the cited-in defendant, Shipcentral, Ltd.

FN2. Several codefendants have filed motions to adopt former defendant Aurora Pump Company's motion for a determination of choice of law.   This court rendered a decision upon Aurora Pump's motion on November 2, 2012.   See Hammer v. A.L. Burbank & Co., Ltd., Superior Court, judicial district of Fairfield, Docket No. CV 09 5026285 (November 2, 2012, Bellis, J.).   Pursuant to the various codefendants' motions to adopt, this court will attribute Aurora Pump's arguments to them as if they had advanced Aurora Pump's arguments in the first instance.   In addition, defendants Armstrong International, Inc. and Cleaver–Brooks, Inc. have subsumed their choice of law arguments within their motions for summary judgment.   Therefore, at this stage of the proceedings, the court will treat their respective motions for summary judgment as motions for choice of law..  FN2. Several codefendants have filed motions to adopt former defendant Aurora Pump Company's motion for a determination of choice of law.   This court rendered a decision upon Aurora Pump's motion on November 2, 2012.   See Hammer v. A.L. Burbank & Co., Ltd., Superior Court, judicial district of Fairfield, Docket No. CV 09 5026285 (November 2, 2012, Bellis, J.).   Pursuant to the various codefendants' motions to adopt, this court will attribute Aurora Pump's arguments to them as if they had advanced Aurora Pump's arguments in the first instance.   In addition, defendants Armstrong International, Inc. and Cleaver–Brooks, Inc. have subsumed their choice of law arguments within their motions for summary judgment.   Therefore, at this stage of the proceedings, the court will treat their respective motions for summary judgment as motions for choice of law.

FN3. “The terms ‘admiralty’ [law] and ‘maritime’ law are virtually synonymous.”   Black's Law Dictionary (6th Ed.1990)..  FN3. “The terms ‘admiralty’ [law] and ‘maritime’ law are virtually synonymous.”   Black's Law Dictionary (6th Ed.1990).

FN4. The court is aware, however, that maritime law does not necessarily differ from state law with respect to every issue.   The United States Supreme Court has explained that “[d]rawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules.”  East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S 858, 864–65, S.Ct. 2295, 90 L.Ed. 865 (1986)..  FN4. The court is aware, however, that maritime law does not necessarily differ from state law with respect to every issue.   The United States Supreme Court has explained that “[d]rawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules.”  East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S 858, 864–65, S.Ct. 2295, 90 L.Ed. 865 (1986).

Bellis, Barbara N., J.