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In re Joint Eastern and Southern Districts Asbestos Litigation

decided: November 29, 1989; As Amended.

IN RE JOINT EASTERN AND SOUTHERN DISTRICTS ASBESTOS LITIGATION; IN THE MATTER OF SALLY ROBINSON, AS PERSONAL REPRESENTATIVE OF THE ESTATE AND BENEFICIARIES OF EDWARD ROBINSON, DECEASED, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, NICOLET, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO KEASBY & MATTISON COMPANY, CERTAINTEED CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO KEASBY & MATTISON COMPANY, KEENE CORPORATION, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO EHRET MAGNESIA MANUFACTURING CO., THE CELOTEX CORPORATION, INDIVIDUALLY AND SUCCESSOR IN INTEREST TO PHILIP CAREY MANUFACTURING COMPANY, RAYMARK INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO RAYBESTOS-MANHATTAN, INC., ARMSTRONG INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO EAGLE-PICHER COMPANY, DEFENDANTS, UNITED STATES OF AMERICA, DEFENDANT-APPELLEE



Appeal from a judgment the United States District Court for the Eastern District of New York (Sifton, Judge) which dismissed personal injury claims brought against the United States pursuant to the Suits in Admiralty Act, 46 U.S.C. App. § 741 et seq., and the War Shipping Administration Clarification Act of 1943, 50 U.S.C. App. § 1291, for lack of subject matter jurisdiction. Affirmed.

Miner and Altimari, Circuit Judges, and Robert J. Kelleher, District Judge.*fn*

Author: Altimari

In this case, we consider the court's jurisdiction to entertain a personal injury claim against the United States for damages allegedly caused by exposure to asbestos on board ships of the United States' merchant fleet during World War II. Plaintiff-appellant Sally Robinson, as representative of the estate of her late husband Edward Robinson, appeals from a judgment of the United States District Court for the Eastern District of New York (Sifton, J.) which granted the United States' motion under Fed.R.Civ.P. 12(b)(1) to dismiss for lack of subject matter jurisdiction.

Edward Robinson had been employed on merchant ships operated by the United States through the War Shipping Administration during World War II. Plaintiff asserted wrongful death claims against a number of asbestos companies and against the United States under the Suits in Admiralty Act, 46 U.S.C.App. § 741 et seq. ("SAA"), and the War Shipping Administration Clarification Act of 1943, 50 U.S.C. App. § 1291 ("Clarification Act"). The district court determined that the United States' waiver of sovereign immunity embodied in the SAA and the Clarification Act is limited by the discretionary function exception. The court further found that the complained of governmental conduct was discretionary within the meaning of the exception. Accordingly, the district court granted the government's motion to dismiss and directed entry of final judgment pursuant to Fed.R.Civ.P. 54(b) as to all claims against the United States. Suit continues, however, against the asbestos companies.

On this appeal, plaintiff contends that the district court improperly implied the discretionary function exception to the SAA and the Clarification Act. Alternatively, she argues that the government conduct here at issue is not covered by the exception. For the reasons that follow, we affirm the judgment of the district court.

BACKGROUND

"[In] order to assure the most effective utilization of the shipping of the United States for the successful prosecution of [World War II]," President Franklin D. Roosevelt established the War Shipping Administration ("WSA") by executive order on February 7, 1942. Exec. Order No. 9054, 3 C.F.R. 1086 (1938-43), reprinted in 1942 U.S.Code Cong.Serv. 154. The WSA was empowered to "[control] the operation, purchase, charter, requisition, and use of all ocean vessels under the flag or control of the United States," with certain exceptions not relevant here. Id. at 1087. As a result, "substantially our entire merchant marine became part of a single vast shipping pool, said to have been the largest in history." Hust v. Moore-McCormack Lines, Inc., 328 U.S. 707, 709, 90 L. Ed. 1534, 66 S. Ct. 1218 (1946), overruled, Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 794, 93 L. Ed. 1692, 69 S. Ct. 1317 (1949).

The WSA obtained ships either through new construction or by transfer of existing vessels from private shipping interests. Hust, 328 U.S. at 710. The transfer of vessels was effected by use of general agency agreements. Pursuant to these agreements, the vessels continued to be operated by their original owners, Gordon v. Lykes Bros. S.S. Co., 835 F.2d 96, 97 (5th Cir.), cert. denied, 488 U.S. 825, 109 S. Ct. 73, 102 L. Ed. 2d 50 (1988), "subject to the directions, orders, and regulations of the [WSA]." Note, Remedies of Merchant Seamen Injured on Government Owned Vessels, 55 Yale L.J. 584, 588 (1946).

Since the number of existing vessels was insufficient to satisfy the wartime needs of the United States, the majority of the WSA controlled fleet was obtained through new construction. See Report of the War Shipping Administrator to the President, The United States Merchant Marine at War 33 (Jan. 15, 1946). The United States' wartime shipbuilding effort was a "race between ship construction and sinkings by the enemy." Id. Thus, that "[efficient] ship construction and operation was a very high priority of the United States government during World War II," Gordon, 835 F.2d at 97, is a vast understatement.

In response to the national emergency, the United States Maritime Commission Division of Emergency Ship Construction (the "Commission") was ordered to "get results fast, even at the sacrifice of some of the painstaking procedures which were part of the usual practice." F. Lane, Ships for Victory: A History of Shipbuilding Under the U.S. Maritime Commission in World War II 78 (1951). To achieve the desired efficiency, the Commission utilized nationwide standardization of design and materials. Id. at 72. Standardized use of readily available materials ensured a steady flow from numerous suppliers to the many shipyards. See id. Moreover, as voiced by the Commission's director of building operations, the Commission took a dim view of design improvements: "'they are not only not desired, but are not to be accepted, unless it can be shown that they are essential to acceptable performance, and at the same time that they can be incorporated without prejudice to prompt procurement.'" Id. at 578.

As a consequence of the winning effort in the race between ship construction and sinkings, asbestos was used heavily in the construction of World War II merchant ships. See Gordon, 835 F.2d at 97.

Discussion

A. Applicability of the Discretionary Function Exception.

Robinson contends that the district court improperly implied the discretionary function exception to the SAA and the Clarification Act. Specifically, she contends that the waiver of sovereign immunity expressed in those acts subjects the United States to liability on the same basis as private vessel owners and the court may not ...


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