Lead Opinion
C. A. 1st Cir. Certiorari denied.
Dissenting Opinion
dissenting.
In No. 85-1246, petitioner, an asbestos manufacturer, is the defendant in a products liability suit brought by the widow of a deceased employee of respondent Bath Iron Works’ shipyard. Petitioner sought contribution from respondent on various theories, including a claim under § 5(b) of the Longshoremen’s and Harbor Workers’ Compensation Act, 86 Stat. 1263, 33 U. S. C. § 905(b). The United States Court of Appeals for the First Circuit held that § 5(b) covers only those torts that are within the reach of admiralty jurisdiction as defined in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U. S. 249 (1972). Drake v. Raymark Industries, Inc., 772 F. 2d 1007 (1985). The First Circuit concluded that ship construction does not satisfy the “maritime nexus” test of Executive Jet. As the First Circuit realized, its interpretation of the scope of § 5(b) conflicts with the decision in Hall v. Hvide Hull No. 3, 746 F. 2d 294 (CA5 1984), which holds that employees covered by the LHWCA who sue under § 5(b) need not satisfy the “maritime nexus” test of Executive Jet so long as the underlying event took place on a ship on navigable water.
In Nos. 85-1253 and 85-1288, which involve third-party claims by asbestos manufacturers against the United States as vessel owner and shipyard employer, the First Circuit followed its holding in Drake, supra, regarding the scope of §5(b). In re All Maine Asbestos Litigation (PNS Cases), 772 F. 2d 1023 (1985).
I would grant certiorari to resolve the conflict presented in these cases.