Fifth Circuit quickly tying up loose ends left by the Bartel decision regarding removal of unseaworthiness claims under the federal officer removal statute
Fifth Circuit quickly tying up loose ends left by the Bartel decision regarding removal of unseaworthiness claims under the federal officer removal statute
By: Helen Burnett
Defendant appeals a district court decision dismissing the removal of plaintiff’s suit under the federal officer removal statute. Plaintiff was a shipyard employee at defendant’s shipyard between 1948-1996. The Navy contracted defendant to build vessels for the Navy and Coast Guard. Plaintiff assisted in vessel construction as a painter-blaster and in general labor clean-up tasks and later contracted mesothelioma as a result of exposure to asbestos in the building materials. In state court, in addition to strict liability claims, plaintiff alleged that the defendant failed to warn, make reasonable safety precautions, and to use non-asbestos products when constructing the vessels.Because the Navy instructed defendants to abide by various safety and specific construction guidelines, the shipyard contended that the Navy had heavy oversight instructing defendants in the building processes and adoption of safety policies. In denying the removal, the District Court found that defendants could have followed Navy guidelines and upheld the state duty of care and duty to warn plaintiff of the dangers of asbestos in addition to adopting procedures to reduce exposure.The Fifth Circuit agreed with the District Court, relying on its recent Bartel decision in which it held that state negligence claims were not removable under the federal officer removal statute when they involved government instructed use of asbestos in which defendant companies could have warned employees and taken measures to decrease exposure to the asbestos. However, the Bartel court was not given the opportunity to address the removal of the strict liability claims raised in this case.The court assessed removal of the strict liability claims that the mere use of asbestos in the ship yard gave rise to plaintiff’s injuries. Although strict liability was abolished in Louisiana in 1996, the court noted that the plaintiff’s exposure to the asbestos was before 1996. The court concluded that defendants had no discretion on whether or not to use asbestos in the building of the ships; they relied on direct orders from the Navy. The court drew an identical comparison to the Supreme Court decision in Winters, which “recognized that strict liability claims support federal officer removal when the government obligates that the defendant use the allegedly defective product that causes the plaintiff’s harm.”The appellate court found that the district court erred in concluding that defendants did not meet the causal requirement for federal officer removal of the strict liability claims. The court remanded the remaining inquiry for removal under the federal officer removal statute of whether defendants had a colorable federal defense.
