This appeal arises from the asbestos-related injuries sustained by plaintiff Alan Bartholomew, a ship repair worker employed by
Between 1977 and 1980, Bartholomew worked as a marine machinist at West Winds, a ship repair company located in San Francisco. During his employment, he worked on the maintenance and repair of numerous ships owned by SeaRiver. In particular, he performed repair work on pumps, valves, turbines, compressors, and other equipment on the ships. The areas in which Bartholomew worked on the ships—engine rooms, boiler rooms, and machinery spaces—contained numerous pipes covered with insulation. Bartholomew was diagnosed with asbestosis in or about October 2006. He contends that his condition results from exposure to asbestos-containing products while working aboard SeaRiver's vessels, as well as from airborne asbestos fibers on those ships.
On April 4, 2007, Bartholomew filed a complaint seeking damages for his asbestos exposure against numerous defendants, including SeaRiver. He claimed that SeaRiver was liable for vessel owner negligence under the LHWCA.
At the time of Bartholomew's deposition, which was taken on April 10, 2008, he was unable to name a single SeaRiver (or Exxon
Subsequently, in response to written discovery propounded by SeaRiver, Bartholomew reiterated that he was unable to name a specific SeaRiver vessel. Then, in October 2008, as part of his supplemental interrogatory responses, Bartholomew identified the Exxon Hawaii and the Exxon Valdez
Following subsequent discovery, in which no additional SeaRiver vessels were identified by Bartholomew, SeaRiver moved for summary judgment on the grounds that (1) SeaRiver did not own or operate a vessel called Exxon Hawaii, and thus it could not be liable for anything that occurred on that vessel; (2) Bartholomew could not have been aboard the Exxon Valdez from 1977 to 1980 because she had not yet been constructed, and, in any event, was asbestos free in her subsequent construction; and (3) Bartholomew could not obtain evidence of any breach of duty under the LHWCA, as articulated in Scindia Steam Navigation Co. v. De Los Santos (1981) 451 U.S. 156 [68 L.Ed.2d 1, 101 S.Ct. 1614] (Scindia), which provides that a vessel owner's duty encompasses elimination of an unsafe condition or warning of such condition only insofar as necessary to render the work safe for "expert and experienced" (boldface & underscoring omitted) contractors (in the case of actual harmful conditions) and contractors of "reasonabl[e] competence" (in the case of latent hazards). (Scindia, supra, 451 U.S. at pp. 166-167.)
SeaRiver's separate statement of facts referred to, among other things, the legal presumption that a ship repair contractor is both an expert and experienced, and as such the shipowner is entitled to rely on the contractor's judgment in deciding whether an obvious hazard can be negotiated in a safe manner. (See Howlett v. Birkdale Shipping Co. (1994) 512 U.S. 92, 105 [129 L.Ed.2d 78, 114 S.Ct. 2057] (Howlett); Randolph v. Laeisz (5th Cir. 1990) 896 F.2d 964, 971, citing Scindia, supra, 451 U.S. at pp. 175-176.) Additionally, SeaRiver referred to the fact that since 1971 shipyard employers have been required by the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.; OSHA) to know about the potential hazards of asbestos and to protect their workers accordingly. (See 36 Fed.Reg. 10466 (May 29, 1971); Civ. Code, § 3548.)
SeaRiver's separate statement referred to a declaration submitted by John Tompkins, current president of Tompkins Marine Services and former SeaRiver employee. Tompkins worked as the acting fleet operations manager for several SeaRiver vessels from 1976 to 1985, and as an operations representative for new ship design and construction from 1982 to 1985; Tompkins held a number of different positions at SeaRiver from 1985 to 2000. In his declaration, Tompkins averred that at all times relevant to Bartholomew's claims, "it was SeaRiver's custom and practice to turn over vessels in a safe condition, with the understanding that an experienced and skilled shipyard contractor and personnel could anticipate hazards associated with products or materials commonly present aboard vessels, including
SeaRiver's separate statement also referred to several declarations submitted by a different plaintiff in another asbestos case against SeaRiver, which were entirely consistent with Tompkins's declaration that use of asbestos on merchant ships was a commonly known fact. For example, in his declaration, well-known "asbestos consultant" Charles Ay opined that, based on his background, training, and experience, "asbestos-containing materials, including pipecovering insulation, were installed on oil tanker ships constructed prior to 1974." Ay further explained that he based his opinion, in part, on his experience as an insulator on Navy cargo and other ships that were similar to SeaRiver's ships.
Similarly, industrial hygienist Kenneth Cohen opined in his declaration that "[p]ipecovering insulation used on steam and hot water pipes on oil tankers contained asbestos through at least the early 1970s."
Additionally, according to Richard Cohen, M.D., a "`state of the art'" expert, "the need for safety precautions, including use of worker respiratory protection to prevent asbestos-related diseases was well described in literature prior to 1949...." Dr. Cohen referred to a report generated by the chief safety inspector for Standard Oil Company of New Jersey, which discussed "the health hazards associated with occupational exposure to asbestos, and the need for safety precautions to protect workers from asbestos dust, including the use of masks, respirators and wet-down procedures to prevent asbestos-related disease." (Bonsib, Roy A., Dust Producing Operations in the Production of Petroleum Products and Associated Activities (July 1937).) Dr. Cohen also referenced an article in which the author opined that "breathing of dust under the following conditions is seriously harmful: ... [¶] ... [¶] Asbestos and every operation in which it is used." (Willson, Frederick, M.D., The Very Least an Employer Should Know about Dust and Fume Diseases (Nov. 1931) Safety Engineering, p. 318.) Based on this information and his expertise and experience regarding the historical state of the art of the hazards of asbestos exposure, Dr. Cohen opined that "by at least
In opposition, Bartholomew did not contest the motion as to the Exxon Hawaii or the Exxon Valdez. Rather, he claimed a refreshed recollection of working on two different ships, the Exxon Baton Rouge and the Exxon Galveston. In support of his opposition, Bartholomew submitted four declarations.
In the first declaration, Bartholomew himself averred that although initially he could not recall the specific names of the Exxon oil tankers on which he performed overhaul and repair work, since his deposition his attorneys had provided him with "vessel status" cards regarding the Exxon oil tankers that "refreshed" his recollection after reviewing them. Bartholomew recalled working on the Exxon Baton Rouge and the Exxon Galveston while employed at West Winds between 1977 and 1980. He stated that he worked in various locations on these ships, including the engine rooms, boiler rooms, and machinery spaces. Prior to performing any work in these areas, Bartholomew explained that he would conduct a "pre-overhaul `walk through,'" during which he saw "numerous valves, pumps, and pipes, including steam pipes." He observed that the "pipes were covered with insulation" that was an "off-white ... color," with a "chalky texture." He said he also recalled that the "pipecovering looked old," explaining that some of it was "cracked or torn," and some "had holes in it." He averred that he observed the "deteriorated pipecovering" before any "disturbance or removal of the pipecovering by insulators or other trades." Bartholomew stated that during his work on the Exxon Baton Rouge and the Exxon Galveston, which included removal of the "old and deteriorated pipecovering insulation," he worked in "close proximity to various trades, including insulators, machinists, welders, electricians, riggers, and laborers." He recalled that these trades "also disturbed and removed pipecovering insulation," which "created large amounts of visible dust from the pipecovering" in his presence. He averred that he was "exposed to this dust."
A second opposing declaration was that of "asbestos consultant" Charles Ay, who had worked for approximately 20 years as an insulator at Long Beach Naval Shipyard. Ay stated that as a shipyard insulator during the 1960's and 1970's, he "removed and installed asbestos-containing pipecovering and block insulation, cements and cloth materials on steamlines and other equipment in the engine rooms and boiler rooms of ships." Ay averred that, based on his work at the shipyard, he was "familiar with the various trades that work on ships, and their duties, including marine machinists" and was well familiar with the "construction of oil tanker ships, and the use of
Ay further stated that he had reviewed Bartholomew's declaration. Given this information and based upon his experience as a shipyard insulator, he opined that "pipecovering insulation materials in the engine rooms, boiler rooms, and machinery spaces" in the Exxon Baton Rouge and the Exxon Galveston "were shedding asbestos fibers and dust in these compartments between the initial operation of the ships, and the late 1970s ... simply due to the routine operation of the ships." Ay further stated that this "asbestos contamination" was present in the Exxon Baton Rouge and the Exxon Galveston "prior to the vessels being turned over to West Winds, and prior to any pre-overhaul inspection work" by Bartholomew from 1977 to 1980. Based on this information, Ay opined that Bartholomew was exposed to asbestos "during the performance of his pre-overhaul inspection work on the ships, which occurred prior to any disturbance or removal of the insulation by insulators or other trades."
Bartholomew's third opposing declaration was that of industrial hygienist Kenneth Cohen, who averred he had been "often called upon to evaluate toxic exposures (including asbestos)." He stated he had "extensive experience consulting on workplace exposure levels and abatement procedures ... including on board ships," and that he had "conducted research" on numerous asbestos-containing products, "including pipecovering and block insulation," and that he had "studied how asbestos is released into the air from these products, and how it behaves in the air once released." Cohen averred that he had tested "`mothballed'" vessels and found "airborne asbestos" levels presenting a "significant hazard" to individuals on the vessel, which he opined "would have been higher" during general operation or repair work.
Cohen further stated that "numerous reports in the scientific literature of asbestos air sampling from ships, including sampling on ... repair and maintenance activities" indicated that asbestos fibers once released "continue to contaminate the area of initial release, and will migrate away from the source, thereby contaminating remote areas." Cohen discussed the concept of "re-entrainment," a term used to describe the "continuous movement of asbestos fiber from a settled state on surfaces to an airborne state." He referred to a number of specific studies in support of this concept of resuspension of settled fibers, adding that "[v]arious writings, textbooks and
Cohen stated he had reviewed the above mentioned declarations of Bartholomew and Ay. Given this information, and his experience and expertise, he opined that Bartholomew "was exposed to hazardous levels of respirable asbestos fiber and dust while working on board" the Exxon Baton Rouge and the Exxon Galveston "during his pre-overhaul inspection work on these ships between ... 1977-1980 [while] at West Winds." He offered his opinion that loose asbestos fibers and dust, which would have been generated by the initial insulation and by any subsequent disturbance or removal of that insulation would have remained in the "engine rooms, boiler rooms and machinery spaces of the ships for a long period of time, absent stringent abatement procedures," and this "asbestos contamination" created an "unsafe condition which was present prior to, and at the time" Bartholomew boarded the ships. Given this information, Cohen was of the opinion that Bartholomew was exposed to a "hazardous and unsafe level of asbestos during his pre-overhaul work, which occurred prior to the disturbance or removal of pipecovering by insulators and other trades during overhaul and repair work."
Bartholomew's final opposing declaration was that of "`state of the art'" expert Dr. Cohen who stated that "[a] review of the historic medical and scientific literature shows that as early as the 1930s" it was known that "the breathing of asbestos dust in the workplace was harmful and dangerous to worker health." As in the declaration submitted by SeaRiver in support of summary judgment, in this declaration Dr. Cohen referred to the same 1937 report, discussing "the health hazards associated with occupational exposure to asbestos, and the need for safety precautions to protect workers from asbestos dust, including the use of masks, respirators and wet-down procedures to prevent asbestos-related disease." Dr. Cohen also referenced the 1931 article in which the author opined that "breathing of dust under the following conditions is seriously harmful: ... [¶] ... [¶] Asbestos and every operation in which it is used." (Willson, Frederick, M.D., The Very Least an Employer Should Know about Dust and Fume Diseases, supra, Safety Engineering, at p. 318.) Given this information and his expertise and experience regarding the historical state of the art of the hazards of asbestos exposure, Dr. Cohen opined that, "by at least 1937," the "health hazards associated with occupational exposure to asbestos," were known as well as "specific methods and steps to prevent asbestos-related injuries to exposed workers."
Bartholomew's argument in opposition to SeaRiver's motion was that his opposing declarations were sufficient to raise a triable issue of material fact
In its reply papers, SeaRiver claimed that Bartholomew's declaration, identifying the Exxon Baton Rouge and the Exxon Galveston, purported to impeach his prior deposition testimony and/or interrogatory responses, which did not reference the names of these vessels. SeaRiver argued the court should give Bartholomew's deposition testimony more credibility and disregard the contradictory statements in his subsequent declaration. SeaRiver further argued that even if the court considered Bartholomew's declaration, this evidence failed to raise any triable issues of fact because it did not rebut the presumption that West Winds, as Bartholomew's employer, complied with OSHA regulations dealing with asbestos and was, therefore, aware of asbestos hazards aboard vessels by 1977.
SeaRiver reasserted that Bartholomew's supporting declarations by Ay, Cohen, and Dr. Cohen were consistent with the presumption that West Winds was presumed to be an expert and charged with the knowledge of what was known and knowable of asbestos hazards. SeaRiver additionally objected to the declarations of Ay and Kenneth Cohen. Its position was that neither Ay nor Cohen had demonstrated any personal knowledge regarding the composition of the insulation material aboard the SeaRiver vessels, and hence no foundation had been laid to demonstrate that the Exxon Baton Rouge and the Exxon Galveston actually contained asbestos.
Following a hearing on April 10, 2009, the trial court granted SeaRiver's motion for summary judgment. In granting the motion, the court struck the portions of Bartholomew's declaration stating that he had worked aboard the Exxon Baton Rouge and the Exxon Galveston, on the ground that these statements constituted an improper impeachment of Bartholomew's previous interrogatory responses. Substantively, the court's order, in effect, accepted SeaRiver's argument that there were no triable issues of fact because West Winds was presumed to be an expert and experienced ship repair contractor.
The ensuing judgment in SeaRiver's favor was filed on November 2, 2009. The instant appeal followed.
A., B.
Bartholomew argues that the record discloses a genuine issue of material fact regarding whether SeaRiver breached its turnover duties, because, at the time of turnover, certain ships were contaminated with deteriorating asbestos-containing pipe insulation and airborne asbestos fibers. He contends that the trial court "failed to properly distinguish" between its ruling that his employer, West Winds, should be presumed "`an expert and experienced'"
According to Bartholomew, the "correct and relevant questions ... are not whether West Winds was an `expert and experienced' repair yard, or whether SeaRiver is entitled to rely" on this presumption. Rather, Bartholomew asserts that the "requisite questions of fact" are as follows: "1) Was the presence of asbestos fibers a latent and hidden danger? [¶] 2) Was the deteriorating condition of the asbestos-containing pipe insulation a latent and hidden danger prior to the `walk-through' by plaintiff? [¶] 3) Should West Winds have anticipated the deteriorating insulation was asbestos-containing, even though all ships did not have asbestos-containing pipe insulation? [¶] 4) What did an experienced shipyard know about the dangers of asbestos in 1977? (A question that cannot be decided as a matter of law.) [¶] 5) Did SeaRiver have a duty to warn West Winds that its ships had deteriorating asbestos-containing insulation prior to plaintiff being exposed to invisible asbestos fibers? [¶] 6) Was the presence of invisible and ambient asbestos fibers an unreasonably dangerous condition even to an experienced shipyard?"
In other words, any "obvious" hazard must not "present[] an unreasonably dangerous work environment to experienced [contractors] exercising reasonable care." (Martinez v. Korea Shipping Corp., Ltd., supra, 903 F.2d at p. 610.) While recognizing that reasonableness is ordinarily a factual inquiry (id. at p. 609), this general conclusion does not in and of itself end the analysis. (See Bjaranson, supra, 873 F.2d at p. 1208.) Thus, Bartholomew's list of purported "requisite" fact questions notwithstanding, more is required. (Ibid.) Namely, Bartholomew was required to introduce evidence raising a triable issue of material fact that the presence of asbestos-containing pipe insulation and airborne asbestos fibers aboard the SeaRiver vessels were such that an "expert and experienced" contractor would not "be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property." (Scindia, supra, 451 U.S. at p. 167; see Bjaranson, supra, at p. 1208.)
Bartholomew asserts that the "law requires more than just presuming that there is an expert and experienced repair yard." (Boldface omitted.) We have no quarrel with the notion that what a stevedore or repair yard knew or should have known under the circumstances often involves questions of fact. However, contrary to Bartholomew's assertion, the "correct and relevant" question is whether West Winds, as an expert and experienced ship repair contractor, would reasonably expect asbestos-containing products and/or airborne asbestos fibers to be aboard the types of vessels that it serviced. (Scindia, supra, 451 U.S. at p. 167; Howlett, supra, 512 U.S. at p. 98.) The cases cited by Bartholomew do nothing to challenge this well-established presumption. (See, e.g., Manuel v. Cameron Offshore Boats, Inc. (5th Cir. 1997) 103 F.3d 31, 33 [negligence and causation are findings of fact; existence of duty is question of law]; Keller v. U.S. (1st Cir. 1994) 38 F.3d 16, 33-34 [judgment affirmed where expert and experienced stevedore could have avoided ladder hazard].)
The cases Bartholomew relies on for the general proposition that negligence in maritime cases is a question of fact do not compel a contrary
These cases, and the others cited by Bartholomew, involve situations in which reasonable fact finders may differ on whether a particular hazard creates an unreasonably dangerous work environment. (See e.g., Cook v. Exxon Shipping Co., supra, 762 F.2d at pp. 750, 753 [summary judgment reversed where triable issues of fact existed as to whether owner failed to warn of hidden bunker fuel tank and whether owner actively involved itself in repair operations]; O'Hara v. Weeks Marine, Inc. (2d Cir. 2002) 294 F.3d 55, 65-67 [summary judgment reversed, "[d]espite ... scant evidence," where fact issues existed regarding whether general contractor breached its duty to intervene and its active control duty]; Moore v. M.P. Howlett, Inc. (2d Cir. 1983) 704 F.2d 39, 42 [shipowner not relieved of liability as a matter of law because relied on stevedore's judgment to proceed with work in spite of dangerous condition].)
Here, rather than establishing a triable issue of material fact as to whether asbestos-containing pipe insulation and/or airborne asbestos fibers constituted an "unreasonably dangerous" hazard, the evidence supports the conclusion that by 1977, an expert and experienced ship repair contractor should have reasonably expected to encounter asbestos aboard the vessels it repaired, and, as a consequence, should have been mindful of the dangers of asbestos exposure, taking the necessary and required safety precautions. Accordingly, the mere presence of the alleged asbestos-containing products and airborne asbestos fibers, standing alone, cannot constitute a breach of the turnover duty of safe condition.
Although not cited by either party, Buck, supra, 154 P.3d 750, a recent appellate decision from Oregon, addressed a similar issue and affirmed summary judgment in favor of various vessel owners, including SeaRiver. There, repair workers failed to present evidence that the presence of asbestos was not known by the contractors and would not be obvious or reasonably
Bartholomew, like the plaintiffs in Buck, supra, 154 P.3d 750, has not pointed to any evidence in the record or legal authority that would support the conclusion that asbestos is not the type of hazard that an expert and experienced ship repair contractor should reasonably expect to encounter. (Id. at p. 757, fn. 6.) In the absence of a triable issue on this factual issue that is a prerequisite to establishing SeaRiver's turnover duty of safe condition, the trial court did not err in granting summary judgment.
Bartholomew also argues that triable issues of material fact exist regarding whether SeaRiver had a duty to warn West Winds that its ships had asbestos-containing insulation prior to his exposure to airborne asbestos fibers during his preoverhaul walk through.
Thus, in order to withstand summary judgment on the turnover duty to warn, Bartholomew must show the existence of an issue of material fact that there was a latent hazard on the ships at the time of turnover and that (1) SeaRiver knew or should have known of the defect, (2) the defect would likely be encountered in the course of the servicing work, and (3) the defect was not known or reasonably anticipated by West Winds. (Howlett, supra, 512 U.S. at p. 105; Buck, supra, 154 P.3d at p. 755.)
Again, Bartholomew's own evidence, indicating that the use of asbestos on ships and its health risks was known as early as the 1930's, establishes that it was not unreasonable for West Winds to anticipate the presence of asbestos on the ships that it serviced. Accordingly, the record discloses no evidence of any latent hazard for which a warning would have been required. The trial court properly granted summary judgment in favor of SeaRiver.
The judgment is affirmed. Respondent is entitled to its costs on appeal.
Ruvolo, P. J., and Rivera, J., concurred.