Bartel v. Alcoa Steamship Co.

805 F.3d 169, 2015 WL 6211656
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 19, 2015
DocketNos. 15-30004, 15-30005, 15-30032
StatusPublished
Cited by38 cases

This text of 805 F.3d 169 (Bartel v. Alcoa Steamship Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bartel v. Alcoa Steamship Co., 805 F.3d 169, 2015 WL 6211656 (5th Cir. 2015).

Opinion

REAVLEY, Circuit Judge:

This consolidated action involves claims arising from the plaintiffs’ alleged exposure to asbestos aboard vessels operated or owned by the various defendants. We must determine whether the cases, originally filed in state court, properly belong in federal court.

Plaintiffs Silas B. Bishop, Joseph L. Dennis, and Lawrence R. Craig worked for decades as merchant mariners aboard many different vessels and for many different employers. With their respective lawsuits, each alleges that he was exposed to asbestos over the course of his service and suffered serious disease or death as a result.1 The plaintiffs sued their former employers in Louisiana state court under the Jones Act and general maritime law (unseaworthiness). They alleged that their injuries were attributable to the employers’ failure to- warn of the dangers of asbestos, to train their crews in using asbestos-containing products, and to adopt procedures for the safe installation and removal of asbestos. While all three plaintiffs served on various vessels during their careers, each of them served on at least [172]*172one United States Naval Ship. United States Naval Ships are owned by the Navy but operated by civilian contractors. Here, Navy-owned vessels aboard which the plaintiffs worked were operated by defendants Mathiasen Tanker Industry, Incorporated, American President Lines Limited, and American Overseas Marine Corporation (the “Federal Officer Defendants”).2

The defendants argue that removal was warranted under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). Under this statute, an action “against or directed to ... any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office” may be removed to federal court. 28 U.S.C. § 1442(a)(1). To qualify for removal, defendants must show that they are “persons” within the meaning of the statute, “that the defendants acted pursuant to a federal officer’s directions and that a causal nexus exists between the defendants’ actions under color of federal office and the plaintiffs claims.” Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398-400 (5th Cir.1998). Additionally, they must assert a “ ‘colorable federal defense.’ ” Id. at 400. The defendant bears the burden of making this showing, and we review the district court’s determination de novo. Id. at 397.

It is undisputed that defendants, as corporate entities, qualify as “persons” within the meaning of the Federal Officer Removal Statute. See Winters, 149 F.3d at 398. For removal to be proper, it is necessary but not sufficient for a defendant to show it “acted pursuant to a federal officer’s directions.” Winters, 149 F.3d at 398. The defendant must also show “that a causal nexus exists between the defendants’ actions under color of federal office and the plaintiffs claims.” Id.

Here, defendants argue that the Federal Officer Defendants acted pursuant to a federal authority “when they contracted with the United States Navy to operate and crew Navy ships with civilians.” (Blue at 13.) And, they argue that this same fact also establishes a causal nexus exists between the plaintiffs injuries and the defendants’ actions under color of office. To support these arguments, they provide a contract governing the relationship between the federal government and one Federal Officer Defendant, Mathiasen Tanker Industry, Incorporated. They also provide evidence that vessels operatéd by the remaining Federal Officer Defendants were Navy-owned.

The defendants’ argument collapses the inquiry from two steps to one. That is, they believe the Navy’s mere ownership and theoretical control of the vessels provides an adequate “causal nexus” between the Federal Officer Defendants’ actions and the plaintiffs’ claims. Inasmuch as the plaintiffs allege injuries arising from the intrinsic attributes of the ships, as delivered to the Federal Officer Defendants, defendants could have argued that mere [173]*173operation of the ships supplies an adequate causal nexus. That is to say, if mere operation of intrinsically dangerous (un-seaworthy) vessels caused injuries for which the Federal Officer Defendants may be liable, then that same mere operation may provide a causal nexus supporting removal. It is therefore important to understand the nature of the plaintiffs’ allegations. As mentioned already, the plaintiffs’ complaints are primarily concerned with failure to warn, failure to train, and failure to adopt procedures for the safe installation and removal of asbestos. These allegations are not concerned so much with vessel design as they are with vessel operation. At oral .argument, however, the defendants argued the plaintiffs’ allegations of unseaworthiness are broader and encompass the intrinsically unsafe nature of the vessels. We first address those claims concerned with the defendants’ acts and omissions — the “failure to warn claims.” We then turn to the claims concerned with the intrinsic dangers posed by mere operation of the vessels — the “unseaworthiness claims.”

In adopting the magistrate judge’s report and recommendation, the district court found that defendants failed to establish an adequate causal link because plaintiffs’ claims were “analogous” to “failure to warn cases” where the government owns a work space infected with asbestos and the civilian contractor operating the facility fails to warn of the danger or otherwise mitigate the risk. See Bartel v. Alcoa Steamship Co., 64 F.Supp.3d 843, 855 (M.D.La.2014) (collecting cases). In their briefing, the defendants directly attacked this reasoning, relying extensively on an unpublished 1998 magistrate judge’s ruling, Lalonde v. Delta Field Erection. See Case No. CIV.A.96-3244-B-M3, 1998 WL 34301466, at *1 (M.D.La. Aug. 6, 1998). That case, however, is distinguishable and cuts squarely against the defendants.

Like this case, Lalonde involved allegations of failure to warn, supervise, and make safe. See id. at *1. There, however:

The federal government imposed numerous safety requirements at the facility, such as the wearing of protective equipment. The United States required that safety meetings be held in each department on a monthly basis, and, in addition, required plant-wide safety meetings be held on a .monthly basis. The government dictated the topics of these meetings. In summary, [the defendant] operated a federal government-owned facility, exclusively for the government, under the oversight and ultimate control of officers of the federal government.

Id. at *3 (emphases added).

Thus, not only did the federal government own the facility, 'it exercised direct and continuing oversight of its operations, including safety briefings and practices. If there were any failure to warn in La-londe, the failure was caused by the government’s instructions.

This approach is proper. For example, in Winters,

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805 F.3d 169, 2015 WL 6211656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartel-v-alcoa-steamship-co-ca5-2015.