Trial Court: San Francisco County Superior Court Trial Judge: Honorable Quentin L. Kopp (San Francisco County Super. Ct. No. CGC-07-274148)
The opinion of the court was delivered by: Sepulveda, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
This appeal arises from the asbestos-related injuries sustained by plaintiff Alan Bartholomew, a ship repair worker employed by West Winds, Inc. (West Winds), while working on various ships owned by defendant SeaRiver Maritime, Inc. (SeaRiver). Bartholomew brought suit against SeaRiver as a vessel owner under the Longshore and Harbor Workers' Compensation Act (33 U.S.C. § 901, et seq. (LHWCA or Act)). SeaRiver moved for summary judgment, which the trial court granted. Finding no triable issue of material fact that SeaRiver breached a duty owed to Bartholomew, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
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*fn2 vessel where he performed work. He testified that although he had known the names of the Exxon vessels that he had worked on while employed by West Winds, he could not recall the specific names "at [that] time." He was able to recall, however, that he had worked on "around ten" Exxon vessels while at West Winds.
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 as ships on which he worked. Bartholomew also "reserve[d] the right to amend [his] response, should [he] at a later point recall further what ships he worked on."
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 in 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 (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 and underlining omitted) contractors (in the case of actual harmful conditions) and contractors of "reasonable 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 (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 (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 asbestos. It was well-known in the maritime industry, in the 1970's, that asbestos-containing thermal insulation and other materials were sometimes present aboard vessels. It was not necessary to inform any shipyard contractor, which was in the business of installing thermal insulation and other materials aboard vessels, that asbestos might be present or that preventative measures might be necessary to prevent asbestos exposure since they were the repair experts. In [his] experience, the shipyards, by no later than the late 1970's, were aware of asbestos and the regulations regarding asbestos. When SeaRiver turned over its vessels to shipyards, it did so with the understanding that the shipyard contractors would anticipate the presence of asbestos and could work around it safely, using recommended [safety] precautions. . . ."
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., Safety Engineering, The Very Least an Employer Should Know about Dust and Fume Diseases (Nov. 1931).) 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 1937" the "health hazards associated with occupational exposure to asbestos" were known, and the "specific methods and steps to prevent asbestos-related injuries to exposed workers" were also known.
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 1960s and 1970s, 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 pipecovering . . . and other insulation materials on these ships." Based on his training and experience, he opined that "asbestos-containing materials, including pipecovering insulation, were installed on oil tanker ships constructed prior to 1974." He gave the opinion that, given the completion date of the EXXON BATON ROUGE and the EXXON GALVESTON in 1970, "asbestos-containing materials, including pipecovering insulation, were used in the construction" of these ships.
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 re-suspension of settled fibers, adding that "[v]arious writings, textbooks and publications on industrial hygiene and asbestos dust exposure dating as early as 1930, have discussed the properties of asbestos dust and the concept of re-entrainment."
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., Safety Engineering, The Very Least an Employer Should Know about Dust and Fume Diseases, supra.) Given this information and his expertise and experience regarding the ...