The opinion of the court was delivered by: ACKERMAN
In this personal injury action, plaintiff seeks to impose liability on numerous manufacturers and distributors of asbestos for injuries sustained by her decedent as a result of his exposure to asbestos during the course of his employment as a marine machinist at the New York and Philadelphia Naval Shipyards. Plaintiff asserts both diversity jurisdiction pursuant to 28 U.S.C. § 1332 and federal question jurisdiction under 28 U.S.C. § 1331. Plaintiff initially failed to specifically invoke the court's admiralty jurisdiction under 28 U.S.C. § 1333 and to allege defendants' citizenship as required to demonstrate the existence of diversity jurisdiction. Plaintiff has moved to amend her complaint to correct these deficiencies. Plaintiff additionally seeks a determination that admiralty jurisdiction is properly invoked or alternatively to delete non-diverse defendants in order to preserve and perfect diversity jurisdiction.
This motion was first heard by Magistrate Cowen and a Report and Recommendation issued on April 15, 1983, recommending dismissal of plaintiff's complaint for lack of subject matter jurisdiction as to all defendants except the Johns-Manville (JM) defendants. The Magistrate declined to recommend dismissal as to the JM defendants, concluding that the automatic stay resulting from JM's bankruptcy proceeding prevented him from exercising jurisdiction over them.
Plaintiff has filed objections to the Magistrate's report which are opposed by GAF and numerous other defendants.
This matter is presently before me to review the Magistrate's recommendation of April 15, 1983. Pursuant to 28 U.S.C. § 636(b)(1), I must make a de novo determination with respect to those portions of the Magistrate's report to which objections have been made.
Defendant points out that plaintiff's objections to the Magistrate's report were not filed within the ten day time period required by 28 U.S.C. § 636(b)(1). However, counsel for plaintiff advised the court that he was ill and I consented to an extension of time for filing objections. As defendant concedes, such late filing is permissible if the moving party adequately justifies his request for relaxation of the time constraints. Moreover, as stated by Judge Troutman in Consorcio Construction Impregilo v. Mack Trucks, 497 F. Supp. 591, 593 (E.D.Pa. 1980), "the court has the power, if not the duty, to review magistrate's rulings independently and carefully, irrespective of timely objections raised by the parties." See also, Webb v. Califano, 468 F. Supp. 825, 828 (E.D.Cal. 1979). Accordingly, I will exercise my authority to make a de novo determination in this matter.
While I agree with the Magistrate's conclusion that plaintiff's claims are not cognizable under this court's admiralty jurisdiction, I disagree with his determination that this court lacks subject matter jurisdiction and I decline to follow his recommendation of dismissal. Rather, I have concluded that plaintiff should be permitted to amend her complaint to properly invoke diversity jurisdiction.
I turn first to that part of plaintiff's motion which requests this court to exercise its inherent admiralty jurisdiction in this action.
In Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972), the Supreme Court established a two prong test for determining whether a tortious act is subject to the admiralty jurisdiction of the federal courts. That test requires first that the alleged tort occur on navigable waters and second that "the wrong bear a significant relationship to traditional maritime activity." Id. at 268. While initially limited to aviation torts, the holding of Executive Jet has been construed as applying to determinations of federal admiralty jurisdiction outside of that context. Foremost Insurance Co. v. Richardson, 457 U.S. 668, 673, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982), (applying admiralty jurisdiction to collision between two pleasure boats on navigable waters).
Plaintiff alleges that her husband worked on ships in drydock, at piers and occasionally at sea. Defendants do not dispute that these allegations satisfy the locality prong of the Executive Jet test. Thus I turn to the second prong of the test which requires me to determine whether the alleged tort arose in the course of traditional maritime activity.
In Edynak v. Atlantic Shipping Inc. Cie. Chambon, 562 F.2d 215 (3d Cir. 1977), cert. denied, 434 U.S. 1034, 54 L. Ed. 2d 781, 98 S. Ct. 767 (1978), the Third Circuit set out four factors to be considered in determining the existence of maritime activity: 1) the functions and roles of the parties, 2) the types of vehicles and instrumentalities involved, 3) the causation and the type of injury, and 4) the traditional concepts of the role of admiralty law.
Applying these same four factors to substantially identical claims against manufacturers of asbestos products, the Ninth Circuit concluded that admiralty jurisdiction was not properly invoked. Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967 (9th Cir. 1983). My examination of the Edynak factors in the instant case leads me to the same conclusion.
Plaintiff's decedent's work as a marine machinist entailed repairing and installing boilers, engines, valves, pumps and refrigeration equipment. Plaintiff argues that the first factor set out in Edynak is satisfied because the repair work performed by her decedent is essential to the maritime function of ships. Plaintiff relies on White v. Johns-Manville Corp., 662 F.2d 234, 239 (4th Cir. 1981), cert. denied 454 U.S. 1163, 71 L. Ed. 2d 319, 102 S. Ct. 1037 (1982), in which the Court determined, analyzing similar facts, that the "installation of insulation materials, which by their very nature become an appurtenance, or integral part, of the ship, is clearly essential to the maritime industry," and therefore bears a significant relationship to traditional maritime activity.
Defendant contends that Mr. Zelaskowski's duties were not maritime in character. Defendant relies primarily on Owens in which the court concluded that plaintiff's job lacked sufficient "maritime flavor" to invoke the admiralty jurisdiction of the federal courts: "Plaintiff's job, installing and cleaning up around the installation of asbestos, is hardly a distinctively maritime role, in contrast to the navigational functions of the crew of a ship engaged in ocean or river shipping." 698 F.2d at 970-71. See also, Austin v. Unarco Industries, 705 F.2d 1, 12-13 (1st Cir. 1983), (holding admiralty jurisdiction not proper over similar claims against manufacturers of asbestos). While the Owens Court agreed with the Fourth Circuit that asbestos installation is essential to the maritime industry, it nevertheless declined to adopt the White court's conclusion that plaintiff's work had a ...