ACKERMAN, District Judge.
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 significant nexus to traditional maritime activities. I agree with the Ninth Circuit's conclusion and do not find the nature of plaintiff's decedent's work sufficiently maritime in character to establish admiralty jurisdiction.
Plaintiff argues that the second factor of the Edynak test is satisfied simply because her decedent worked on ships. Defendant maintains that this fact alone is insufficient to give the decedent's job the requisite maritime flavor as only the vehicle and not the instrumentalities involved are maritime. Again defendant places reliance on Owens which states: "While ships were obviously involved here, the tools and safety equipment (or lack thereof) present in the installation and clean-up of asbestos -- unlike the navigational equipment and safety devices of a vessel -- possess few maritime attributes." 698 F.2d at 971. See also, Keene Corp. v. U.S., 700 F.2d 836, 844 (2d Cir. 1983), (holding admiralty jurisdiction not proper over indemnity suit by asbestos manufacturer against the United States government). The logic of the Owens decision is persuasive. The mere fact that plaintiff's decedent worked on a ship is not sufficient to invoke admiralty jurisdiction.
I turn now to the third factor set out in Edynak, a consideration of the causation and type of injury alleged. Plaintiff claims that Mr. Zelaskowski died as a result of exposure to asbestos products used to insulate ships. Plaintiff maintains that such insulation is essential to a ship's performance of its maritime role and therefore plaintiff's claims bear an important relationship to maritime activity. Defendant disagrees citing the findings made by Owens in this connection:
The nature of the injury, an asbestos-related disease, and its causation, the unprotected inhalation of asbestos fibers, bear little maritime connection. Both the injury and its cause are far more closely affiliated with the clearly land-based negligence arising in the construction industry generally than with negligence taking place in commerce and navigation on the navigable waters.
698 F.2d at 971. I agree and I find that the nature of the injury alleged here is not maritime in essence.
Finally, I turn to examine the relationship of plaintiff's claims to traditional admiralty law concepts. While plaintiff submits that admiralty law's concern for the safety of shipyard workers is sufficient to establish admiralty jurisdiction in the instant case, defendant submits that plaintiff's claims are not traditionally associated with the role of admiralty law.
In this regard, Owens focused on the historic distinction between contracts for ship repairs which have traditionally been considered maritime and contracts for new ship construction which have been considered non-maritime. See The Schooner "Francis McDonald," 254 U.S. 242, 244-45, 41 S. Ct. 65, 65 L. Ed. 245 (1920), North Pacific Steamship Co. v. Hall Brothers Co., 249 U.S. 119, 128, 39 S. Ct. 221, 63 L. Ed. 510 (1919).
Accordingly, that Court determined that plaintiff's work involving solely new ship construction was a non-maritime activity. Conversely, the Ninth Circuit recently held admiralty jurisdiction applicable to claims of a marine pipefitter involving ship repair and renovation. Myrhan v. J.M. Corp., No. C 81-540 T (W.D.Wash. 1982), summary reversal denied No. 82-3360 et al. (9th Cir. 1983).
Application of that analysis to the instant case, in which plaintiff's claims involve ship repair, would dictate a conclusion that admiralty jurisdiction is proper. However, I do not find that distinction determinative here. While the Owens court endorsed this traditional allocation of admiralty jurisdiction over ship-related contracts as a factor to be considered, it nonetheless indicated its reluctance to apply admiralty jurisdiction in cases such as this, expressly rejecting the White court's conclusion that claims involving both ship repairs and construction were significantly related to traditional maritime concern. Moreover, plaintiff concedes that this approach is untenable, relying on Weinstein v. Eastern Airlines, Inc., 316 F.2d 758, 766 (3d Cir. 1963), which determined that the test for establishing admiralty jurisdiction over contract disputes is different from that applicable to tort claims.
The Austin court similarly rejected this distinction and determined that injuries to shipyard workers are not a traditional concern of admiralty law stating:
If the reason for admiralty's special concern for the care and safety of seamen is that they are exposed to the peculiar hazards of the sea and a vessel's equipment, then the dangers faced by a shipyard worker installing asbestos insulation are scarcely traditional concerns of admiralty or is there any reason to expect an admiralty court to possess expertise in addressing those dangers.