“Bare-Ly” There – Third Circuit Strips Down Bare Metal Defense in Maritime Law

Defense Digest, Vol. 24, No. 1, March 2018

By Paul C. Johnson, Esq.*

Key Points:

  • Third Circuit addresses bare metal defense in maritime law.
  • Court imposed foreseeability test of liability for bare metal product manufacturers.


Burning straw men is supposed to be easy—they are intentionally made of straw. Light a match to one “leg,” and let the flames begin. The straw man burns away with the black smoke rising from the charred embers of this year’s harvest. Rhetorically, a speaker using a “straw man” argument intentionally distorts or misrepresents an opponent’s argument in order to make it easier to refute. Make your opponent’s argument out of straw, and it can be destroyed with a single spark.

One important proviso—if the straw used to construct the “straw man” has sat piled up next to the river after a 50-year flood and has absorbed the equivalent of a tanker ship’s cargo of rain water, that straw man will not burn and will continue to scare crows, and it will continue to taunt the advocate and their position. The “straw men” set up by the Third Circuit in In Re: Asbestos Products Liability Litigation (No. VI), 873 F.3d 232 (3rd Cir. 2017) should stand as a reminder to make sure that the straw used for the straw man has spent several weeks in the summer sunshine before it faces the matchstick.

In asbestos litigation, the “bare metal defense,” as it has become known, asserts that a manufacturer should not be liable for injuries caused by an asbestos product that it did not manufacture and/or that was added later. In federal courts throughout the country, manufacturers of engines, boilers, pumps and other equipment for use aboard U.S. Navy ships have successfully asserted this defense under maritime law to avoid liability for asbestos-related injuries. In In Re: Asbestos Products Liability Litigation (No. VI), the Third Circuit identified four “established principles” of maritime law as the ostensible support to strip away most of the bare metal defense. The Third Circuit’s presentation and subsequent refutation of the arguments supporting widespread application of the bare metal defense arising out of three of the four “established principles” of maritime law, however, does not have enough heat or flame to burn away the opposing logic in support of the bare metal defense. Yet, the court concluded that its logic fully burned those straw men to the ground, leaving only one remaining principle—the protection of sailors—as the foundation for its opinion.

The Underlying Cases: DeVries and McAfee

The plaintiffs in the two asbestos lawsuits on appeal pursued claims on behalf of their deceased husbands, John DeVries and Kenneth McAfee, both of whom served in the U.S. Navy. The plaintiffs claimed that DeVries and McAfee were exposed to asbestos-containing insulation or components added on to shipboard equipment, such as boilers, pumps and engines. The manufacturers of this equipment made bare metal products but did not manufacture the asbestos-containing parts that were subsequently added.

The plaintiffs abandoned their strict liability claims in the appeal. As such, the Third Circuit only addressed the applicability of the bare metal defense in the setting of a negligence claim.

Framing the Question

The Third Circuit succinctly identified the “key question” of the case as the availability of the bare metal defense: “When, if ever, should a manufacturer of a product that does not contain asbestos be held liable for an asbestos-related injury most directly caused by parts added on to the manufacturer’s product?” Much can be discerned from the phrasing of this question. The Third Circuit communicated its ultimate conclusion in the words used to frame the “key question.” Rather than posing two questions—(1) should a manufacturer of a product that does not contain asbestos be held liable for an asbestos-related injury most directly caused by parts added on to the manufacturer’s product” and (2) if so, when?—the Third Circuit presumed the liability of the manufacturer of the bare metal product for the injury caused by the later-added parts. For the Third Circuit, it was all just a question of when. When will the bare metal product manufacturers be held liable? What must a plaintiff prove to hold the bare metal product manufacturers liable?

Split in Authority

The Third Circuit noted a split in authority among the various courts on the bare metal defense. It observed that some courts apply a “bright line rule” of non-liability for the manufacturer of the bare metal product, Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 492, 494-97 (6th Cir. 2005), while others use a “fact-specific standard” that places liability on a bare metal product manufacturer “[i]f the plaintiff’s injury was a reasonably foreseeable result of the manufacturer’s conduct.” Quirin v. Lorillard Tobacco Co., 17 F.Supp.3d 760, 768-70 (N.D.Ill. 2014).

Enter the Straw Men

Faced with these two choices, “bright-line approach versus “fact-specific” approach, the Third Circuit gratefully pointed to “established principles” of maritime law to free them from the conflicting viewpoints. The court identified four “established principles” of maritime law:

1.       Maritime law is deeply concerned with the protection of sailors, Moragne v. States Marine Lines, Inc., 398 US 375, 387 (1970);

2.       Maritime law is built on traditions of simplicity and practicality, Kermarec v. Compagnie Generale Transatlantique, 358 US 625, 631 (1959);

3.       Maritime law has a fundamental interest in the protection of maritime commerce, Exxon Corp. v. Cent. Gulf Lines, Inc., 500 US 603, 608 (1991);

4.       Maritime law seeks out uniform rules to govern conduct and liability, Foremost Insurance Co. v. Richardson, 457 US 668, 674-75 (1982).

The court needed no “straw man” for the first principle, the protection of sailors. In concluded that a fact-sensitive standard-based approach that would conceivably preserve a sailor’s claims against a potential defendant would be supported by this first principle of maritime law.

The court quickly dismissed the second principle, “traditions of simplicity and practicality,” with two sentences that merely purport to raise “two sides of the coin.” The court stated, “On one hand, ‘simplicity’ might be seen as favoring the rule-based approach, because simplicity is related to predictability, and it is easier to predict how a rule will apply than a standard.” The court also found that “[‘s]implicity’ could be seen as favoring a foreseeability-based standard, because simplicity is related to familiarity, and foreseeability is such a familiar and key part of tort law.”

The Third Circuit provided no substantive discussion of the third and fourth “established principles” of maritime law. Rather, the court merely dismissed them outright because “[t]he parties all argue these two principles encourage the court to side with whatever side is winning in the split in authority.” Rather than substantively reviewing the principles, the Third Circuit suggested that they were not going to try to determine which view was in “the majority.”

The Third Circuit’s straw men for these two principles was to ignore the substance of the “established principles” of maritime law and to simply express frustration that no majority viewpoint has risen up from the various courts. Without a majority viewpoint, the Third Circuit disregarded those “established principles” of maritime law. The court merely found it easier to rely on the principle of “protecting sailors” to significantly limit the bare metal defense.

The “simple” approach prescribed by the court requires a fact-sensitive analysis of foreseeability and at least five distinct elements. Rather than a simple and direct rule of no liability for a bare metal product manufacturer, the Third Circuit’s lengthy review process requires that:

[A] manufacturer of a bare-metal product may be held liable for a plaintiff’s injuries suffered from later-added asbestos-containing materials if the facts show the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s failure to provide a reasonable and adequate warning; and … precedents show … that a bare-metal manufacturer may be subject to liability if it reasonably could have known, at the time it placed its product into the stream of commerce, that

(1)    Asbestos is hazardous, and

(2)    Its product will be used with an asbestos-containing part, because

a.       The product was originally equipped with an asbestos-containing part that could reasonably be expected to be replaced over the product’s lifetime,

b.       The manufacturer specifically directed that the product be used with an asbestos containing part, or

c.       The product required an asbestos-containing part to function properly. Id. at 240.

The Third Circuit added a coda: “These may or may not be the only facts on which liability can arise. The finer contours of the defense, and how it should be applied to various sets of facts, must be decided on a case-by-case basis.”

Unfortunately, the court failed to simply identify the principle of protection of sailors as the primary “established principle.” Instead, it burned three straw men in an attempt to camouflage this rationale for its conclusion.

*Paul is a shareholder in our Mt. Laurel, New Jersey office. He can be reached at 856.414.6008 or pcjohnson@mdwcg.com.


Defense Digest, Vol. 24, No. 1, March 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.