Air & Liquid Systems v. DeVries: U.S. Supreme Court Hears Oral Argument on Bare Metal Defense Under Maritime Law

As the ultimate authority on general maritime law, the U.S. Supreme Court heard oral argument today on a matter involving basic tort principles most often evaluated at the state court level. In Air & Liquid Systems v. DeVries, the parties presented argument on whether a manufacturer may be liable for injuries caused by a product manufactured by a third-party. The petitioners are comprised of pump, turbine, and boiler manufacturers whose equipment was installed for use on Navy ships. The respondents are the widows of Navy sailors who are alleged to have developed mesothelioma as a result of exposure to asbestos onboard Navy ships. Given the injuries occurred at sea and outside any specific state, maritime law was applied. 

At the trial court level, the equipment manufacturers asserted the “bare metal defense,” under which they maintained that they cannot be found liable for asbestos-containing replacement products, e.g., internal gaskets and external insulation, manufactured by third-parties and affixed onto or installed inside their equipment products. The U.S. District Court for the Eastern District of Pennsylvania granted summary judgment to the equipment manufacturers, and the plaintiffs appealed to the Third Circuit, which remanded the case, holding that a manufacturer could indeed be liable for an injury caused by a third-party product, if it is foreseeable that the third-party product could be used with the defendant’s product. The U.S. Supreme Court then granted certiorari. 

The question of whether the equipment functionally required asbestos was addressed throughout the arguments, with each side taking opposite positions. The equipment defendants asserted that not only was there non-asbestos containing component parts then, their equipment is in use now without asbestos. Thus, the equipment does not require asbestos to function (although they conceded that, perhaps at that time, the equipment worked better with asbestos). On the other side, the respondents argued that the equipment must be sealed by an asbestos-containing gasket as that was the only thing that worked at that time. When asked whether the equipment was “shipped with” the asbestos-containing product, the respondents explained that there is a difference between internal gaskets and external insulation. It is difficult to ship a turbine with a blanket on it, but a turbine at that time could not function without the asbestos-containing insulation on it.

The respondents further argued that the operation of and maintenance of “these machines” is what makes the dangerous product worse. As the equipment is used, the asbestos-containing internal components degrade under pressure or intense heat, requiring the user to dig out the product, resulting in dust. These machines are originally provided with asbestos-containing internal gaskets and even replacement kits consisting of asbestos-containing gaskets. It would therefore be expected and foreseeable that the replacement product would be asbestos-containing. A warning cannot be placed on the gasket as it would disappear under heat and pressure; therefore, the duty should be on the equipment manufacturer to warn.

The equipment manufacturers maintained that, in looking to tort law as a whole (and not just asbestos cases), no other manufacturer has been found liable for another manufacturer’s products. Justice Gorsuch observed that three potential standards could be applied: 1) whether the use of asbestos-containing replacement products was foreseeable, 2) whether the use of asbestos-containing replacement products was inevitable, or 3) whether ordinary tort standards should be applied, and the manufacturer should not be liable for third-party manufacturers’ products. A comparison was made to ashtrays and flashlights. Batteries are not intrinsically dangerous but if there is a risk of battery acid leaking, should the flashlight manufacturer warn of that risk? Ashtrays do not themselves cause cancer but are made to hold a cancer-causing product–should a warning regarding the hazards of smoking be placed on ashtrays? How far does this extend?

Justice Breyer meanwhile quoted frequently from the Restatement of Torts and, in putting aside the issue of duty to warn, he instead evaluated the case from a negligence standpoint. If these manufacturers knew the third-party products were dangerous, and they shipped out their equipment containing these dangerous third-party products making it reasonable to assume that replacement parts would be asbestos-containing, they should be found negligent.

Justice Ginsburg asked what many wondered: what is the role of the Navy in this issue? While the Navy itself is immune from suit, the equipment manufacturers stressed that the Navy specified the use of asbestos. On the other side, the respondents argued that the “machine” manufacturers were more familiar with how the machine works than the Navy in that the manufacturers knew the pressure or heat that was to be applied to these components. The manufacturers provided manuals to the Navy, and warnings could be placed therein. 

Much of the focus on the equipment manufacturers’ argument was the policy perspective. They contended that the manufacturers of the actual asbestos-containing products should control the warning. Technology changes, including the evaluation of what type of warning is most effective for a given products; therefore, the duty to warn should be borne by the manufacturer of the asbestos-containing product. Moreover, if the duty to warn is expanded, there is a potential for contradictory warnings or even a “deluge of warnings,” thus diluting the warning’s effect. Finally, if a standard of liability is imposed based on whether that dangerous product is required, directed, or inevitably used, the manufacturers are faced with an ambiguous directive requiring an evaluation of the dangerous product’s intended or potential incorporation when determining whether to provide a warning.

At MacDonald Law Group, we handle a broad array of matters involving the defense of toxic tort and asbestos-related claims.  Should you have any questions on toxic tort or asbestos-related topics, please contact us using the email or phone contacts found on our website at

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