SCOTUS Limits “Bare Metal Defense”


On March 19, the U.S. Supreme Court decided the case of Air & Liquid Systems Corp. v. Devries, affirming the ruling of the U.S. Court of Appeals for the Third Circuit in this maritime tort case involving the availability of the “bare-metal defense.” The bare-metal defense’s basic idea is that a manufacturer who delivers a product “bare metal”—that is without the insulation or other material that must be added for the product’s proper operation—is not generally liable for injuries caused by asbestos in later-added materials.

The Court confirmed that

“maritime law’s special solicitude for the safety and protection of sailors counsels us to adopt a standard-based approach to the bare-metal defense that permits a plaintiff to recover, at least in negligence, from a manufacturer of a bare-metal product when the facts show the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s conduct.”

The District Court held that the “bare metal defense” (which has been recognized by other federal courts) applied here, which provides that manufacturers cannot be held liable for injuries from equipment they did not make or install. The Third Circuit reversed the summary judgment dismissing these lawsuits, and that ruling was affirmed by the Supreme Court in a 6 to 3 decision.

Justice Kavanaugh, writing for the Court, pointed out that in maritime cases, the federal courts serve as common law courts, and the maritime law has recognized the tort of negligence for more than a century. Negligence can be established if there is a duty to warn of such dangers from exposure to asbestos in these settings, and no warning was provided.

Here, the manufacturers could reasonably foresee that asbestos would be added to the equipment they provided to make it effective for its intended use. The Court also noted the “special solicitude” the courts extend to sailors and all those who labor at sea, and acknowledged that the asbestos manufacturers are bankrupt, and the Navy itself is likely exempt from liability under a venerable Supreme Court precedent, Feres v. U.S.

The Court affirmed the District Court with respect to Devries and McAfee’s strict liability claims, and remand for further proceedings on their negligence claims.