Supreme Court Resolves Maritime Product Duty-to-Warn Issue

The United States Supreme Court is the final arbiter of the Maritime Law, a unique and large body of federal common law, tempered by any controlling Congressional enactments. So, in recently decided Air & Liquid Sys. Corp. v. DeVries, the Court addressed the scope of the duty of a marine product manufacturer to warn of a potential harm from a part that is required to be incorporated into its product. Here, the part to be added contained asbestos, and it allegedly led to the deaths of two Navy sailors. Their families sued the manufacturer of pumps, blowers, and turbines, but not the manufacturer of the asbestos-containing added part that actually caused the harm. The Supreme Court sided with the families.

The families alleged that the first manufacturer had a duty to warn of the ultimate danger, since it knew its product needed the second part, the dangerous one, in order to function, and it knew that the result would create a danger to users and they would not realize the danger. The manufacturer claimed it had no duty to warn, since its equipment was already onboard the ships and it was the Navy which added the asbestos. The Supreme Court imposed that duty to warn. Justice Kavanaugh wrote the majority opinion, while Justices Gorsuch, Thomas, and Alito dissented.

The majority’s reasoning started with basic tort-law principles as expressed in the Restatement of Torts. A manufacturer of a marine product has a duty to warn when it “knows or has reason to know that its product is likely to be dangerous for the use for which it is supplied” and has no reason to believe that the product users will realize the danger. The Court’s adaptation imposes a duty to warn when the manufacturer knows that a dangerous addition must be made to its product in order for it to function. The Court notes the maritime law’s “special solicitude” of those who undertake to “venture upon hazardous and unpredictable sea voyages.”

Justice Gorsuch wrote the dissent. He would revert to a purer common law, with a rule that a manufacturer of a perfectly good product should not have to warn of danger if an asbestos-containing part is later added. He would put the onus – the duty to warn – on the manufacturer of the dangerous product, not the manufacturer of the original product. There is a “silver lining” for the dissent, however, that the majority does not seek to define the proper rule outside the maritime law context.

Finally, we note that neither opinion explains just who is to be warned – the Navy, or all of its sea-going sailors? A commercial shipping company, or all its merchant seamen? Or all its passengers? We suppose that is for another day and another case.