US Supreme Court adopts new rule for maritime manufacturer’s duty to warn obligation
Air & Liquid Systems Corp. v. DeVries, No. 17-1104 (March 19, 2019).
The US Supreme Court has announced a new rule in maritime tort cases for determining when manufacturers of maritime products and equipment must provide a warning of potential danger due to third party parts incorporated into the product or used in connection with the product.
New three-part test
Referring to a conflict with approaches previously adopted among the circuit courts and with a nod to the traditional ‘solicitude for sailors’ of the admiralty courts, the Court held that, in the maritime tort context:
“…a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.”
The Court stressed that the rule does not apply when it is merely foreseeable that the manufacturer’s product could incorporate a dangerous part; the rule “requires that manufacturers warn only when their product requires a part in order for the integrated product to function as intended.”
The Court included situations within the scope of the rule such as:
• Where the manufacturer instructs that the potentially dangerous part be used with its product
• Where the manufacturer makes the product with a part that will possibly have to be replaced with a potentially dangerous part
• When the manufacturer’s product would be useless without the addition of the potentially dangerous component.
In announcing the rule, the Court rejected the “bare metal” defense which allowed marine equipment manufacturers to avoid liability for failure to warn whenever the manufacturer’s equipment was sold and delivered without the potentially dangerous component, regardless of whether the manufacturer’s equipment could be used without the potentially dangerous part. For example, if a pump manufacturer sold its pump without a necessary asbestos gasket knowing that the asbestos gasket was necessary for the pump to operate, the bare metal defense would allow the manufacturer to avoid liability for failure to warn of the potential danger of asbestos exposure.
The Court also rejected the much more plaintiff-friendly foreseeability rule, which required the product manufacturer to warn of potential danger due to an added part or component whenever it was foreseeable that the manufacturer’s product would be used with a potentially dangerous component, even if the manufacturer’s equipment could be used without the added component. Using the pump and gasket example, the pump manufacturer would have a duty to warn if it was possible to use the pump without an asbestos gasket but foreseeable that the pump would be used with an asbestos gasket.
Comment and comparison to UK position
The Court was keen to stress that it ‘does not purport to define the proper tort rule outside the maritime context’ but the new rule may actually raise more questions than it answers. The Court’s rule is subjective and necessarily requires a case-by-case analysis. In a dissenting opinion, Justice Gorsuch, joined by Justices Thomas and Alito, suggested that adopting the common law rule that a manufacturer need only warn of potential dangers associated with that manufacturer’s own product would provide greater predictability.
In England and Wales, looking solely from the perspective of a claim in negligence, manufacturers and suppliers owe a duty to take reasonable care in acting to an acceptable standard to ensure a product is safe. This would extend to the provision of adequate instructions and warnings with their products, where appropriate. There is no direct case law on whether or how far this extends to providing information in respect of component parts that will need to be incorporated but which are to be provided by another manufacturer. If the design of the finished product requires the incorporation of a component that is or ought reasonably to have been known by the manufacturer to be potentially dangerous, then it would be unsurprising (under tort law in England and Wales) if the manufacturer of the finished product were to be held to be negligent if it fails to warn of the potential or actual danger. However, this will likely depend upon the factual matrix of each claim, and will depend on the product and the reasonable expectations surrounding its use.
The tort liability picture for marine product manufacturers in the US has changed with the Supreme Court’s adoption of this new rule. While in the past, under certain circumstances, a manufacturer could satisfy its duty to warn of potential danger based upon the manufacturer’s own product, now the manufacturer has to consider how its product will be used on board ship and whether its product will require use or incorporation of additional parts that may potentially be dangerous. The majority opinion states that the manufacturer is in a better position to assess the possible danger and to warn of that danger.