Posted on July 6, 2018
By Francisco Báez Baquet
Acknowledgment: this article has been conceived and written, thanks to the valuable initiative, alert and cooperation of François Iselin and the Swiss association CAOVA (Comité d’aide et d’orientation des victimes de l’amiante).
On several occasions, the European Court of Human Rights has come to correct judicial resolutions adopted by various nations belonging to said supra-national jurisdiction: (1).
This Court, in its judgment of March 11, 2014 (2), considered that the applicable Swiss legislation, which provided for a limitation period of 10 years, was a harmful act, which violated the right of access to a court (ie , Article 6 § 1 of the Convention), given that it has been scientifically proven that a person is incapable of knowing that she is suffering from a disease, before the deadline in which all the latency time of the pathology has already elapsed suffered, which in the case of mesothelioma is of the order of several decades: (3), (4).
Hans Moor, who died of mesothelioma in 2005, at 58 years of age, was the first Swiss victim of asbestos, recognized by the European Court of Human Rights (CEDH). Born in 1946, Hans completed an apprenticeship as a mechanic-adjuster in 1964 at the «Oerlikon» machine factory (today, «Alstom SA»). He worked in «ABB Alstom» (formerly «Brown, Boveri et Cie.»), in the manufacture of turbines. He remained employed until his death, which occurred on November 10, 2005. From 1965, he worked as a turbine engineer and was also in charge of machine inspection, both in Switzerland and abroad.
While he was unaware of the risks associated with asbestos dust, he was exposed to this material in the course of his various activities, at least until 1978, when he was offered a management position in the company’s internal service. Between 1975 and 1976, the technique of “flocage” of asbestos (also known in Switzerland as “Spritzasbest”) was forbidden. As of 1989, asbestos was subject to a general ban in Switzerland.
Hans Moor claimed to have been, however, in contact with asbestos, on the occasion of two work trips abroad, one to the United States, in 1992, and the other to the Antilles, in 1996.
In May 2004, Hans Moor learned that he was suffering from a malignant pleural mesothelioma, caused by the asbestos to which he had been exposed in the environment of his work.
It was probably exposed, because of the presence of flocculated asbestos (asbestos spray) in its factory, isolated up to eight times with projected asbestos, between 1968 and 1972. The latency, which would be about 35 years, could correspond to that attributed to mesothelioma.
However, it should also be borne in mind that turbine manufacturing itself has involved, at least in the past, the use of asbestos as an ingredient in the composition of the same, which is the reason, at the time, of various lawsuits formulated against another manufacturer of such machinery: “General Electric” (Vogel v. General Electric Co. et al., Bailey v. idem, Petryk v. idem, Zema v. idem, Iorlano v. idem, Founds v. idem, Houlihan v. idem, Turner v. idem, etc., etc.).
What is indicated by the available background of other cases, is that, apparently, asbestos has been used in the manufacture of the turbines, and therefore, in the case of Mr. Moor, there could potentially be two sources of exposure : the fireproofing of the surfaces of the structure of the factory (friable asbestos, in permanent presence, with vibrations, air currents, etc.), but also as an ingredient present in the turbines themselves, and handled during their manufacture.
And since to trigger a mesothelioma, minimal doses, weak concentrations of fibers in atmosphere, or brief, sporadic, or even unique and specific exposures are sufficient, therefore, both possibilities of contamination are pertinent to be taken into consideration.
Thus, for example, in the judgment STSJ AS 3150/2016, it can be read: “According to the work plans of activities with asbestos risk that the company brought to the labor authority, the functions to be developed were: -In 1988, in the Central Lada thermal: total elimination of insulation in AP turbine, valves and connection pipes of the Lada IV turbine in CT Lada. The existing insulation was based on calcium silicate plates, containing chrysotile asbestos. It is applied on the casing and tubes that make up the turbine assembly”.
In the sentence STSJ GAL 7143/2016, we can read: … “As a worker of frames, in the Testing section, performed functions of valve cover, turbines, boilers, with asbestos, which manipulated in the workshop in which the mounts. These lining functions were protected with asbestos blankets until the start-up “. Same paragraph we will see also reflected in the judicial resolution STSJ GAL 3659/2015.
In the sentence STSJ AS 636/2014 we are similarly told that: “The deceased had in the companies «Duro Felguera SA» and «Felguera Construcciones Mecánicas SA» with the category of adjuster specialist or adjuster officer, usually providing services in the «Barros Workshop» in «La Felguera», in the mechanical division of the workshop, although it also carried out during the years in which it worked for them displacements for the repair of thermal and nuclear power plants, mainly turbines. These trips varied from 2 to 5 per year according to the work that would be in the workshop of «Barros».
For the repair of the turbines they had to completely remove the asbestos that covered the same, sometimes when it had just turned off the machine, so the temperature was still high, removing the asbestos almost burned”.
We will find similar paragraph similarly reflected in the judicial resolution STSJ AS 3214/2013.
In the sentence STSJ CAT 8317/2012, we can read: “In the electrical generation facilities there were elements of insulation with asbestos, so the actor could have some occasional contact with asbestos fibers when performing certain repair or replacement operations of such insulation in some work equipment, such as turbines”.
In the judicial resolution STSJ AS 3587/2008, we will read: “During the time he worked in the maintenance service as Adjuster Officer, both 3rd and 1st, he was responsible for the assembly, disassembly, testing and mechanical repair of the engines, boilers and turbines. He performs his tasks both in the outdoor area where the machines to be repaired were placed, and in the workshop. The turbines and heat elements were protected by asbestos, which was removed, for repairs, either by a specialized team or by the maintenance workers themselves exceptionally “.
In the judgment STSJ ICAN 3839/2007, the phrase is included: “In CEPSA ships there was a large quantity of asbestos that was used for its resistance properties; in the engine room, cargo turbines, pipes, boilers, steam engines were covered with asbestos; also the pipes located on the roof were lined with asbestos.”
Similarly, in the judicial resolution ATS 10804/2016, we can read: … “the worker, since joining the company in March 1994, has been carrying out assembly and dismantling of insulation work, among which was, on the occasion of the disassembly, the extraction of fiberglass and calcium silicate with asbestos and without asbestos. In addition, it sometimes cut calcium silicate, which was then placed in the turbines”…
Similarly, in the sentence STSJ CAT 5012/2016, we will read: “The company sued, «Saint-Gobain Techincal Insulation, SA», between 1961 and 1967, was engaged in the commercialization of asbestos, with products made as “Asbestospray”, which was a projected insulation, and also bulk asbestos to be added to mortars or projected and also made asbestos applications in the insulation works carried out in the «FECSA» Thermal Power Plant located in “Sant Adrià de Besòs” and in the change of isolations of the turbines of that plant, which were carried out with a periodicity of three years”.
In the sentence STSJ CAT 2166/2016 it is also said: “Since his entry into the company the worker D. Arsenio, in March 1994 has been carrying out assembly and disassembly work on insulation, among which was, on occasion of the disassembly, the extraction of fiberglass and calcium silicate with asbestos and without asbestos. Likewise, he sometimes cut calcium silicate, which he then placed in the turbines and tanks that were installed in the different work centers in which Mr. Arsenio has been rendering his professional services.”
In the judgment STSJ CAT 1899/2016, it is also indicated that: “In Sant Adrià de Besòs, he states that they injected asbestos into a turbine, with hose, and there were also other workers who were engaged in flattening the projected material.”
In the sentence STSJ CAT 9564/2015, we are told that: “Since his entry into the company the worker D. Ernesto, in March 1994 has been carrying out assembly and disassembly work on insulation, among which was, on occasion of the disassembly, the extraction of fiberglass and calcium silicate with asbestos and without asbestos. In addition, he sometimes cut calcium silicate, which he then placed in the turbines and tanks that were installed in the different work centers in which Mr. Ernesto has been rendering his professional services.”
Similarly, in (5) it was stated: “Giampiero Pesenti and 7 other former executives of «Franco Tosi Meccanica» -a turbine manufacturer- were charged with homicide and injury charges, due to negligence, in relation to more than 33 cases of workers who died of mesothelioma, and of two others, who became ill after work, between the seventies and the beginning of the nineties, in the factory where, according to the accusation, they breathed asbestos fibers, without adequate safety measures. The remaining defendants are: Renato Conti, Luciano Cravaroli, Rodolfo Di Stefano, Roberto Giannini, Enzo Ianuario, Francesco La Via, Giuliano Tedeschini and Vincenzo Vadacca.
The trial has been ordered by the court for the preliminary hearing against the eight former directors (until 2000, the company was owned by «Ansaldo Energia», dedicated to the same activity), accused of violating the rules for the prevention of accidents of work and occupational diseases, given that workers were not informed about the risks related to exposure to asbestos, in the thermal insulation of work pieces, nor were they fitted with adequate masks for respiratory protection.
The founder of the company «Franco Tosi», on November 25, 1898, was murdered, near the train station in Legnano (Milan), by one of his workers.
Pesenti, now president of the «Italcementi Group», is recognized as one of the former members of the Executive Committee of the company, from March 1973 to April 1980. The trial began on the 20th of March.
In the factories, in those days, asbestos was used in abundance, for the thermal insulation of the pieces, which were worked hot, for the isolation of parts of the plant and equipment, for the molding of parts, and also for protect workers from the risk of burns, while they were working.
According to the indictment, the industrialist, the former president of “Gemina” (holding of industrial investments) and the union pact “RCS MediaGroup” (the main Italian publishing group), should have required the use of respiratory protection equipment. The cleaning was done with shovels, brooms, rags and jets of compressed air. The fragments of the demolished insulation were treated as rubble from common construction works, and accumulated outside the perimeter of the industrial facility.
Now the prosecutor has to try to identify those responsible for these deaths. It is not the first attempt: in 2007, ten «Ansaldo» executives were acquitted by the judge of first instance, for the death of another 24 workers.
Nowadays, with the new strong scientific-legal guidelines, the prosecutor wants to proceed with the new trial.”
In the article: Knoll, L., Felten, M. K., Ackermann, D., & Kraus, T. (2011). Non-response bias in a surveillance program for asbestos-related lung cancer. Journal of occupational health, 53(1), 16-22. https://www.jstage.jst.go.jp/article/joh/53/1/53_L10061/_pdf , we will read:
“In the cases of repairs or continuous maintenance of the turbine, the workers were exposed to high concentrations of asbestos in the air. The direct contact with the asbestos was achieved by demolishing turbine isolations or as spectators close to this work “…
In the article: Schneider, J, Straif, K, & Woitowitz, H J. / Pleural mesothelioma and household asbestos exposure / Reviews on environmental health. 1996; 11(1-2): 65-70, it is stated: “From 1950 to 1984, husbands were employed in different companies that manufactured asbestos carpets, asbestos textiles and asbestos cardboard, or in occupations such as insulators, roofers or workers reviewing turbines that process products with asbestos.” …
In the article: Moshkovskiy, V. E. / (2016) / Hygienic assessment of asbestos containing dust in the air of the working zone at thermal power plants / Medical Perspectives, 21(3), 61-64, the author states: … “the objective of the work was to evaluate the asbestos that contains the dust in the air of the work area in the steam turbine and the TPP gas turbine in the eastern region of the country”.
In the technical report: Tripputi, I. (2005). Nuclear decommissioning in Italy (No.NEA-RWM-WPDD–2005-6). http://www.iaea.org/inis/collection/NCLCollectionStore/_Public/45/026/45026355.pdf, are included references to the presence of asbestos in turbines:
«Trino»: Removal of turbine asbestos insulation (completed)
«Caorso»: Removal of asbestos from the turbine system (completed)
«Garigliano»: Removal of asbestos from turbine building (waiting for authorization)
«Latina»: Removal of asbestos from the turbine system and from some rooms of the Reactor Building (completed).
We can read, in the study:
Felten, M. K., Knoll, L., Eisenhawer, C., Ackermann, D., Khatab, K., Hüdepohl, J., … & Kraus, T. (2010). / Retrospective exposure assessment to airborne asbestos among power industry workers. / Journal of Occupational Medicine and Toxicology, 5(1), 15. https://occup-med.biomedcentral.com/articles/10.1186/1745-6673-5-15:
“As a result, two sets of questionnaires were obtained, one for the subgroup of energy generation workers with information on asbestos exposure and occupational tasks related mainly to the routine revisions of the turbine and a second set for the workers of the distribution of energy “.
We see, for all the above, that both the Spanish judicial chronicle and the pertinent bibliography for the question, allow to conclude that the incorporation of asbestos in the installation and manufacture of turbines, has been a constant, habitual for a long time.
The presence of asbestos in the turbines, has even been mentioned in a work of fiction, inspired by reality: in the detective novel “I hear sirens in the street”, of the Irish novelist Adrian McKinty, we will have the opportunity to read: “The noise of the shotgun had sown the frenzy among the birds, and as we ran to find shelter behind a half-disassembled steam turbine, we watched the pigeons take off from the ceiling, unleashing a fine shower of white asbestos particles on us, like winter snow nuclear”.
For all the above, it can reasonably be inferred that Hans’ occupational exposure was twofold: because of the friable asbestos present in the structure of the factory in which he carried out his work, and also, at the same time, because of the use of asbestos in the composition of the turbines.
With this, a circumstance of double risk of occupational exposure would be fulfilled, as it is said, that we will see it emerge equally in other industrial environments.
It will be the case also, for example, as when, in the manufacture of tires, asbestos has been present in the structure of the factory, and at the same time as a natural pollutant of the industrial talc used in demolding.
They are “details” usually overlooked in the courtroom.
The human drama of asbestos is not a question that can be reduced simply to figures, deaths or affectations, regardless of whether these numbers are more or less reliable and scandalous.
To be convinced of this, it is enough, for example, to attend to the mere title of some of the academic papers published on this subject, and so we will have, as a sample of what we want to mean, the title of the article by Harris et al. (1994): “Esophageal obstruction, complicating malignant mesothelioma: palliation with interposition of the colon”.
With regard to the Moor case, this trial had a strong political and judicial impact in the Swiss country, since the ECHR condemned Switzerland for having prevented the family from having recourse to justice and for having opposed the prescription, as well as also condemned the manager of the professional insurance, SUVA, for not fulfilling its responsibility in front of one of its affiliates.
Hans’s wife, Renate Howald Moor, and her two daughters, decided to appeal to the Court, for being very combative and for respecting the will of Hans, who had told them, one month before his death: “Start a legal process and go until the end, this is my testament “: (6).
In the most diverse nations, it is very common for the victims of asbestos to assume that condition, double-title, first to be affected, and then, when denied justice compensation: (7).
This trial gave the Swiss far right the opportunity to denounce “the interference of foreign justice in national decisions”. Moreover, he launched an initiative, which the Swiss will vote, entitled: “Swiss law, against foreign judges.”
According to recent information, the Moor case is not liquidated at all, since the Swiss courts have yet to rule on it.
The commentary that may deserve the action, in this matter, of the extreme right Swiss (in a context in which the victims of asbestos constantly questioned and violated their rights to be compensated for the consequences arising from this exposure, labor or environmental) , we can mean it, using an expressive Spanish proverb: “We did not fit into the house, and the grandmother gave birth”.
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Notes and Bibliography
(1) Francisco Báez Baquet EL AMIANTO, A JUICIO. El abordaje de la problemática del asbesto, en el Tribunal Europeo de Derechos Humanos / «Rebelión». 25/05/2015 / http://www.rebelion.org/docs/199168.pdf
(2) https://www.eufje.org/images/docConf/buc2016/AFFAIRE%20HOWALD%20MOOR%20ET%20AUTRES%20c.%20SUISSE.pdf
(3) CAOVA – Boletín nº 6 http://caova.ch/wp-content/uploads/2016/09/bulletin-no-6.pdf
(4) Denegación por prescripción: http://caova.ch/wp-content/uploads/2010/11/les-24112010-p10.pdf
(5) Francisco Báez Baquet / Amianto, Italia. Crónica de actualidad (abril, 2016) / «Rebelión», 16/05/2016 https://www.rebelion.org/noticia.php?id=212317
(6) Testimonio: “Renate Howald Moor: lutte pour la justice pour les victimes de l’amainte: https://www.youtube.com/watch?v=zTivEzrAUKI
(7) Francisco Báez Baquet / Desvalidos y desvalijados – Las víctimas dobles del amianto «Rebelión», 03/07/2015 http://www.rebelion.org/docs/200669.pdf