Amicus Curiae Brief — Yamaha Motor Corp., USA v. Calhoun

Supreme Court, U.S.

© FILED

No. 94-1387 JUL 26 1995

In the Supreme Court of the Ani

OCTOBER TERM, 1995

YAMAHA MorTor CORPORATION, U.S.A., ET AL.,

PETITIONERS

Vv.

LUCIEN B. CALHOUN, &TC., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

Drew S. Days, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

PAUL BENDER

Deputy Solicitor General

PAUL A. ENGELMAYER

Assistant to the Solicitor General

ROBERT S. GREENSPAN

DAVID V. HUTCHINSON

EDWARD HIMMELFARB

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

br

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‘BEST AVAILABLE COPY, ummm

QUESTIONS PRESENTED

1. Whether, with the recognition of a general federal

maritime cause of action for maritime death in Moragne

v. States Marine Lines, Inc., 398 U.S. 375 (1970),

admiralty courts may continue to apply state law to

determine the remedies available in cases involving the

deaths of non-seamen in territorial waters.

2. Whether, under 28 U.S.C. 1292(b), the courts of

appeals can exercise jurisdiction over any question that

is included within the order that contains the controlling

question of law identified by the district court.

(I)

TABLE OF CONTENTS

Interest of the United States ...............ccccssssecceeerereeeseeeeseeees

IIT stssis ees cetertcacnnncsouessrereoeosesesnooeocesceescotscoecccooes

Summary of argument ............cccccssseessssseereeeeceseeenseseeeeeseneees

Argument:

I. The general federal maritime cause of action for

wrongful death recognized in Moragne v. States

Marine Lines, Inc. supplies the exclusive remedy

in cases involving the deaths of non-seamen in ter-

SII TINNED s cciccncsscsedecesnssuccsncevevesesessocoscccosecccesosses

II. The court of appeals had jurisdiction under 28 U.S.C.

1292(b) to address the issue of whether state reme-

dial, statutes may apply to respondents’ lawsuit, be-

cause that question was relevant to the validity of

the order certified by the district court .................+.

RII uiantadadbientsotscteccceccscenceperesesorevencecsoccsceseovesscesoocscees

TABLE OF AUTHORITIES

Cases:

Aldridge v. Lily-Tulip, Inc. Salary Retirement Plan

Benefits Comm., 40 F.3d 1202 (11th Cir. 1994) ............

American Dredging Co. v. Miller, 114 S. Ct. 981 (1994)

Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) .......

Bersch v. Drexel Firestone, Inc., 519 F.2d 974 (2d Cir.),

cert. denied, 423 U.S. 1018 (1975) .................:ccccseccseceees

Carlisle Packing Co. v. Sandanger, 259 U.S. 255

i sccstaseocccccens

Chelentis v. Luckenbach S.S. Co., 247 U.S. 372 (1918) .

Cinematronics, Inc., In re, 916 F.2d 1444 (9th Cir.

i os cc nswsnnonncccces

Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir.

1986), cert. denied, 479 U.S. 1043 (1987) .......................

Dailey v. National Hockey League, 987 F.2d 172 (3d

Cir.), cert. denied, 114 S. Ct. 67 (19938) ......................005

Director, OWCP vy. Perini N. River Assocs, 459 U.S.

a. cosoneccccccnccnceses

(III)

Page

Sx

16

IV

Cases—Continued: Page

Ducre v. Executive Officers of Halter Marine, Inc.,

752 F.2d 976 (Sth Cir. 1985) ................csccccecrceeseeseseeseees 26, 28

Easley v. Pettibone Michigan Corp., 990 F.2d 905 (6th

ie, TID ceccnctessnsonnntsemninetsteussaniasnavesintnseetsenesanuvenpenneinn 26

Edwardsville Nat'l Bank & Trust Co. v. Marion Lab.,

Inc., 808 F.2d 648 (7th Cir. 1987) .............cccceeeeeeees 25, 26, 27

Evich v. Morris, 819 F.2d 256 (9th Cir.), cert. denied,

GBA UB, BOG COTE) cccceccesiccessevcccnsectssescvscscesessvnsssccssoseses 13

Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982). 21, 22

Gillespie v. United States Steel Corp., 379 U.S. 148

CBIIED cexessssseccsoscevesstetncsscsdenttiomanisesssesessabacsenentunnactnesoees 9, 12

Goett v. Union Carbide Corp., 361 U.S. 340 (1960) ....... 10

Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469

COI icccciscssscccccasestcistietndsdassaiideiammesenaimammbapiabiasieioe 16

Harley-Davidson, Inc. v. Minstar, Inc., 41 F.3d 341

(7th Cir. 1994), cert. denied, 115 S. Ct. 1401 (1995)....... 26

Hess v. United States, 361 U.S. 314 (1960) .................. 10-11

Ivy Club v. Edwards, 943 F.2d 270 (3d Cir. 1991), cert.

Goeth, GED TE: Be Ge kctntiacsatescsacccinianitcnninecsactcenets 26

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock

Ca, 125 &. Oy, SGD (IBGE .ccccccscscccoesccssescsconccsscvsscoosece 21, 22-23

Johnson v. Alldredge, 488 F.2d 820 (3d Cir. 1973), cert.

Ca, GED TE Gee Ct ait iideiiccnntidsdeniidinitimnseee 26

Joint E.& S. Dist. of N.Y. Asbestos Litig., In re, 897

Fe ee Ge es TED eetnrcncehenoniincnecinnninssnnsashtisintinkinnens 26

Just v. Chambers, 312 U.S. 383 (1941) ......................... 11

Kermarec v. Compagnie Generale Transatlantique, 358

Ch GE GION Ktanacicncinctatsnstcnisinccocelastnbenibebuiignemeicesecins 15

Kernan v. American Dredging Co., 355 U.S. 426

COED cenicsssscnsnsorintarenisiacsntitiiidaidaniiesiaadinnniainamininniecess 12

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) . 16

Kossick v. United Fruit Co., 365 U.S. 731 (1961) ......... 14

Lindgren v. United States, 281 U.S. 38 (1930).............. 10

Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944) ....... 12

Maryland Casualty Co. v. Cushing, 347 U.S. 409

GERI ci cctinthitsastesanevcwnctaiminnsiaeiantnmenbiiasediaiiehniitaeniate 14

Cases—Continued: Page

Merican, Inc. v. Caterpillar Tractor Co., 713 F.2d 958

(3d Cir. 1983), cert. denied, 465 U.S. 1024 (1984).......... 26

Messel v. Foundation Co., 274 U.S. 427 (1927) ............. 15

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ....... 5, 11, 18,

19, 22, 23

Miller v. Bolger, 802 F.2d 660 (3d Cir. 1986) ................ 26

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618

REET RAO ne ee 18, 20, 22

Moragne v. States Marine Lines, Inc., 398 U.S. 375

(EEE RAR Seer Ree aI Hn ae ce a passim

Morse/Diesel, Inc. v. Trinity Indus., Inc., 859 F.2d 242

ee Re SED adlntilinsisdnccacianeitsinnsinlsdusnnpenatibecentinabiedendsniunesesen 26

Murphy v. Heppenstall Co., 635 F.2d 233 (3d Cir. 1980),

cert. denied, 454 U.S. 1142 (1981) ................csscccosssseerees 26

Nedd v. United Mine Workers of America, 400 F.2d

ST TI III dsc iniehcnpnthipidciccdiipmipmbbapiesibvasdieicanants 26

Nelson v. United States, 639 F.2d 469 (9th Cir. 1980) .. 13

Northern Coal & Dock Co. v. Strand, 278 U.S. 142

STEN <ndiincistutitnteckscmnsinncseiateliueciindemuiiadiivabliantekedionntestece 10

Nuclear Eng’g Co. v. Scott, 660 F.2d 241 (7th Cir. 1981),

cert. denied, 455 U.S. 993 (1982) ..............ccc cece eeeeee seen 26

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207

SPD sdndiidbisie is sactaliiisdaisinsaauaascaiaionpiabisatibibdiiasntberndieneens 8, 9, 20

Panama R.R. v. Johnson, 264 U.S. 375 (1924) ............. 10, 15

Peterson v. Sealed Air Corp., 902 F.2d 1232 (7th Cir.

IEE ciiinsinsinsivtint deine tices dcduitshapatinainienictablsciihiiblata dic tia dilate 26

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953) ....... 15

Preston v. Frantz, 11 F.3d 357 (2d Cir. 1993), cert.

ee 13

Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449

SEPM siitsdeitticsitaidlaanidetidsiedsiaibiihsiiabuibasisidatidindiibelsaitiintanadviesneseee 15

Romero v. International Terminal Operating Co., 358

ee ED NIUIITIED waitanicuabiendadispondcnsiindadiaiaiiabileutesiinseaiepesesns 13

S/S Helena, In re, 529 F.2d 744 (5th Cir. 1976) .............. 13

School Asbestos Litig., In re, 789 F.2d 996 (3d Cir.),

cert. denied, 479 U.S. 852 (1986) ...............cccccccseeeceeeeees 26

VI

Cases—Continued: Page

Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573

SUI idsctrnsteddevinitciecoeddscunvastiiidiiginsticgsialdimniaapitiaagaties 18, 19, 23

Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) ........ 11

Simon v. G.D. Searle & Co., 816 F.2d 397 (8th Cir.),

Gams. Geet, GOG TE. GET CHG? <cccssicccccccncccssseccsesssesess 26

Sisson v. Ruby, 497 U.S. 358 (1990) ...........ccccceceeeeeees ) 21

Slade v. Shearson, Hammill & Co., 517 F.2d 398 (2d

EI. IIIT Xcrcnicsenroscinnsetihecnientesaiiepeptesmecielaadabedabaeningiaaaenoveteedin 26

Southern Pac. Co. v. Jensen, 244 U.S. 205 (1917)......... 16

Steering Comm. vy. United States, 6 F.3d 572 (9th Cir.

SIE is onitithccuiheneckasiecdesiinataasientantedensaancagasliaatiaadaidaasalahpeiiademaiien 26

Swint v. Chambers County Comm’n, 115 S. Ct. 1203

TEI Sessitipisctehnbiccebpeniabiainbaaidanecachacadeantahecaciiiastnedadimbaidaiatiidslhcitdniinstencdee 25, 29

Texaco Ref. & Mktg., Inc. v. Estate of Dau Van Tran,

808 S.W.2d 61 (Tex.), cert. denied, 502 U.S. 908

SI saiescanesessshetielis salina catsencotaneaieiabcigseabinlnpteniieniaieanpensesennen 13

The Hamilton, 207 U.S. 398 (1907) ............:cccsssseeeeeeeeeeees 9

The Harrisburg, 119 U.S. 199 (1886) ............ eee 8,9

The Lottawanna, 88 U.S. (21 Wall.) 558 (1874) .............. 13, 14

The Roanoke, 189 U.S. 185 (1908) ...............ccccceccorsrssseeses 14

The Tungus v. Skovgaard, 358 U.S. 588 (1959) ............. 11

Union Fish Co. v. Erickson, 248 U.S. 308 (1919) ......... 14

United States v. Banco Cafetero Panama, 797 F.2d

ee Gal II baiieidieseinca bial llintiaid it stieaiicniiiemicattindaudocseons 26

United States v. Connolly, 716 F.2d 882 (Fed. Cir.

1983), cert. denied, 465 U.S. 1065 (1984) .........0...00000000. 26

United States v. Fleet Factors Corp., 901 F.2d 1550

(11th Cir. 1990), cert. denied, 498 U.S. 1046 (1991) .......

United States v. Stanley, 483 U.S. 669 (1987) .............. 7, 25

Wahistrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d

1084 (2d Cir. 1993), cert. denied, 114 S. Ct. 1060

- SRABEEREIN Buen. ARISES Aan ae 13, 19

Walsh v. Ford Motor Co., 807 F.2d 1000 (D.C. Cir.

1986), cert. denied, 482 U.S. 915 (1987) .........0.000ccc. 26

Washington v. W.C. Dawson & Co., 264 U.S. 219

RUNNY shtlishchuandinbesisic teeoeticscepnaspdgiateniai ebdaliaeidemiiesionsicnmiaidecios 16

Vil

Cases—Continued: Page

Western Fuel Co. v. Garcia, 257 U.S. 233 (1921) .......... 10, 16

Workman v. New York City, 179 U.S. 552 (1900) ......... 15

Statutes:

Death on the High Seas Act, 46 U.S.C. App. 761 et seq. .. 3-4

Bi eee SINE: TIEN: WEED sccictnschanncetticncesisnssntniceposdecennsconseses 9

De ie ee CI GEE beccectnsvitictnninnccinaninseneccees 6, 7, 20, 21

Federal Employers’ Liability Act, 45 U.S.C. 51-60 .......... 9

Longshore and Harbor Workers’ Compensation Act, 33

SI MII whic tec cisncstsansatiennnindenmonnnemtbinenniepencqoses 16

I a reineebrnee 11

Merchant Marine Act of 1920, 46 U.S.C. App. 688 .......... 4

Public Vessels Act §§ 1-9, 46 U.S.C. App. 781-789 ............ 2

Suits in Admiralty Act §§ 1-12, 46 U.S.C. App. 741-752 ... 1-2

28 U.S.C. 1292(b) (Supp. 1992) ................ 4, 7, 24, 25, 26, 27, 28

ne ss ceeiiatniilebiiptniemnniounedacteda 3

os cdgeensnnnes 3

42 Pa. Cons. Stat. Ann. (1982 & Supp. 1995):

a lila atiniianienaetion 2

a a ae esdszuteinenieneies 2

Miscellaneous:

G. Gilmore & C. Black, The Law on Admiralty (2d ed.

ac atcieeienea ial ichliclen ical eet cacidiaimmnans 11, 12

9 J. Moore, B. Ward & J. Lucas, Moore’s Federal

I a ieiiiiieepsoncions 27

Note, /nterlocutory Appeals in the Federal Courts under

28 U.S.C. § 1292(b), 88 Harv. L. Rev. 607 (1975) .......... 27

S. Rep. No. 2434, 85th Cong., 2d Sess. (1958) .................. 27

C. Wright, A. Miller, E. Cooper & E. Gressman,

Federal Practice and Procedure (1977) .........cccccceecceeees 27

4

%

=

In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-1387

YAMAHA MOTOR CORPORATION, U.S.A., ET AL.,

PETITIONERS

v.

LUCIEN B. CALHOUN, ETC., ET AL.

ON WRiT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The United States operates thousands of ocean-going

vessels and aircraft in the course of its governmental and

military activities. The United States also is responsible

for assuring that safe conditions exist within many

navigable areas accessible to private boats, such as the

waters surrounding United States naval stations, and to

that end prepares nautical charts, dredges channels, and

operates locks, dams, lighthouses, and buoys. The United

States has waived its sovereign immunity from civilian

suits arising within admiralty jurisdiction and is subject

to wrongful death actions in much the same manner as

private parties. See Suits in Admiralty Act §§ 1-12, 46

(1)

2

U.S.C. App. 741-752; Public Vessels Act §§ 1-9, 46 U.S.C.

App. 781-789. The United States has a strong interest

in encouraging fair, uniform, and harmonious remedies

for the redress of wrongful death on navigable waters.

The Court requested the views of the United States in

Moragne v. States Marine Lines, Inc., 398 U.S. 375

(1970), a case raising issues closely related to the first

question on which certiorari was granted in this case.

STATEMENT

1. On July 6, 1989, while vacationing with her parents

at a resort hotel in Puerto Rico, 12-year-old Natalie

Calhoun, the daughter of respondents Lucien B. and

Robin L. Calhoun, rented a Yamaha jet-ski watercraft

known as a “Wavejammer.” While riding the Wavejam-

mer, Natalie ran into a vessel anchored in the waters off

the hotel frontage and was killed. Pet. App. A3-A4.

Respondents, individually and as the administrators

of their daughter’s estate, brought suit in United States

District Court for the Eastern District of Pennsyl-

vania against petitioners Yamaha Motor Company,

Ltd., and Yamaha Motor Corporation, U.S.A. (Yamaha),

respectively the manufacturer and distributor of

the Wavejammer. Respondents sought recovery under

Pennsylvania’s wrongful death statute (42 Pa. Cons. Stat.

Ann. § 8301 (1982 & Supp. 1995)) and its survival statute

(id. § 8302 (1982 & Supp. 1995)), alleging theories of

negligence, strict liability, and breach of implied war-

ranties of merchantability and fitness for purpose.

Respondents sought damages for lost future earnings,

loss of society, loss of support and services, and funeral

expenses, along with punitive damages. Respondents’

complaint invoked federal jurisdiction both on the basis of

3

diversity of citizenship (28 U.S.C. 1832)' and admiralty

(28 U.S.C. 1333). Pet. App. A4-A5.

Yamaha moved for partial summary judgment, argu-

ing that the damages recoverable for Natalie’s death, if

any, are governed by the general federal maritime cause

of action recognized in Moragne v. States Marine Lines,

Inc., 398 U.S. 375 (1970), and that, where that cause of

action applies, it ousts state remedies. Yamaha further

argued that, under the federal maritime cause of action,

only Natalie’s funeral expenses cuuld be compensable as

an element of damages. Pet. App. A5 & n.3. Respon-

dents replied with alternative arguments that state

remedial statutes may be applied to Natalie’s death, but

that, even if they do not apply, the federal maritime

cause of action permits the award of the damages that

respondents had sought. Jd. at A55-A56.

2. The district court granted partial summary judg-

ment to Yamaha. Pet. App. A52. It agreed with Yamaha

that the federal maritime cause of action applies to

respondents’ claims arising out of Natalie’s death, id. at

A56-A58, and that state remedies do not apply. Jd. at

A59-A65. The court reasoned that allowing state reme-

dies to govern maritime deaths would be inconsistent

with this Court’s goal of having the causes of action

applicable to such deaths be federally defined ones “of

national architecture.” Jd. at A63-A64. The court held,

however, that in defining the federal maritime remedy

and the damages available thereunder, courts may

consider how States generally have responded to the

problem of wrongful death, in addition to how the Death

on the High Seas Act (DOHSA), 46 U.S.C. App. 761 et.

1 Respondents are citizens of Pennsylvania. Yamaha Motor

Corporation, U.S.A., is a California corporation, and Yamaha Motor

Company, Ltd., is a Japanese corporation. Pet. App. A4 n.2.

seq., which applies to deaths that occur more than three

miles offshore, and the Merchant Marine Act, 1920

(Jones Act), 46 U.S.C. App. 688, which applies to the

deaths of seamen, have addressed that situation. Pet.

App. A65-A66. The court held that loss of society and

loss of support are recoverable under the federal

maritime remedy, but that lost future earnings and

punitive damages are not, and accordingly granted

Yamaha’s motion for summary judgment with respect to

those damages. Jd. at A67-A72.

On Yamaha’s motion, the district court certified for an

interlocutory appeal the portion of its order denying

summary judgment to Yamaha on the loss of society

claim, finding the question whether such damages are

recoverable under federal law to be a close one and “that

an immediate appeal from the order may materially

advance the ultimate termination of the litigation.” Pet.

App. A73 (quoting 28 U.S.C. 1292(b)); Pet. App. A77. On

respondents’ motion, the court amended its certification

to add to it the portions of its order dismissing respon-

dents’ claims for future earnings and punitive damages.

Id. at A78-A79, A80-A83.

3. The court of appeals did not address the questions

that the district court had certified. Instead, the court

held that it was necessary first to consider the premise

underlying the district court’s dismissal of respondents’

damages claims that, in cases arising out of the deaths of

non-seamen in territorial waters, the federal maritime

cause of action displaces applying state remedies. Pet.

App. A4, A6-A7. That premise, the court held, was

wrong. It held that whether state remedies are displaced

by federal law turns on whether those remedies

“significant[ly] conflict with federal policy.” Id. at A9;

see also id. at All, Al4.

5

The court of appeals held that neither a state wrong-

eath statute nor a state survival statute as applied

to the death of a non-seaman in territorial waters poses

such a conflict. The court noted that such fatalities are

covered neither by DOHSA nor the Jones Act (Pet. App.

A28), and that this Court’s decisions had not shown

“great hostility to the operation of state statutes in

providing rules of decision in admiralty cases” (id. at

A25). The court discounted the federal interest in

uniform remedies for maritime death, because of “the

weakness with which the principle of uniformity * * *

has been actually applied” in the context of maritime

deaths. Jd. at A26.

Turning to the state causes of action at issue, the court

held that remedies provided by state survival actions are

not displaced, because the federal maritime cause of

action as recognized in Moragne is for wrongful death,

not survival. Pet. App. A28-A29.2 The court found the

issue of displacement of state wrongful death remedies

“more difficult.” Jd. at A32, A34. However, the court

held that state remedies are not displaced, because the

federal maritime cause of action is not a “clearly articu-

lated federal statutory scheme[]” (id. at A35), because

relying on DOHSA’s preemptive effect would effectively

2 The court of appeals did not address the possibility that the

federal maritime cause of action includes: some survival damage

elements, See Miles v. Apex Marine Corp., 498 U.S. 19, 34 (1990)

(leaving that question open). The court found inconclusive the fact that

DOHSA contains no survival provision, because DOHSA does not

apply to deaths within territorial waters. Although the Jones Act

contains a survival provision, the fact that survival damages under the

Jones Act are limited to losses suffered during the decedent’s lifetime

did not restrict respondents from seeking damages based on Natalie’s

lost future earnings, because “the Jones Act applies only to seamen.”

Pet. App. A29-A31.

apply DOHSA “in an area (maritime deaths in state

territorial waters) in which Congress explicitly intended

DOHSA to have no such effect” (id. at A38), and be

cause preclusion of state remedies was not needed

to further Moragne’s goal of filling gaps in remedial

coverage (id. at A37). The court also viewed Section 7 of

DOHSA, 46 U.S.C. App. 767, as implicitly preserving

concurrent state remedies for deaths in territorial

waters. Pet. App. A37-A38. The court of appeals left for

remand the issue whether respondents’ state-law claims

are governed by the laws of Pennsylvania (the forum

state) or Puerto Rico (the site of the accident). Jd. at

A42.

SUMMARY OF ARGUMENT

I. This Court has long emphasized the importance of

uniform maritime remedies and the consequent need for

a single, federal remedial standard to apply where

federal maritime law governs. In particular, in the area

of maritime tortious personal injury not resulting in

death, the Court has held that the interest in maritime

uniformity precludes state remedies from applying.

Until recently, however, the area of maritime wrongful

death raised peculiar problems because general maritime

law did not recognize a remedy for wrongful death. To

fill the void caused by the absence of applicable federal

law, admiralty courts adopted state-law cause of action

and remedies. The decision in Moragne v. States Marine

Lines, Inc., 398 U.S. 375 (1970), however, ended this

regime by recognizing a general federal maritime cause

of action for wrongful death.

After Moragne, there is no longer any justification for

the historical anomaly of applying state-law remedies to

maritime deaths. On the contrary, allowing state reme-

dies to supplement the federal maritime remedy would

create “anomalies” and “incongruit[ies}” in remedial

coverage similar to those that Moragne identified as a

principal reason for recognizing a federal maritime cause

of action. 398 U.S. at 395. Both the Death on the High

Seas Act (DOHSA), which applies to deaths outside the

three-mile territorial limit, and the Jones Act, which

applies to deaths of seamen, displace state remedies

where they apply. Application of state-law remedies

where those statutes do not apply (i.e., to the deaths of

non-seamen in territorial waters) would accord a broader

range of remedies to some survivors of such decedents

for no justifiable reason. It would also be inconsistent

with this Court’s teaching that the federal maritime

cause of action is to be developed with DOHSA and the

Jones Act serving as primary guides.

Far from being applied with “weakness,” the prin-

ciple of remedial uniformity has served as the basis for

this Court’s attempts in recent years to harmonize the

federal maritime remedy with remedies under DOHSA

and the Jones Act. Nor does Section 7 of DOHSA de-

monstrate Congress’s intent to preserve state remedies

against a federal maritime cause of action. Finally, there

is no basis for concluding that the federal maritime cause

of action does not apply to “recreational boaters.”

II. The court of appeals correctly held that it had

jurisdiction under 28 U.S.C. 1292(b) to address the issue

of the applicability of state remedies. The text of Section

1292(b) makes clear that a court of appeals has juris-

diction to review the order certified by the district court,

not merely the question or questions of law that the

district court has identified as controlling. That

conclusion is supported by United States v. Stanley, 488

U.S. 669 (1987), by every federal court of appeals to have

addressed the issue, and by the purpose of Section 1292(b)

to provide immediate appellate review of orders before

they result in fruitless litigation and wasted expense.

ARGUMENT

L THE GENERAL FEDERAL MARITIME CAUSE

OF ACTION FOR WRONGFUL DEATH RE-

COGNIZED IN MORAGNE v. STATES MARINE

LINES, INC., SUPPLIES THE EXCLU-

SIVE REMEDY IN CASES INVOLVING THE

DEATHS OF NON-SEAMEN IN TERRITORIAL

WATERS

The question in this case is whether, in light of the

recognition of a general federal maritime cause of action

in Moragne v. States Marine Line, Inc., 398 U.S. 375

(1970), admiralty courts may continue, as they did prior

to Moragne, to apply state-law remedial statutes in cases

involving the deaths of non-seamen in territorial waters.

In the view of the~United States, plaintiffs may not

supplement the remedies provided by the federal cause

of action recognized in Moragne by applying remedies

available under a state wrongful death or survival

statute. Applying such state statutes would be

inconsistent with the general framework of admiralty

law, which emphasizes uniform remedies for maritime in-

juries, and would frustrate Moragne’s goal of ending the

process by which the law yielded “different results for

breaches of duty in situations that cannot be differen-

tiated in policy.” Jd. at 4065.

A. The “tortuous development of the law of wrongful

death in the maritime context,” Offshore Logistics, Inc.

v. Tallentire, 477 U.S. 207, 212 (1986), begins with The

Harrisburg, 119 U.S. 199 (1886), which held that, al-

though general maritime law provides a cause of action

for tortious personal injury not resulting in death, it does

9

not provide a cause of action for wrongful death. The

Court reasoned that, because the common law at the time

supplied no civil action for an injury which results in

death on the land, no different rule should apply with

respect to maritime deaths. Id. at 213; see Tallentire, 477

U.S. at 212; Moragne, 398 U.S. at 380.

The rule of The Harrisburg left remediless persons

killed either within state territorial waters or on the high

seas. “Unable to tolerate th{e] archaism” underlying The

Harrisburg, some admiralty courts began to allow re-

covery for deaths within state territorial waters by

adopting state statutes that permitted such recovery.

Tallentire, 477 U.S. at 212. In addition, this Court held in

The Hamilton, 207 U.S. 398 (1907), that admiralty courts

could apply state wrongful death laws to deaths on the

high seas. However, “probably because most state wrong-

ful death statutes were not meant to have application io

the high seas,” the holding of The Hamilton “did little to

fill the vacuum.” Moragne, 398 U.S. at 393 & n.10; see

also Tallentire, 477 U.S. at 212-214.

In 1920, Congress enacted two laws that together filled

much of the void left by The Harrisburg. The first,

DOHSA, provides a recovery for death “caused by

wrongful act, neglect or default occurring on the high

seas.” 46 U.S.C. App. 761. DOHSA displaces state court

remedies where it applies. Tallentire, 477 U.S. at 232.

The second, the Jones Act, an omnibus statute to pro-

mote the welfare of American seamen, in its pertinent

part accords seamen the same remedies for death as are

provided in the Federal Employers’ Liability Act, 45

U.S.C. 51-60, whether such death occurs in territorial

waters or on the high seas. Like DOHSA, the Jones Act

displaces state wrongful death remedies where it applies.

See Gillespie v. United States Steel Corp., 379 U.S. 148,

155 (1964) (Jones Act is “of general application intended

10

to bring about the uniformity in the exercise of admiralty

jurisdiction required by the Constitution, and necessarily

supersedes the application of the death statutes of the

several States”) (quoting Lindgren v. United States, 281

U.S. 38, 44 (1930)); accord Northern Coal & Dock Co. v.

Strand, 278 U.S. 142, 147 (1928); Panama R.R. v.

Johnson, 264 U.S. 375, 392 (1924).

The federal courts, however, continued to struggle

with that portion of The Harrisburg’s legacy that was

undisturbed by Congress—the absence of a federal

maritime cause of action for wrongful death of non-

seamen occurring in the territorial waters. In 1921, this

Court held that, in such cases, admiralty courts could

adopt the cause of action for wrongful death provided by

the State in whose waters a death occurred:

[wJhere death upon such waters results from a mari-

time tort committed on navigable waters within a

State whose statutes give a right of action on account

of death by wrongful act, the admiralty courts will

entertain a libel m personam for the damages sus-

tained by those to whom such right is given. The

subject is maritime and local in charact r and the

specified modification of or supplement to the rule

applied in admiralty courts, when following the

common law, will not work material prejudice to the

characteristic features of the general maritime law,

nor interfere with the proper harmony and uni-

formity of that law in its international and interstate

relations.

Western Fuel Co. v. Garcia, 257 U.S. 238, 242 (1921).

However, over the next 50 years, the Court rendered a

series of maritime decisions, which it ultimately found

difficult to reconcile, attempting to apply state wrongful

death statutes in admiralty cases. See Goett v. Union

11

Carb. 'e Corp., 361 U.S. 340 (1960); Hess v. United

States, 361 U.S. 314 (1960); The Tungus v. Skovgaard,

358 U.S. 588 (1959); Just v. Chambers, 312 U.S. 383

(1941). Much of the problem resulted from the holding

in Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946), that

the traditional admiralty duty of shipowners to provide

seamen with a seaworthy ship extends to longshoremen,

who are not seamen.*® Because unseaworthiness is a

“species of liability without fault,” id. at 94, state wrong-

ful death statutes that provided recovery only for

negligent conduct were either held not to encompass

claims of unseaworthiness or, if so held, were manifestly

ill-suited to those claims. See G. Gilmore & C. Black, The

Law on Admiralty § 6-31, at 365-367 (2d ed. 1975)

(attempts to apply state wrongful death laws to claims of

unseaworthiness were a “jurisprudential disaster”).

In Moragne, the Court revisited The Harrisburg.

Moragne, a longshoreman, had been killed while working

on a ship within Florida territorial waters. His widow’s

claim for relief based on the ship’s unseaworthiness had

been dismissed, because neither federal statute or general

maritime law provided a wrongful death action where

the death had occurred in territorial waters, and because

Florida wrongful death law required a showing of

negligence and therefore did not apply to cases of death

caused by non-negligent unseaworthiness. The Court

overruled The Harrisburg and held that “an action does

lie under general maritime law for death caused by

violation of maritime duties,” including the duty to

8 That holding was made obsolete by the 1972 amendments to the

Longshore and Harbor Workers’ Compensation Act (LHWCA), 33

U.S.C. 905(b), which precluded longshoremen from taking advantage of

the doctrine of unseaworthiness. See Miles v. Apex Marine Corp., 498

U.S. 19, 30 n.1 ‘1990).

12

provide a seaworthy ship. Moragne, 398 U.S. at 409. The

Harrisburg had “rested on a most dubious foundation

when announced,” the Court observed, and with the later

adoption of wrongful death statutes by all 50 States and

by Congress in various enactments including DOHSA and

the Jones Act, “it ha{d] become an increasingly unjusti-

fiable anomaly.” Jd. at 404; see also id. at 379-393.

A federal maritime cause of action was also needed, the

Court stated, to eliminate three unjustifiable “anomalies”

or “incongruit[{ies]” in existing law applicable to maritime

death. Moragne, 398 U.S. at 395-396. First, victims of

unseaworthiness within territorial waters could recover

if they had been injured but not if they had-been killed.

Id. at 395.4 Second, because unseaworthiness claims are

cognizable under DOHSA, an identical breach of the du-

ty to provide a seaworthy ship would produce liability

for high-seas fatalities but not for fatalities within

the territorial waters of a State whose tort remedies did

not encompass claims of unseaworthiness. Jbid. Third,

because the Jones Act precludes state remedies, a sea-

man would not receive a remedy for death in territor-

ial waters caused by unseaworthiness, whereas a long-

shoreman would enjoy such a remedy if one were

available under state law. Jd. at 395-396. The Court

envisioned that the newly recognized federal cause of

action for wrongful maritime death would eliminate such

“litigation-spawning confusion” and “supplant the

present disarray in this area with a rule both simpler and

* The Court’s reference was to seamen, who enjoyed a federal cause

of action for unseaworthiness where they were injured, see Mahnich v.

Southern S.S. Co., 321 U.S. 96, 99 (1944), but not where they were

killed. See Gillespie v. United States Steel Corp., 379 U.S. 148, 155

(1964); Kernan v. American Dredging Co., 355 U.S. 426, 428-430 (1958);

G. Gilmore & C. Black, supra, § 6-32, at 368.

13

more just” than that of The Harrisburg. The new

federal cause of action would also end the process by

which the law yielded “different results for breaches of

duty in situations that cannot be differentiated in

policy,” and assure the “uniform vindication of federal

policies, removing the tensions and discrepancies that

have resulted from the necessity to accommodate state

remedial statutes to exclusively maritime substantive

concepts.” Id. at 401, 404-4065.

B. The Court had no occasion in Moragne to consider

whether, with the recognition of a federal cause of

action, state wrongful death and survival statutes may

continue to be used to determine the remedies available

in cases involving the deaths of non-seamen in territorial

waters. However, the courts of appeals to address that

issue after Moragne (with the exception of the court of

appeals below) have uniformly—and in our view,

correctly—held that such remedies are not applicable.°

The Court in Moragne sought to “give effect to the

constitutionally based principle that federal admiralty

law should be ‘a system of law coextensive with, and

operating uniformly in, the whole country.’” 398 U.S. at

402 (quoting The Lottawanna, 88 U.S. (21 Wall.) 558, 575

(1874)). See Romero v. International Terminal Operating

Co., 358 U.S. 354, 378, 374 (1959) (although “State and

5 See Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084, 1089

(2d Cir. 1998), cert. denied, 114 S. Ct. 1060 (1994); Nelson v. United

States, 689 F.2d 469, 473 (9th Cir. 1980); In re S/S Helena, 529 F.2d 744,

753 (5th Cir. 1976); see also Preston v. Frantz, 11 F.3d 357, 358 (2d Cir.

1998) (federal maritime remedy preempts state survival statute), cert.

dismissed, 115 S. Ct. 31 (1994); Evich v. Morris, 819 F.2d 256, 257-258

(9th Cir.) (same), cert. denied, 484 U.S. 914 (1987); Texaco Ref. & Mktig.,

Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61, 64 (Tex.) (federal

remedy preempts state wrongful death and survival actions), cert.

denied, 502 U.S. 908 (1991).

14

Federal Governments jointly exert regulatory powers”

over maritime law, “state law must yield to the needs of a

uniform federal maritime law when this Court finds

inroads on a harmonious system”); The Lottawanna, 88

U.S. (21 Wall.) at 575 (“It certainly could not have been

the intention to place the rules and limits of maritime law

under the disposal and regulation of the several States,

as that would have defeated the uniformity and con-

sistency at which the Constitution aimed on all subjects of

a commercial character affecting the intercourse of the

States with each other or with foreign states.”).© Adop-

tion of state law was necessary, prior to Moragne, in

order to fill a remedial gap where wrongful conduct

caused death rather than injury. After Moragne, how-

ever, there is no longer a need to use state law in this

fashion, and the general principle of uniformity in

admiralty should be enforced.

6 See also, e.g., Kossick v. United Fruit Co., 365 U.S. 731 (1961)

(holding that a maritime contract is not subject to a state statute

of frauds); Maryland Casualty Co. v. Cushing, 347 U.S. 409 (1954)

(holding that a state direct action statute may not be applied against a

maritime insurer); Union Fish Co. v. Erickson, 248 U.S. 308 (1919)

(holding that a maritime contract is not subject to a state statute of

frauds), The Roanoke, 189 U.S. 185 (1903) (holding that a State may not

create a maritime lien against an out-of-state ship for costs incurred in

repair). The admiralty cases upon which the court of appeals in this

case relied (Pet. App. A8-A9) involved state rules of decision that were

procedural in nature and did not “work [any] ‘material prejudice to [a]

characteristic featur{e] of the general maritime law.’” American

Dredging Co. v. Miller, 114 S. Ct. 981, 987 (1994) (upholding Louisiana

law preventing forum non conveniens doctrine from applying in

maritime law cases brought in state court); see also id. at 990 (Souter,

J., concurring) (determination whether a state rule is “substantive” or

“procedural” will generally determine whether it is preempted under

federal maritime law).

. =

15

Of particular relevance here, where tortious personal

injuries other than death have been inflicted within mari-

time jurisdiction, the interest in maritime uniformity has

long been held to preclude the application of state

remedies. A maritime tort is “a type of action which

the Constitution has placed under national power to

control in ‘its substantive as well as its procedural

features’” Pope & Talbot, Inc. v. Hawn, 346 U.S. 406,

409 (1953) (quoting Panama R.R., 264 U.S. at 386.

Accordingly, federal maritime law—rather than state

law—determines the remedies for injury even when the

tort has occurred within state territorial waters or when

the plaintiff has invoked state court or diversity

jurisdiction. See, e.g., Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625, 628 (1959); Pope & Talbot,

346 U.S. at 409-411. Likewise, before the enactment of

the Jones Act, the Court rejected an injured seaman’s

argument that he was entitled to a state common law

remedy of full indemnification rather than the applicable

maritime remedy of maintenance and cure. See

Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 382

(1918). The Court has also held that a longshoreman

injured while unloading a ship, having been engaged in

maritime activity, must invoke federal remedies rather

than resort to state worker’s compensation laws. Other-

wise, application of the laws of different States would

produce varying remedies in ports across the country

A.

7 See also, ¢.g., Messel v. Foundation Co., 274 U.S. 427, 484 (1927)

(requiring application of federal maritime law in a personal injury

action brought in state court); Robins Dry Dock & Repair Co. v. Dahl,

266 U.S. 449, 457 (1925) (same); Carlisle Packing Co. v. Sandanger, 259

U.S. 255, 259 (1922) (same); Workman v. New York City, 179 U.S. 552,

557-558 (1900) (refusing to recognize a state law claim of municipal

immunity in a negligence action brought in admiralty court).

16

and result in the “destruction of the very uniformity in

respect to maritime matters which the Constitution was

designed to establish.” Southern Pac. Co. v. Jensen, 244

U.S. 205, 216-217 (1917).°

The adoption by admiralty courts of state death

statutes before Moragne was therefore an historical

anomaly. Had the federal maritime remedy for death

been recognized in the nineteenth century, there can be

little doubt that it would have been treated as an exclu-

sive remedy under the principles of maritime uniformity

that guided Chelentis, Jensen, and The Lottawanna.

State remedies were adopted by admiralty courts only

because, as long as The Harrisburg survived, wrongful

death was “untouched” by general maritime law,

Western Fuel Co., 257 U.S. at 240, leaving it to state

statutes to fill the remedial vacuum.

With the demise of The Harrisburg and the recogni-

tion of a federal maritime cause of action, there is no

8 Congress attempted to override the result in Jensen by

authorizing the application of state worker's compensation statutes to

maritime injuries. But this Court invalidated that attempt as an

unconstitutional delegation of federal maritime power, holding that

Congress could not authorize the States to prescribe rules governing

maritime injuries that “would inevitably destroy the harmony and

uniformity which the Constitution not only contemplated but actually

established.” Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 164 (1920);

see also Washington v. W.C. Dawson & Co., 264 U.S. 219, 227-228

(1924) (invalidating later legislation on same ground). The Court did

recognize an exception to Jensen, applicable in cases where “the

application of the local law [would not} materially affect” the

uniformity of maritime law. Grant Smith-Porter Ship Co. v. Rohde,

257 U.S. 469, 477 (1922). Ultimately, Congress passed the Longshore

and Harbor Workers’ Compensation Act, 33 U.S.C. 901 et seq., which

prescribes exclusive federal standards for compensation to injured

longshoreworkers and related maritime employees. See generally

Director, OWCP v. Perini N. River Assocs., 459 U.S. 297, 306-324 ( 1983).

17

longer any reason to allow state remedies to apply to

maritime fatalities. On the contrary, to allow state

remedial schemes providing a more generous measure of

damages than the federal remedy to supplement that

remedy would create at least three unjustifiable

“anomalies” and “incongruit[ies]” (Moragne, 398 U.S. at

395-396) similar to those that Moragne sought to

eliminate. First, because federal remedies for non-fatal

injuries within maritime jurisdiction preclude the

application of state remedies, see pages 15-16, supra,

identical breaches of maritime duties would be subject to

different measures of damages, solely because the victim

of one breach was killed whereas the victim of another

was injured. Second, because DOHSA precludes state

remedies for wrongful death on the high seas, bene-

ficiaries of persons killed in territorial waters would have

access to supplemental state remedies but beneficiaries of

persons killed in identical accidents on the high seas

would not. Third, because the Jones Act precludes state

remedies for the wrongful death of seamen, beneficiaries

of non-seamen would likewise in some cases be eligible for

a broader range of remedies than beneficiaries of seamen.

That result would seem inconsistent with the “special

solicitude” that admiralty law has traditionally accorded

seamen. See Moragne, 398 U.S. at 387.°

° In Moragne, the Court also expressed dissatisfaction with the

“difficult litigation” that had resulted from the need to apply state

statutes to peculiarly maritime duties, such as that of seaworthiness.

398 U.S. at 408. The duty of seaworthiness presently extends only to

seamen, as a result of legislation in 1972 that rendered that doc-

trine inapplicable to cases involving longshoremen. See note 3, supra.

However, the Court’s broader concern with the mismatch between state

tort statutes and uniquely maritime duties and concepts continues to

counsel against applying state remedies in this area. See Moragne ,

398 U.S. at 401 n.15 (“Federal law, rather than State, is the more

18

Application of state-law remedies in this area would,

finally, be inconsistent with the principle that the federal

maritime remedy is to be developed with its statutory

cousins, DOHSA and the Jones Act, serving as the

“primary guide.” See Mobil Oil Corp. v. Higginbotham,

436 U.S. 618, 624 & n.19 (1978); Miles v. Apex Marine

Corp., 498 U.S. 19, 27 (1990) (“(A]n admiralty court

should look primarily to these legislative enactments for

policy guidance,” because Congress’s enactments “both

direct and delimit our actions”). Mobil Oil and Miles

looked to DOHSA and the Jones Act for the purpose of

answering questions relating to the damages recoverable~

under the federal maritime cause of action. The

applicability of state remedies to that cause of action

should similarly be patterned upon DOHSA and the

Jones Act, both of which displace state remedies where

they apply.”

appropriate source of a remedy for violation of the federally imposed

duties of maritime law”).

10 The Court declined to grant certiorari in this case on the question

of the damages available under the federal maritime remedy, see 115

S. Ct. 1998 (1995), and that question is distinct from the question of

applicability of state remedies. Several cases in the Court have

involved the extent of those federal remedies. The Court initially held

that, in addition to pecuniary losses (e.g., loss of support), survivors of a

person wrongfully killed may recover damages for loss of society. See

Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573 (1974). More recent ly, the

Court has held that such damages are not recoverable in cases to which

DOHSA (Mobil Oil) or the Jones Act (Miles) would apply, so as to

respect Congress’s judgment that only pecuniary losses should be

recoverable in cases governed by those statutes. Miles also stated that

“(t]he holding of Gaudet applies only in territorial waters, and it

applies only to longshoremen,” see 498 U.S. at 31, while noting that

subsequent legislation relating to longshoremen has rendered Gaudet

inapplicable on its facts, see id. at 30 n.1. The Court has left open the

question whether the federal maritime cause of action has a “survival”

19

C. In holding that state remedial statutes may apply

to the deaths of non-seamen in territorial waters, the

court of appeals relied on three factors, apart from the

fact (Pet. App. A28) that Congress has not expressly

preempted such claims. First, the court discounted the

federal interest in the uniformity of remedies for

maritime death, on the ground that this Court has

applied the principle of uniformity “weak[ly].” Jd. at

A26. The sole disuniformity that the court of appeals

identified, however, is the fact that loss-of-society

damages are available under the federal maritime cause

of action, see Sea-Land Servs., Inc. v. Gaudet, 414 U.S.

573 (1974), but not under DOHSA or the Jones Act. Pet.

App. at A21, A26. The continued vitality of Gaudet,

however, is open to question, as the Court in Miles

appears to have confined Gaudet to cases involving

longshore workers, observing that its ruling would

“restore a uniform rule applicable to all actions for the

wrongful death of a seaman, whether under DOHSA, the

Jones Act, or general maritime law.” 498 U.S. at 33; see

dimension allowing losses incurred by the decedent himself (e.g., pain

and suffering, future income, medical expenses) to be recovered. See

Miles, 498 U.S. at 34; id. at 35 (noting that Jones Act contains a

survival provision but that DOHSA does not). However, the Court has

held, even if a federal maritime action seeking survival damages could

proceed, the lost future earnings of a seaman would not be recoverable.

See id. at 34. The Court reasoned that such damages are not

recoverable under most state survival laws or under the Jones Act

(which limits recovery to losses suffered during the decedent's lifetime),

that lost-future-earnings damages often duplicate survivors’ loss-of-

support damages, and that recovery of lost future earnings is not

“consistent with the general principles of maritime tort law.” Jd. at 35-

36. See Wahlstrom, 4 F.3d at 1091-1094 (holding, based on analysis in

Miles, that the estates of non-seamen are barred from recovering non-

pecuniary damages and lost future earnings damages in a general

federal maritime action).

20

also note 10, supra. It is true that the remedies

prescribed by Congress in DOHSA and the Jones Act do

not themselves mirror each other in all particulars (e.g.,

the existence of a survival provision in the Jones Act but

not in DOHSA). This Court, however, is free to shape

the nonstatutory federal maritime remedy (including its

preclusive effect over state law) to promote the interest

in uniformity. In any event, any dissonance between the

separate “national rule[s]” provided by DOHSA and the

Jones Act, Mobil Oil, 436 U.S. at 624 n.18, cannot justify

continuation of the much greater disuniformity produced

by allowing fifty different state remedial schemes to

govern maritime deaths.

The court of appeals also interpreted Section 7 of

DOHSA, 46 U.S.C. App. 767, as signifying congressional

intent to preserve state wrongful death remedies in

territorial waters. Pet. App. A37-A38; id. at A34 n.34.

That interpretation was incorrect. Section 7 provides:

The provisions of any State statute giving or

regulating rights of action or remedies for death shall

not be affected by this chapter. Nor shall this chap-

ter apply to the Great Lakes or to any waters within

the territorial limits of any State, or to any navigable

waters in the Panama Canal Zone.

As the Court held in Tallentire, Section 7 serves merely

“as a jurisdictional savings clause” (emphasis added): It

ensures that state courts would not be deprived, by

virtue of DOHSA, of the right to continue to entertain

suits arising out of maritime deaths. 477 U.S. at 221.

Section 7 does not suggest that state remedies applicable

to deaths in territorial waters would continue to apply

notwithstanding the creation of the general federal

maritime remedy for wrongful death in Moragne. In-

deed, the language of Section 7 seems inconsistent with a

21

claim that it was intended to bear on the effect of later

common law developments in federal maritime law. See

DOHSA § 7, 46 U.S.C. App. 767 (“The provisions of any

State statute * * * shall not be affected by this

chapter.”) (emphasis added).

Finally, the court of appeals suggested that the federal

maritime cause of action for wrongful death might not

extend to the deaths of “recreational boater{s]” in

territorial waters, or that if it did, that it might simply

be defined in those waters by the relevant State’s

remedies. See Pet. App. A10 n.7, A32 n.32; see also id. at

A30 n.29 (defining a “recreational boater” as any person

not covered by the Jones Act as a seaman). The court of

appeals emphasized, however, that its holding did not

turn on that theory. See id. at Al0 n.7, A33 n.33, A34

n.34, A387 (stating that, even if the federal maritime

cause of action applies to such deaths, concurrent. state

causes of action are not displaced).

To the extent that the court of appeals thus sought to

limit the reach of (or to redefine) the federal maritime

remedy, it was in error. Admiralty jurisdiction applies

to recreational boating accidents on navigable waters,

such as the fatal collision in this case between a jet-ski

watercraft and an anchored vessel, as the court of

appeals acknowledged. Pet. App. A7 n.5. See Foremost

Ins. Co. v. Richardson, 457 US. 668, 675-677 (1982)

(accident between two recreational vessels on navigable

territorial waters bears sufficient relationship to tradi-

tional maritime activity to fall within scope of federal

admiralty jurisdiction); Sisson v. Ruby, 497 U.S. 358, 365-

367 (1990) (multi-boat fire caused by defective appliance

aboard pleasure boat docked at marina falls within scope

of admiralty jurisdiction); see also Jerome B. Grubart,

Inc. v. Great Lakes Dredge & Dock Co., 115 S. Ct. 1043,

1049-1053 (1995). There is no basis for concluding that

22

the federal maritime cause of action applies only to those

territorial-waters fatalities within admiralty jurisdiction

that involve a seaman, or that, in territorial waters, the

federal remedy is merely a vehicle for adopting state law

when a seaman is not involved. On the contrary,

Moragne itself noted that the recognition of a federal

remedy was an attempt to advance the goal of making

federal admiralty law “a system of law coextensive with,

and operating uniformly in, the whole country.” 398

U.S. at 402 (quotations omitted); see also Mobil Oil, 436

U.S. at 624 n.18 (referring to standard governing

fatalities in territorial waters as a “national rule”); Miles,

498 U.S. at 30 (“There is * * * little question that

Moragne intended to create a general maritime wrongful

death action applicable beyond the situation of longshore-

men”).”

An approach that would restrict the federal maritime

cause of action to certain categories of decedents (those

who were not “recreational boaters”) would also frustrate

important maritime policies. Under such an approach,

the same commercial vessel would have its conduct

measured under federal standards were it to collide

tortiously with another commercial vessel, but~- under

state law were it to collide in identical fashion with

a pleasure boat. Exposure to divergent standards of

liability or measures of damages would have a significant

potential to disrupt maritime commerce. See Foremost,

457 U.S. at 674-675 (“The federal interest in protecting

maritime commerce * * * can be fully vindicated only

if all operators of vessels on navigable waters are subject

to uniform rules of conduct”); Grubart, 115 S. Ct. at

'! In cases involving recreational boating accidents on navigable

waters, the lower federal courts have consistently applied the general

federal maritime cause of action. See Pet. 11-12 & n.15 (citing cases).

23

1047. Moreover, because the use of state remedies in

cases involving non-seamen decedents would often yield

damages exceeding those in cases involving seamen

decedents, the court of appeals’ approach would be incon-

sistent with the historic admiralty policy of according

“a special solicitude” for the welfare of those who

“undert{ake] to venture upon hazardous and unpredict-

able sea voyages.” Moragne, 398 U.S. at 387.”

The court of appeals also interpreted selected statements in

Gaudet, Miles, and Moragne as endorsing the aplicability of state

causes of action. Gaudet’s survey of the remedies available in state

wrongfuldeath actions, however, does not connote “approv(al] of the

application of state statutes in maritime death cases” (Pet. App. A21,

citing 414 U.S. at 587-588), but rather, reflects an attempt (like that

undertaken in Moragne) to use state law as a whole as one guide in

shaping the federal maritime remedy. See also Miles, 498 U.S. at 27

(cited at Pet. App. A25). And Moragne’s observation that Congress had

not affirmatively shown an intent to preclude a federal maritime death

remedy does not suggest that affirmative legislative action is needed if

State law is no longer to be used where the new federal maritime

remedy applies (Pet. App. A20, citing 398 U.S. at 393); rather, it merely

indicates that Congress had left the Court free to fashion a general

maritime remedy.

24

Il. THE COURT OF APPEALS HAD JURIS-

DICTION UNDER 28 U.S.C. 1292(b) TO

ADDRESS THE ISSUE OF WHETHER STATE

REMEDIAL STATUTES MAY APPLY TO

RESPONDENTS’ LAWSUIT, BECAUSE THAT

QUESTION WAS RELEVANT TO THE

VALIDITY OF THE ORDER CERTIFIED BY

THE DISTRICT COURT

A. The Court has requested briefing on whether,

under 28 U.S.C. 1292(b), a court of appeals can “exercise

jurisdiction over any question that is included within the

order that contains the controlling question of law

identified by the District Court.” 115 S. Ct. 1998 (1995).

In the view of the United States, a court of appeals may

do so.

Section 1292(b) provides, in pertinent part:

When a district judge, in making in a civil action an

order not otherwise appealable under this section,

shall be of the opinion that such order involves a

controlling question of law as to which there is

substantial ground for difference of opinion and that

an immediate appeal from the order may materially

advance the ultimate termination of the litigation, he

shall so state in writing in such order. The Court of

Appeals * * * may thereupon, in its discretion,

permit an appeal to be taken from such order, if

application is made to it within ten days after the

entry of the order.

28 U.S.C. 1292(b) (emphasis added). The text of Section

1292(b) thus makes apparent that appellate jurisdiction

applies to the order that the district court has certified to

the court of appeals, and not merely to any question of

25

law that the district court may have identified in that

order. While a district court may be well-advised to

identify the question of law involved in its order that it

perceives to be controlling, nothing in Section 1292(b)

either requires it to do so, or conditions appellate juris-

diction on the district court’s having done so.

The decision in United States v. Stanley, 483 U.S. 669

(1987), reinforces the conclusion that it is the district

court’s order—and not the question of law the court may

formulate—that defines and delimits the court of appeals’

jurisdiction. In Stanley, the Court held that a court of

appeals lacks jurisdiction under Section 1292(b) to reach

beyond the certified order to address other orders that

had been entered in the case. The Court reasoned:

An appeal under this statute is from the certified

order, not from any other orders that may have been

entered in the case. Even if the Court of Appeals’

jurisdiction is not confined to the precise question

certified by the lower court (because the statute

brings the “order,” not the question, before the court),

that jurisdiction is confined to the particular order

appealed from.

Id. at 677 (emphasis added to clause in parentheses);

see also Swint v. Chambers County Comm’n, 115 S. Ct.

1203, 1211 (1995) (Stanley held that appellate review

under Section 1292(b) was limited to the “certified

order,” and barred review of “other, non-certified

orders”); Edwardsville Nat'l Bank & Trust Co. v.

Marion Lab., Inc., 808 F.2d 648, 650 (7th Cir. 1987)

(Section 1292(b) “is not a method of certifying questions.

The question is the reason for the interlocutory appeal,

but the thing under review is the order”). Consistent

with the Court’s discussion in Stanley, the courts of

26

appeals” and commentators” have held uniformly that

appellate jurisdiction extends under Section 1292(b) to

13 See, e.g., Walsh v. Ford Motor Co., 807 F.2d 1000, 1002 n.2 (D.C.

Cir. 1986), cert. denied, 482 U.S. 915 (1987); Armstrong v. Bush, 924

F.2d 282, 296 n.13 (D.C. Cir. 1991); Bersch v. Drexel Firestone, Inc., 519

F.2d 974, 994-995 (2d Cir.) (Friendly, J.), cert. denied, 423 U.S. 1018

(1975); Slade v. Shearson, Hammill & Co., 517 F.2d 398, 400 (2d Cir.

1974); United States v. Banco Cafetero Panama, 797 F.2d 1154, 1156-

1157 (2d Cir. 1986); Morse/Diesel, Inc. v. Trinity Indus., Inc., 859 F.2d

242, 249 (2d Cir. 1988); In re Joint E. & S. Dist. of N.Y. Asbestos Litig.,

897 F.2d 626, 635 (2d Cir. 1990); Nedd v. United Mine Workers, 400 F.2d

103, 104 (3d Cir. 1968); Johnson v. Alldredge, 488 F.2d 820, 822-823 (3d

Cir. 1973), cert. denied, 419 U.S. 882 (1974); Murphy v. Heppenstall Co.,

635 F.2d 233, 235 n.1 (3d Cir. 1980), cert. denied, 454 U.S. 1142 (1981);

Merican, Inc. v. Caterpillar Tractor Co., 713 F.2d 958, 962 n.7 (3d Cir.

1983), cert. denied, 465 U.S. 1024 (1984); Cipollone v. Liggett Group,

Inc., 789 F.2d 181, 187-188 (3d Cir. 1986), cert. denied, 479 U.S. 1043

(1987); In re School Asbestos Litig., 789 F.2d 996, 1002 (3d Cir.),

cert. denied, 479 U.S. 852, 915 (1986); Miller v. Bolger, 802 F.2d 660, 666-

667 (3d Cir. 1986); Ivy Club v. Edwards, 943 F.2d 270, 275 (3d Cir.

1991), cert. denied, 503 U.S. 914 (1992); Dailey v. National Hockey

League, 987 F.2d 172, 175 (3d Cir.), cert. denied, 114 S. Ct. 67 (1993);

Ducre v. Executive Officers of Halter Marine, Inc., 752 F.2d 976,

983n.16 (5th Cir. 1985); Easley v. Pettibone Michigan Corp., 990 F.2d

905, 912 (6th Cir. 1993); Nuclear Eng’g Co. v. Scott, 660 F.2d 241, 246

(7th Cir. 1981), cert. denied, 455 U.S. 993 (1982); Edwardsville Nat'l

Bank & Trust Co. v. Marion Labs., Inc., 808 F.2d 648, 650-651 (7th Cir.

1987); Peterson v. Sealed Air Corp., 902 F.2d 1232, 1233 (7th Cir. 1990);

Harley-Davidson, Inc. v. Minstar, Inc., 41 F.3d 341, 344 (7th Cir. 1994),

cert. denied, 115 S. Ct. 1401 (1995); Simon v. G.D. Searle & Co., 816

F.2d 397, 400 (8th Cir.), cert. denied, 484 U.S. 917 (1987); In re

Cinematronics, Inc., 916 F.2d 1444, 1448-1449 (9th Cir. 1990); Steering

Comm. v. United States, 6 F.3d 572, 576 (9th Cir. 1993); United States

v. Fleet Factors Corp., 901 F.2d 1550, 1554 n.2 (11th Cir. 1990), cert.

denied, 498 U.S. 1046 (1991); Aldridge v. Lily-Tulip, Inc. Salary

Retirement Plan Benefits Comm., 40 F.3d 1202, 1207 (11th Cir. 1994);

United States v. Connolly, 716 F.2d 882, 884-885 (Fed. Cir. 1983), cert.

denied, 465 U.S. 1065 (1984).

27

the order certified by the district court, and not just to

the question of law identified in that order.

Permitting the court of appeals to consider the va-

lidity of the certified order furthers Section 1292(b)’s

paramount goal of “providing an opportunity to review

orders before they result in fruitless litigation and wasted

expense.” Note, Interlocutory Appeals in the Federal

Courts under 28 U.S.C. § 1292(b), 88 Harv. L. Rev. 607,

609 (1975). Where an order suffers from a legal infirmity

unnoticed by the district court, a court of appeals should

not be disabled from identifying or correcting that

defect, and thereby from preventing fruitless litigation

from ensuing in the district court. It is true, that the

requirement of a final judgment often has that effect.

But with Section 1292(b), Congress fashioned a con-

sidered exception to the final-judgment rule, so as to

“materially advance the ultimate termination of the

litigation,” 28 U.S.C. 1292(b), and promote “expedition of

cases pending before the district courts.” S. Rep. No.

2434, 85th Cong., 2d Sess. 2 (1958).”

4 See, eg., 16 C. Wright, A. Miller, E. Cooper & E. Gressman,

Federal Practice and Procedure § 3929, at 144-145 (1977) (“the court of

appeals may review the entire order, either to consider a question

different than the one certified as controlling or to decide the case

despite the lack of any identified controlling question”) (footnotes

omitted); 9 J. Moore, B. Ward & J. Lucas, Moore’s Federal Practice

7 110.25{1], at 300 (2d ed. 1994) (“it is the order that is appealable, and

not the controlling question identified by the district court”); Note,

Interlocutory Appeals in the Federal Courts under 28 U.S.C. § 1292(b),

88 Harv. L. Rev. 607, 628-629 (1975).

© The fact that the court of appeals retains discretion under Section

1292(b) not to address a question in a certified order allows it to avoid

rendering an advisory opinion where the question of law identified by

the district court is, in the court of appeals’ view, irrelevant to the

validity of the order. See Edwardsville Nat'l Bank , 808 F.2d at 651 (“If

28

B. This case supplies an excellent illustration of the

wisdom of Congress’s decision in Section 1292(b) not to

limit appellate review of an order to the particular

question of law identified by the district court. The

district court, having determined that respondents’ state-

law claims were inapplicable, issued an order dismissing

those damage claims that it viewed as not viable under

federal law. Pursuant to Section 1292(b), the district

court then asked the court of appeals for its view on

whether three types of damages were in fact recoverable

under federal law. Had the court of appeals agreed that

federal law governed respondents’ remedies, it undoubt-

edly would have answered those questions.

In light of the court of appeals’ view that state-law

remedies were applicable, however, little purpose would

have been served by its answering questions relating to

the availability of damages under federal law, since the

respondents sought recovery under more generous state-

law remedial principles. And for the court of appeals

simply to have declined review and allowed the district

court to proceed with discovery and trial based on the

(mistaken, in the court of appeals’ view, belief) that re-

spondent’s state claims were inapplicable would have

resulted in a substantial waste of time and resources and

(assuming that respondents appealed) in a subsequent

remand for a new trial to allow the dismissed state claims

to go forward. See Ducre v. Executive Officers of Halter

Marine, Inc., 752 F.2d 976, 983 n.16 (5th Cir. 1985)

(review under Section 1292(b) appropriate where issue

not identified by district court may “provide grounds for

reversal of the entire order”). By addressing the merits

nothing turns on the answer to the question, it ought not to be

answered.”).

29

of the district court’s order, the court of appeals acted to

avoid those predictable inefficiencies.”

6 The order dismissing various damages claims as inconsistent

with federal law (Pet. App. A52) was the second order issued in

response to Yamaha’s motion for summary judgment. Earlier, the

district court had issued an order (id. at A5l) that declared that

respondents’ right to recovery would be determined er federal

admiralty law and requested briefing on the damage consequences of

that ruling. The fact that the district court bifurcated its disposition of

Yamaha’s motion into separate orders did not, however, render

appellate review ofthe applicability of state remedies improper under

Stanley. Rather, the order granting summary judgment to Yamaha on

some of respondents’ damages claims was necessarily based on the

finding that state remedies were inapplicable, as the district court

explained when it certified that order. See id. at A74 (initial certifying

order) (“The district court has concluded that admiralty jurisdiction

attaches to these several counts and that they constitute a federal

maritime cause of action”); id. at A78 (amended order) (same); see also

Pet. App. A6 (“(TJhe answer to the certified question depends in large

part on the resolution of the displacement question. We presume that

the district court intended this important question of displacement to be

considered”); cf. Swint, 115 S. Ct. at 1212 (noting possibility that a

ruling “inextricably intertwined” with an appealable ruling may itself

be appealable).

30

CONCLUSION

The judgment of the court of appeals should be

reversed and the case remanded for the court of appeals

to consider further the order certified by the district

court.

Respectfully submitted.

Drew S. Days, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

PAUL BENDER

Deputy Solicitor General

PAUL A. ENGELMAYER

Assistant to the Solicitor General

ROBERT S. GREENSPAN

DAVID V. HUTCHINSON

EDWARD HIMMELFARB

Attorneys

JULY 1995