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

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Supreme Court, U.S. f°.”

>) FILED

No. 94-1387 \—” SEP 15 1995

OFFICE Or THER CieRK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1995

YAMAHA MoTor CorpPorATION, U.S.A. and

YAMAHA MoToR CoMPANY, LTD.,

Petitioners,

Lucien B. CALHOUN and RoBIN L. CALHOUN,

Individually and as Administrators of the |

Estate of Natalie K. Calhoun, Deceased,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF OF THE

NATIONAL CONFERENCE OF STATE LEGISLATURES,

COUNCIL OF STATE GOVERNMENTS,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL LEAGUE OF CITIES, AND

U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

RICHARD RUDA *

Chief Counsel

JAMES I, CROWLEY

STATE AND LOCAL LEGAL CENT=R

444 North Capitol Street, N.W.

Suite 345

Washington, D.C, 20001

(202) 484-4850

* Counsel of Record for the

Amici Curiae

WILSON - Eras Printrine Co.. Inc. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTION PRESENTED

Amici will address the following question:

Whether the judicially created federal maritime wrong-

ful death remedy preempts state wrongful death and sur-

vival remedies for torts occurring within a State’s terri-

torial waters.

(i)

TABLE OF CONTENTS

IEE BEEP crececccescncscscrenssecsnresscssecaseseneossaes

TABLE OF AUTHORITIES ..................-0...-sec-eesecesssseseeses

INTEREST OF THE AMICI CURIAE .........0..0.0....-2000000--

SUMMARY OF ARGUMENT? ooo... c ence cceceeeeeneees

I at inetincedininisttbinendnchdihsinebevinemsnetecctemestetenceaees

THE GENERAL MARITIME LAW’S WRONG-

FUL DEATH REMEDY DOES NOT PREEMPT

THE APPLICATION OF STATE WRONGFUL

DEATH REMEDIES TO A TORT WHICH

OCCURS WITHIN THE STATE’S TERRITO-

RIAL WATERS AND VIOLATES STATE LAW

TI iilidabnededaninnneespsiginsecntnncenaensidetcunccesceseceenecs

I. THE MARITIME LAW HAS LONG APPLIED

II.

III.

STATE WRONGFUL DEATH AND SUR-

ED wiactsh ich dnanctlinitihincedmmtaientquestccasene

CONGRESS HAS EXPRESSLY LEFT TO THE

STATES THE SUBJECT MATTER OF THE

REMEDY FOR THE WRONGFUL DEATH OF

A NON-SEAMAN OCCURRING IN TERRITO-

a RA ca

THE MORAGNE REMEDY DOES NOT PRE-

EMPT STATE WRONGFUL DEATH REME-

ita tec dlthiadidhcsscchniccticiahdnnbeotinassenatenseneesesceccs

THE MORAGNE REMEDY SHOULD NOT

BE EXTENDED TO PREEMPT STATE

WRONGFUL DEATH REMEDIES .....................

APPENDIX:

Selected State Recreational Boating Safety Stat-

ES ILD ae A OD

Page

TABLE OF AUTHORITIES

Cases Page

American Dredging Co. v. Miller, 114 S.Ct. 981

SI cisysnsscaliaitanancinaetnaindinaiacaacsantineiaiasecnnninanidtiannee 11,14

Askew v. American Waterways Operators, Inc.,

TE CE oi cicsiaticiadettctidiniinniieinintnain 13

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

IID cs is scinssadatnccttntcibemmsasndnntiendanianiialiamsimapiiainelibaaniens 26

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

TIT cakes cshsdnnhepsieeaetennetiinpensnesdantabinne 26

Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608

COT ities. cctnettiitcnnesionieliinidninitaiaianmstninlaapaatinntiinaeen 19, 20

Cooley v. Board of Wardens, 53 U.S. (12 How.)

TF eee nen 17

East River S.S. Corp. v. Transamerica Delaval,

GE Se Ge Genet 23

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ...... 30

Ex Parte Boyer, 109 U.S. 629 (1884) -~..................... 29

Finneseth v. Carter, 712 F.2d 1041 (6th Cir.

I cccnticenccstcsscittdstarurinticsvcdsaldintmictmabndchatnstetiaiiaene 29

Jerome B. Grubart v. Great Lakes Dredge & Dock

owe £ ' BS §, ere 5, 30

Hahn v. Ross Island Sand & Gravel Co., 358 U.S.

een 27

Holmes v. Oregon & C. Ry. Co., 5 F. 75 (D. Or.

I: isiesitis titticateranionnnttisetnneentgginanianienemntttinaiesinnenns .

Huron Portland Cement Co. v. City of Detroit, 362

CT Serer sata: Sere 23

In re Long Island Transp. Co., 5 F. 599 (S.D.N.Y.

GI cditccnreticcnthciiclinnsiteminanssiniisentbninateetintedalitcnnsteypuniniiee 8

Just v. Chambers, 312 U.S. 383 (1941) ............ 4, 5-6, 9, 10

Kermarec v. Compagnie Generale Transatlantique,

RF rue 26

Knickerbocker Ice Co. v. Stewart, 253 U.S. 149

call nlidtsanibinns 13

La Bourgogne, 210 U.S. 95 (1908) ........................... 9

Lindgren v. United States, 281 U.S. 38 (1930) ........ 15

Luke v. Lyde, 2 Burr. 882, 97 Eng. Rep. 614 (K.B.

I. c:csnsssieitniatatianitnndsunianiatliancineatintasdnilnatiaiasiiemmadinten 12

Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944)... 18, 24

Messel v. Foundation Co., 274 U.S. 427 (1927)........ 27

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) .... 14, 15,

22, 24

TABLE OF AUTHORITIES—Continued

Page

Mitchell v. Trawler Racer, Inc., 362 U.S. 539

Ee a SS BE Nee ee Pee 18

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

ae EE OE Se OR, ee 15

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

EE ae ae Ce passim

New York State Conf. of Blwe Cross & Blue Shield

Plans v. Travelers Ins. Co., 115 S.Ct. 1671

SSS are 9 Fo a 19

Noel v. Linea Aeropostol Venezolana, 260 F. Supp.

es ee 26

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

GE ee ae. Te Be 2, 15, 16, 17

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953).. 26-27

Reynolds v. Bradley, 644 F. Supp. 42 (N.D.N.Y.

SRE ET CS ee RRS OE 29

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

ES ae re ARNOT eee ee 19

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

— Ee OS ee 27

Romero v. International Terminal Operating Co.,

I al passim

Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85

ES ee ee ae a 18

Sherlock v. Alling, 98 U.S. 99 (1876) 0000. passim

Silkwood v. Kerr-McGee Corp., 464 U.S. 238

ET ae vO ae ee ee Te 20

Southern Pacific Co. v. Jensen, 244 U.S. 205

lh ES RS ae ee ee Oe Te ATE passim

Steamboat Co. v. Chase, 83 U.S. (16 Wall.) 522

EET SRE PR Oe ee EN passim

Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842) 12

The City of Norwalk, 55 F. 98 (S.D.N.Y. 1893),

aff'd in part and rev'd in part, 61 F. 364 (2d Cir.

eases tenia iiuindinas pkanbetitin siianinpeaa isle nacibbinitinl passim

The Corsair, 145 U.S. 335 (1892) 000000. 8

The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871)...... 29

The E.B. Ward, Jr., 17 F. 456 (C.C.E.D. La. 1883) .. 8

The Garland, 5 F. 924 (E.D. Mich. 1881) 0... 8

The Harrisburg, 119 U.S. 199 (1886) 0. 6, 8, 9, 16

TABLE OF AUTHORITIES—Continued

Page

The James Berwind, 44 F. 693 (S.D.N.Y.), rev'd,

rb GF FSR ARRREE REISE PREIS ES 82 SOE 8

The Lottawanna, 88 U.S. (21 Wall.) 558 (1875)... 10,14

The Montello, 87 U.S. (20 Wall.) 430 (1874).......... 29

The Oregon, 45 F. 62 (D.Or. 1891), rev’d, 158 U.S.

a EE LETS LS Ee tt aR Ae TOE is «

The Robert W. Parsons, 191 U.S. 17 (1908) .......... 29

The St. Nicholas, 49 F. 671 (S.D. Ga. 1891) _......... 8

The Sylvan Glen, 9 F. 335 (E.D.N.Y. 1881) .......... x

The Vera Cruz, 10 App. Cas. 59 (H.L. 1884)............ 10

Western Fuel Co. v. Garcia, 275 U.S. 233 (1921) ..6, 8, 10

Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348

eee ee oe 8 17

Workman v. City of New York, 179 U.S. 552

IED Gancesccthdinndncniucessncitlihesctiteibinnnainsipsintintatenrniacinnitedaiin 27

Statutes

a ehaeneensceioceesiaticiainiell 28

a 5a adh hbescinhsbdililine nnsipaabesiiaabiel 28

II ccncndiisinintepsenccsienenesciioenntincisaintmaabeimeiiaiien 27

Death on the High Seas Act, 46 App. U.S.C.

§§ 761-77

I i siscsncivntneieressinnesetoouianten 14-15, 15

Oe B,C Pe trccscccccccccssnsnsesccees ‘denoseidicded 14-15

i a iiccceresesiicininicnevninnnsnonesintiananes 25

ee ee FE cap setttecpienccncntctnsensttecensinaiinnsanen 2,16

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

(Ml RI is Rs at Re RN 15

Jones Act, 46 App. U.S.C. § 688 .......................--.-------- 15

Judiciary Act of 1789, §9, 1 Stat. 76, 28 U.S.C.

I TTI ns cscsiececiasndelicimesscingpesiaincdenseatesnagtiintad 2, 6, 13, 16

Longshore and Harbor Workers’ Compensation

Act, 86 Stat. 1251, 33 U.S.C. §§ 901-950 14, 22

Other Authorities

Alexandra Alger & William G. Flanagan, Snow-

mobiles of the Sea, Forbes, Aug. 28, 1995 ............ 1

Amy Argetsinger, Deaths Rise as More People

Ride the Waves, The Washington Post, Aug. 27,

vii

TABLE OF AUTHORITIES—Continued

Page

William R. Casto, The Origins of Federal Admi-

ralty Jurisdiction in an Age of Privateers, Smug-

glers, and Pirates, 37 Am. J. Legal Hist. 117

BREA SE EEE ar Pace 12

David P. Currie, Federalism and the Admiralty:

“The Devil's Own Mess’’, 1960 Supreme Ct. Rev.

EES Tee re Se ere a ee 12

Dan B. Dobbs, Torts and Compensation (1985)... 26

3 Jonathan Elliott, Debates in the Several State

Conventions on the Adoption of the Federal Con-

stitution (2d ed. 1907) 12

The Federalist No. 45 (James. Madison) (Isaac

I i eeueneneinia 4

The Federalist No. 80 (Alexander Hamilton)

(Isaac Kramnick ed., 1987) 000 11,12

Grant Gilmore & Charles L. Black, Jr., The Law of

Admiralty (2d ed. 1975) .......0....0....00.ccccccccecceeeeeee. 6, 27

H.R. Rep. No. 674, 66th Cong., 2d Sess. (1920) _ 15-16

Robert M. Hughes, Handbook of Admiralty Law

a 9,19

William M. Landes & Richard A. Posner, The Eco-

nomic Structure of Tort Law (1987)... ss 28

Ralph McCaughan, Federal Maritime Jurisdiction

Over Inland Intrastate Lakes, 26 Wash. & Lee L.

Rev. 1 (1969)... 29-30

Jon Nordheimer, /t Mimics A Mosquito, But Ie

flicts Worse Injury, The New York Times, Aug.

5 ST l

Thomas J. Schoenbaum, Admiralty and Meritime

EE a lle eS NA OR a 21, 27, 29

S. Rep. No. 216, 66th Cong., Ist Sess. (1919) __. 15

Preble Stolz, Pleasure Boating and Admiralty:

Erie at Sea, 51 Cal. L. Rev. 661 (1963) 11-12, 28

U.S. Department of Transportation, U.S. Coast

Guard Commandant Instruction M16750.5C

yA aa eae 1

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state,

county, and municipal governments and officials through-

out the United States, have a compelling interest in legal

issues that affect state and local governments. This case

involves an issue at the core of amici’s interest: whether

the judicially created federal admiralty remedy preempts

state wrongful death and survival remedies for those torts

occurring within a State’s territorial waters.

Long before federal admiralty law recognized a remedy

for wrongful death, the States exercised their police powers

to protect their citizens by creating remedies for tortious

conduct causing death. The Court has long affirmed the

States’ authority to provide remedies for maritime torts

causing death. Moreover, the States bear “primary re-

sponsibility for recreational boating safety law enforce-

ment, education and assistance.” U.S. Department of

Transportation, U.S. Coast Guard Commandant Instruc-

tion M16750.5C (Dec. 22, 1988) (promulgating The

Boating Safety Manual (State Edition) ). Every State has

enacted statutes regulating recreational vessel safety and

either established marine police forces or authorized other

personnel to enforce these laws. See Appendix. States

are also taking the initiative in responding to the increase

in serious jet ski accidents. See id.’

Because of the importance of this issue to amici and

their members, this brief is submitted to assist the Court

in its resolution of the case.”

1 See also Alexandra Alger & William G. Flanagan, Snowmobiles of

the Sea, Forbes, Aug. 28, 1995, at 304, 305; Jon Nordheimer, /1

Mimics A Mosquito, But Inflicts Worse Injury, N.Y. Times, Aug.

27, 1995, at 31, 36; Amy Argetsinger, Deaths Rise as More People

Ride the Waves, Washington Post, Aug. 27, 1995, at Al, A6-A7.

2 The parties have consented to the filing of this brief amicus

curiae. Letters indicating their consent have been filed with the

Clerk of the Court.

SUMMARY OF ARGUMENT

1. The Court has long recognized the States’ authority

to provide remedies for tortious conduct which causes

death within their borders even when such conduct occurs

within the admiralty jurisdiction. The Court has repeatedly

held that state created wrongful death remedies do not

violate the essential uniformity of the maritime law.

The Court’s creation of a wrongful death remedy under

the federal maritime law does not render the application

of state remedies in maritime tort actions anomalous.

Indeed, as the Court has recognized, such remedies are

saved to suitors under § 9 of the Judiciary Act of 1789.

Thus, reviving Southern Pacific Co. v. Jensen, 244 US.

205 (1917), to hold that federal common law rules pre-

empt state wrongful death remedies would mark an undue

intrusion into the States’ authority to protect the safety

and lives of their citizens. It is also unwarranted because

state laws regulating maritime affairs remain subject to

the restraints of the dormant commerce and due process

clauses as well as preemption through either legislative

action or the treaty power.

2. Holding that the federal common law admiralty

remedy preempts state remedies would be especially un-

warranted because Congress has expressly left to the States

the subject matter of the remedy for the wrongful death

of a non-seaman in territorial waters. While Congress has

enacted a remedy for wrongful death arising out of mari-

time torts applicable to non-seamen (which preempts state

remedies), by its express terms the remedy applies only to

deaths occurring on the high seas. See 46 App. U.S.C.

§ 761. Congress also expressly preserved state remedies

for torts occurring within a State’s territorial waters. /d.

§ 767. As the Court has observed, “the [Death on the

High Seas] Act saved to survivors of those killed on terri-

torial waters the ability to pursue a state wrongful death

remedy in state court.” Offshore Logistics, Inc. v. Tallen-

tire, 477 U.S. 207, 225 (1986). And Congress preserved

State remedies aware that they “may actually have been

more generous than the remedy provided by [DOHSA].”

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

(1970). If there is a national interest in having a uniform

rule limiting maritime wrongful death recoveries, Congress

should make that choice.

3. Nor does Moragne’s creation of a wrongful death

remedy in order to vindicate the uniquely federal duty of

seaworthiness support the preemption of state wrongful

death remedies. This federal rule (which imposes an ab-

solute duty on vessel owners to provide seamen and

formerly other maritime employees with a seaworthy work-

place) “ha[d] become the principal vehicle for recovery by

seamen for injury or death.” 398 U.S. at 399. The

Moragne Court was thus properly concerned with ensuring

the vindication of this exclusively federal maritime duty.

But where, as here, the duties which have been breached

violate state law as well, the States retain a substantial

interest in enforcing them. Consistent with the Court’s

recognition that the States may exercise substantial regula-

tory authority over maritime affairs concurrent with that

of the Federal Government, the Court should make clear

that Moragne does not preempt a state remedy when the

underlying duty is cognizable under state law.

4. Holding that the Moragne remedy preempts state

wrongful death remedies within the State’s territorial

waters would lead to the perverse result that those harmed

by the same tortious conduct will have different recoveries

depending solely upon whether the tort occurred on navi-

gable waters (and within the admiralty jurisdiction), or

on the State’s inland waters. Indeed, because of the reach

of the admiralty jurisdiction, adopting petitioners’ rule will

prompt much wasteful litigation over whether seemingly

inland bodies of water are within it.

Moreover, unlike Congress, federal courts do not have

the power to create a common law applicable to all torts.

Thus, while petitioners assert that the preemption of state

remedies is necessary to avoid anomalous treatment of

claimants, their regime will impose anomalous results on

a far wider scale. The Court should therefore reaffirm the

States’ authority to remedy all tortious waterborne deaths

occurring within their borders.

ARGUMENT

THE GENERAL MARITIME LAW’S WRONGFUL

DEATH REMEDY DOES NOT PREEMPT THE APPLI-

CATION OF STATE WRONGFUL DEATH REMEDIES

TO A TORT WHICH OCCURS WITHIN THE STATE’S

TERRITORIAL WATERS AND VIOLATES STATE

LAW DUTIES

I. THE MARITIME LAW HAS LONG APPLIED STATE

WRONGFUL DEATH AND SURVIVAL REMEDIES

This Court has long recognized that the “[mlJaritime

law is not a monistic system” which always requires the

application of uniform federal rules. Romero v. Inter-

national Terminal Operating Co., 358 U.S. 354, 374

(1959). Indeed, because “the maritime law [is] not a

complete and perfect system . . . in all maritime countries

there is a considerable body of municipal law that under-

lies the maritime law as the basis of its administration.”

Just v. Chambers, 312 U.S. 383, 390 (1941). As Justice

Holmes observed, “The maritime law is not a corpus juris

—it is a very limited body of customs and ordinances of

the sea.” Southern Pacific Co. v. Jensen, 244 U.S. 205,

220 (1917) (Holmes, J., dissenting); see also The City

of Norwalk, 55 F. 98, 107 (S.D.N.Y. 1893) (cited with

approval in Just, 312 U.S. at 389), aff'd in part and rev'd

in part, 61 F. 364 (2d Cir. 1894).

Our constitutional system is founded on the recognition

that the States possess sovereign authority over “all the

objects which, in the ordinary course of affairs, concern

the lives, liberties, and properties of the people.” The

Federalist No. 45, at 296 (Isaac Kramnick ed. 1987).

Thus, notwithstanding that the Constitution “empowered

the federal courts in their exercise of the admiralty and

maritime jurisdiction which had been conferred on them,

to draw on the substantive law ‘inherent in the admiralty

and maritime jurisdiction’ and to continue the develop-

ment of this law within constitutional limits,” Romero,

358 U.S. at 360-61 (citation omitted), the Court has exer-

cised this power mindful that “[t]he State and Federal

Governments jointly exert regulatory powers today as they

have played joint roles in the development of maritime

law throughout our history.” /d. at 374. As the Court

further noted in Romero:

Although the corpus of admiralty law is federal in

the sense that it derives from the implications of

Article III evolved by the courts, to claim that all

enforced rights pertaining to matters maritime are

rooted in federal law is a destructive oversimplifica-

tion of the highly intricate interplay of the States

and the National Government in their regulation of

maritime commerce. It is true that state law must

yield to the needs of a uniform federal maritime law

when this Court finds inroads on a harmonious sys-

tem. But this limitation still leaves the States a wide

scope.

Id. at 373 (footnote omitted). See also Jerome B. Grubart,

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

1054 (1995); The City of Norwalk, 55 F. at 106.

State remedies for wrongful death and the survival of

actions are among those state created legal rights which

admiralty courts have long enforced.* See Just, 3i2 U.S.

*In Romero, the Court described the extent to which federal

admiralty law has looked to state law in adjudicating disputes:

State-created liens are enforced in admiralty. State remedies

for wrongful death and state statutes providing for the sur-

vival of actions, both historically absent from the relief offered

by the admiralty, have been upheld when applied to maritime

causes of action. Federal courts have enforced these statutes.

State rules for the partition and sale of ships, state laws

governing the specific performance of arbitration agreements,

state laws regulating the effect of a breach of warranty under

contracts of maritime insurance—all these laws and others

have been accepted as rules of decision in admiralty cases, even,

at times, when they conflicted with a rule of maritime law

which did not require uniformity.

358 U.S. at 373-74 (footnotes omitted). See also The City of

Norwalk, 55 F. at 106-07.

at 391-92; Western Fuel Co. v. Garcia, 257 U.S. 233

(1921). Whether the admiralty enforced these remedies

because they were viewed as “maritime [but] local in char-

acter,” id. at 242, or as “general legislation [enacted] by

the states, applicable alike on land and water, in their

exercise of the police power for the preservation of life

and health,” The City of Norwalk, 55 F. at 106, one

thing is clear: their application to those maritime torts

occurring within a State’s territorial waters traditionally

was not viewed as “work[ing] material prejudice to the

characteristic features of the general maritime law or in-

terfer[ing] with the proper harmony and uniformity of

that law in its international and interstate relations.”

Jensen, 244 U.S. at 216.

This was so even though until 1970 there was no rem-

edy for wrongful death under the federal general maritime

law as adjudged by this Court. See Moragne v. States

Marine Lines, Inc., 398 U.S. 375 (1970); The Harris-

burg, 119 U.S. 199 (1886). Indeed, even before The

Harrisburg, the Court had held that state created wrongful

death and survival remedies were enforceable in maritime

tort actions as remedies which were saved to suitors under

the Judiciary Act of 1789, 1 Stat. 76-77. See Sherlock

v. Alling, 93 U.S. 99 (1876); Steamboat Co. v. Chase,

83 U.S. (16 Wall.) 522 (1872).*

In Steamboat Co. v. Chase, the Court upheld the appli-

cation of Rhode Island’s wrongful death and survival

statutes in a suit based on a collision between a sailboat

and steamer. In so holding, the Court rejected the de-

fendant’s contentions that the State could not “give a

remedy to a suitor for a consequential injury growing out

of a marine tort, when no remedy for such injury exists

* As explained at pp. 20-23 infra, the Court’s creation in Moragne

of a wrongful death remedy to vindicate the uniquely federal duty

of seaworthiness does not support preemption of state wrongful

death remedies where tortious conduct violates both maritime and

state law duties. For a discussion of the type of conditions which

violate the seaworthiness duty, see Grant Gilmore & Charles L.

Black, Jr., The Law Of Admiralty 383-404 (2d ed. 1975).

in the admiralty.” /d. at 524. There, defendants argued

that the purpose of the constitutional grant of admiralty

jurisdiction to the federal courts “was to create a mari-

time court for the purpose of administering the universal

law of the seas” and that “there is an obvious propriety

in excluding the courts of common law from adjudicating

upon subjects which are, from their nature, of admiralty

cognizance.” Jd. The Court dismissed these arguments,

strikingly similar to those of Yamaha, reasoning that the

common law was competent to provide the remedy and

the right to the remedy was secured under the savings to

suitors clause. /d. at 533 (citing 1 Stat. 76, § 9).

In Sherlock, the Court upheld the application of In-

diana’s wrongful death and survival statute to a suit aris-

ing out of the death of a steamer passenger. There, de-

fendants objected on the ground that “the statute of

Indiana creates a new liability, and could not, therefore,

be applied to cases where the injuries complained of were

caused by marine torts, without interfering with the ex-

clusive regulation of commerce vested in Congress.” /d.

at 101-02. The Court rejected this uniformity argument,

stating:

with reference to a great variety of matters touching

the rights and liabilities of persons engaged in com-

merce, either as owners or navigators of vessels, the

laws of Congress are silent, and the laws of the State

govern. ... [I]t may be said, generally, that the legis-

lation of a State, not directed against any commerce

or any of its regulations, but relating to the rights,

duties, and liabilities of citizens, and only indirectly

and remotely affecting the operations of commerce,

is of obligatory force upon citizens within its terri-

torial jurisdiction, whether on land or water, or en-

gaged in commerce, foreign or inter-State, or in any

other pursuit. In our judgment, the statute of In-

diana falls under this class.

Id. at 104. The Court emphasized that “(uJntil Congress,

therefore, makes some regulation touching the liability of

parties for marine torts resulting in the death of the

persons injured, we are of the opinion that the statute of

Indiana applies... .” Jd.

Thus, by the time of The Harrisburg, the Court had

already upheld the application of state created wrongful

death remedies in maritime tort actions.’ And while The

Harrisburg held that the general maritime law did not

recognize an action for wrongful death (its ratio decidendi

being that no such action lay at common law, see 119

U.S. at 213), it also recognized that the maritime law

borrowed from land based law and where the latter recog-

nized the cause of action, the admiralty would adopt that

5 The United States asserts that until Western Fuel Co. v. Garcia,

257 U.S. 283 (1921), “[t]he federal courts . . . 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.” Br. U.S. Am. Cur. 10.

While both Steamboat Co. and Sherlock were brought in state

court under the savings to suitors clause, both cases involved mari-

time torts subject to federal maritime law, with the Court rejecting

arguments that the application of state wrongful death remedies

interfered with the essential characteristics of admiralty law. See

supra 6-8. Thereafter, numerous lower federal admiralty courts

adopted state wrongful! death statutes in suits brought both in

personam and in rem. See, e.g., The City of Norwalk, 55 F. at 98;

The James Berwind, 44 F. 693 (S.D.N.Y.), rev'd on other grounds,

49 F. 956 (2d Cir. 1891); The St. Nicholas, 49 F. 671 (S.D.Ga.

1891) ; The Oregon, 45 F. 62 (D. Or. 1891), rev'd on other grounds,

158 U.S. 186 (1895); The E.B. Ward, Jr., 17 F. 456 (C.C.E.D. La.

1883): The Sylvan Glen, 9 F. 335 (E.D.N.Y. 1881); The Garland,

5 F. 924 (E.D. Mich. 1881); Holmes v. Oregon & C. Ry. Co.,

5 F. 75 (D. Or. 1880); In re Long Island Transp. Co., 5 F. 599

(S.D.N.Y. 1881).

Whatever doubt remained as to the propriety of applying state

wrongful death remedies in federal admiralty court was put to

rest in The Corsair, 145 U.S. 335, 347-48 (1892), some thirty years

before Western Fuel. While The Corsair upheld the dismissal of a

wrongful death suit brought in rem because the state law had not

created a lien against the “offending thing” (which was a juris-

dictional prerequisite to an in rem proceeding), it also made clear

that “[i]f [the state law] merely gives a right of action in personam

for a cause of action of a maritime nature, the District Court may

administer the law by proceedings in personam.” Id. at 347.

rule. As the Court stated, “no country . . . had adopted

a different rule on this subject for the sea from that which

it maintains on the land, and the maritime law, as accepted

and received by maritime nations generally, leaves the

matter untouched.” 119 U.S. at 213. As the City of

Norwalk explained:

. . . Since the maritime courts in each country follow

their own municipal law as regards giving damages

for death; and inasmuch as by the common law of

this country such a cause of action does not sur-

vive,—the latter rule must, therefore, obtain in our

courts of admiralty. In other words, it is the munici-

pal law that on such a point determines the law

applicable in a court of admiralty.

55 F. at 108.

Accordingly, the unavailability of a wrongful death

remedy was never viewed as being one of the “character-

istic features of the general maritime law” which was to

be shielded from state laws which “work[ed] material

prejudice” to it or which “interfere[d] with the proper

harmony and uniformity of that law in its international

and interstate relations.” Jensen, 244 U.S. at 216. To

the contrary, in this context, the maritime law embraced

whatever law was established by the controlling juris-

diction notwithstanding any disuniformity which might

ari_e.

Thus, in La Bourgogne, 210 U.S. 95, 138-39 (1908),

this Court held that wrongful death claims could be

brought against a French vessel for a tort occurring on

the high seas because French law recognized the right to

recover for wrongful death; contemporaneously the courts

of Holland, Germany, and Scotland enforced wrongful

death remedies in maritime tort actions. Robert M.

Hughes, Handbook of Admiralty Law § 110, at 224-26

(2d ed. 1920) (cited in Just, 312 U.S. at 388 n.8). Yet

at the same time the admiralty courts of England, the

leading seafaring nation of the period, did not recognize

the existence of a wrongful death remedy under the gen-

eral maritime law. See The Harrisburg, 119 U.S. at 205;

The Vera Cruz, 10 App. Cas. 59 (H.L. 1884); see also

Hughes, § 111, at 227.

It is thus no surprise that Jensen, the very decision

which is the source of petitwers’ entreaty that the essen-

tial uniformity of maritime !a\v requires the preemption of

state wrongful death remedies, see Pet. Br. 39-43, itself

recognized that these remedies were among those state

laws which could modify the general maritime law. See

Jensen, 244 U.S. at 216.° As this Court stated in Western

Fuel:

where death upon such waters follows from a mari-

time tort committed on navigable waters within a

State wh »se statutes give a right of action on account

of death by wrongful act, the admiralty courts will

entertain a libel in personam for the damages sus-

tained by those to whom such right is given. The

subject is maritime and local in character and the

specified modification of or supplement to the rule

applied in admiralty courts when following the com-

mon law, will not work material prejudice to the

characteristic features of the general maritime law,

nor interfere with the proper harmony and uniform-

ity of that law in its international and interstate

relations.

257 U.S. at 242. See also Just, 312 U.S. at 392 (“Uni-

formity is required only when the essential features of an

exclusive federal jurisdiction are involved. But as ad-

miralty takes cognizance of maritime torts, there is no

repugnancy to its characteristic features either in permit-

*The United States and the MLA invoke The Lottawanna, 88

U.S. (21 Wall.) 558, 575 (1875), in support of their contention

that the Constitution contemplates “a system of [maritime] law

coextensive with, and operating uniformly in, the whole country.”

See Br. U.S. 13, 14: Br. Am. Cur. MLA 6. Yet The Lottawanna

upheld state authority to create liens on vessels in favor of those

furnishing repairs and supplies, which were enforceable in ad-

miralty, notwithstanding its concern that it would “be far more

satisfactory to have a uniform law regulating such liens.” 88 U.S.

(21 Wall.) at 581. The Court instead left it to Congress to deter-

mine whether the interest in uniformity required a single Federal

rule. Jd. at 581-82; see also id. at 576-77.

ting recovery for wrongful death or in allowing compensa-

tion for a wrong to the living to be obtained from a

tortfeasor’s estate.”). And in Romero the Court observed:

“State remedies for wrongful death and state statutes

providing for the survival of actions, both historically

absent from the relief offered by the admiralty, have been

upheld when applied to maritime causes of action. Federal

courts have enforced these statutes.” 358 U.S. at 373.

As the foregoing demonstrates, the general maritime law

has never viewed the subject matter of wrongful death

remedies as being one of its “characteristic features” or

the provision of state remedies as “interfer[ing] with the

proper harmony and uniformity of that law in its inter-

national or interstate” relations. Jensen, 244 U.S. at 216.

Rather, throughout the world, admiralty law traditionally

has looked to shoreside law, whether statutory or common

law, to determine if a claimant in a maritime tort action

was entitled to recover for wrongful death, a practice

which this Court also has long endorsed through the ap-

plication of state wrongful death remedies to suits in

admiralty.

To argue then, as petitioners do, that the essential

uniformity of admiralty law requires that the judicially

created Moragne remedy preempt continued application

of state wrongful death statutes to suits arising out of

incidents occurring in a State’s territorial waters, is to

ignore that the legal consequence for causing a tortious

death has never been “a matter of global concern requir-

ing uniformity under general maritime law.” American

Dredging Co. v. Miller, 114 S.Ct. 981, 990 (1994).

Indeed, given that the fundamental premise underlying

the Constitution’s grant of admiralty jurisdiction to the

federal courts was the admiralty law’s international char-

acter, see, e.g., The Federalist No. 80, at 447 (Alexander

Hamilton) (Isaac Kramnick ed., 1987)", petitioners’ argu-

7It is generally recognized that the framers’ decision to vest the

admiralty and maritime jurisdiction in the federal courts was

prompted by the understanding of the international character of

the maritime law. See, e.g., Preble Stolz, Pleasure Boating and

ment ai..ounts to nothing more than a plea for the return

of federal common lawmaking in the manner of Swift v.

Tyson, 41 U.S. (16 Pet.) 1 (1842), albeit under the

guise of Southern Pacific v. Jensen. See Pet. Br. 31 (“the

remedy is to be determined under a uniform system of

federal common law, regardless of who is killed or where

the accident takes place”). Putting aside that Jensen

acknowiedged the validity of the admiralty’s applying the

very type of state statutes which petitioners now challenge,

see 244 U.S. at 216, reviving its doctrine to invalidate

state wrongful death and survival remedies is unwarranted

for numerous reasons.

First, denying suitors their state wrongful death and

survival remedies violates the savings to suitors clause

which, as the Court held in Steamboat Co. v. Chase, pre-

Admiralty: Erie at Sea, 51 Cal. L. Rev. 661, 669-70 (1963) ; David

P. Currie, Federalism and the Admiralty: “The Devil's Own Mess”’,

1960 Supreme Ct. Rev. 158, 163-64; Cf. Luke v. Lyde, 2 Burr. 882,

887, 97 Eng. Rep. 614, 617-18 (K.B. 1759) (opinion of Lord Mans-

field, C.J.) (characterizing the maritime law as “not the law of a

particular country, but the general law of nations”). See also

The Federalist No. 80, at 447 (Alexander Hamilton) (Isaac Kram-

nick ed., 1987); 3 Jonathan Elliot, Debates in the Several State

Conventions on the Adoption of the Federal Constitution 532 (2d

ed. 1907) (Statement of James Madison).

Whether or net one accepts the view that the framers intended

for the admiralty and maritime jurisdiction to encompass the model

of private litigation which it has evolved into, see William R. Casto,

The Origins of Federal Admiralty Jurisdiction in an Age of

Privateers, Smugglers, and Pirates, 37 Am. J. Legal Hist. 117

(1993) (arguing that framers’ concern was to provide a federal

forum competent to adjudicate matters of sovereign interest such

as prize cases, crimes committed on the high seas, and revenue

cases, not private disputes which were considered unimportant), it

is clear that the principal concern of the jurisdictional grant was

uniform enforcement of those principles of admiralty which were

of international character. But as Justice Holmes observed, “The

maritime law is not a corpus juris—it is a very limited body of

customs and ordinances of the sea.” Jensen, 244 U.S. at 220 (dis-

senting). Where a particular subject matter is not part of this

“very limited body” of law and custom, state law governing that

subject matter should be evaluated under traditional dormant com-

merce clause and preemption principles.

serves these remedies notwithstanding that they did not

exist at the time of the Judiciary Act’s enactment. See

83 U.S. (16 Wall.) at 533. Indeed, given that the Court

in Moragne exercised its common law powers to create a

wrongful death remedy reasoning that such remedies are

now part of the fabric of the common law, see 398 U.S.

at 391-93, it is difficult to understand why state wrongful

death and survival remedies are no longer saved to suitors

under the Judiciary Act of 1789, 1 Stat. 76, §9, 28

U.S.C. § 1333(1), as the Court held in Steamboat Co. v.

Chase. To maintain then, as the United States does, that

the admiralty’s application of state wrongful death reme-

dies is merely a “historical anomaly” for which “there is

no longer any justification,” Br. U.S. 6, is to ignore that

the savings clause expressly preserves them.” See Romero,

358 U.S. at 361-62.

Extending Jensen to the realm of state wrongful death

remedies would also mark an undue intrusion into the

sovereignty of the States to exercise their police power

for the protection of the safety and lives of their citizens.

The Court has observed, however, that Jensen and its

progeny, Knickerbocker Ice Co. v. Stewart, 253 U.S. 149

(1920), “have been limited by subsequent holdings of

this court” and “marked isolated instances” of admiralty

common law rules preempting state law. Askew v. Ameri-

can Waterways Operators, Inc., 411 U.S. 325, 338 (1973).

* Jensen, of course, struck down a state workers’ compensation

scheme on the ground that it was a remedy “of a character wholly

unknown to the common law.” 244 U.S. at 218. The Court in

Steamboat Co. v. Chase, however, had earlier rejected this argument

with respect to state wrongful death statutes notwithstanding that

these remedies did not exist at the time of enactment of the

Judiciary Act, 1 Stat. 76. See 83 U.S. (16 Wall.) 533. Moragne’s

conclusion that recovery for wrongful death “has become itself a

part of our law,” 398 U.S. at 390-91; see also id. at 392-93, reaffirms

the conclusion that state remedies for wrongful death are saved

to suitors. It would be incongruous to hold that wrongful death

remedies are part of the common law for purposes of creating

such a remedy, see id. at 390-93, but are not part of the common

law’s remedies for purposes of the savings clause.

Moreover, reviving Jensen is unwarranted given that

under our Constitution, state laws regulating maritime

affairs remain subject both to the restraints of the dor-

mant commerce and due process clauses as well as pre-

emption through either legislative action or the treaty

power. See American Dredging, 114 S.Ct. at 991-92

(Stevens, J., concurring in part and concurring in the

judgment). As the Court stated in The Lottawanna, “we

must always remember that the court cannot make the

[maritime] law, it can only declare it. If, within its

proper scope, any change is desired in its rules, other

than those of procedure, it must be made by the legisla-

tive department.” 88 U.S. (21 Wall.) at 576-77; see

also id. at 581-82; Miles v. Apex Marine Corp., 498 U.S.

19, 27 (1990) (“Congress retains superior authority in

these matters, and an admiralty court must be vigilant not

to overstep the well-considered boundaries imposed by

federal legislation.”). And with respect to the specific

question of whether the judicially created Moragne remedy

preempts state wrongful death remedies, invoking such

vague notions as the need for uniformity is all the more

untoward because Congress has expressly left to the

States the subject matter of the remedy for the wrongful

death of a non-seaman (other than longshoremen and

harbor workers, see 33 U.S.C. §§ 901-950) in the terri-

torial waters.

II. CONGRESS HAS EXPRESSLY LEFT TO THE

STATES THE SUBJECT MATTER OF THE REM-

EDY FOR THE WRONGFUL DEATH OF A NON-

SEAMAN OCCURRING IN TERRITORIAL WATERS

In 1920, Congress legislatively altered the maritime law

with the enactment of two statutes which created wrong-

ful death remedies applicable in many maritime tort

actions. See Miles, 498 U.S. at 23-24. The Death on

the High Seas Act (DOHSA) provides a remedy to the

“wife, husband, parent, child or dependent relative” for

the death of any person “caused by wrongful act, neglect

or default occurring on the high seas beyond a marine

league from the shore of any State.” 46 App. U.S.C.

$§ 761, 762. The Jones Act, 46 App. U.S.C. § 688,

incorporated the Federal Employers’ Liability Act, 45

U.S.C. §§ 51-60, to provide a wrongful death remedy “in

favor of the personal representative of a seaman killed

in the course of employment,” Miles, 498 U.S. at 23-24,

which applies even when the tort occurred within a State’s

territorial waters. See Lindgren v. United States, 281

U.S. 38, 44-47 (1930).

When applicable, DOHSA and the Jones Act super-

sede a State's wrongful death remedies. See Offshore

Logistics, Inc. v. Tallentire, 477 U.S. 207, 230-32 (1986)

(DOHSA); Lindgren, 281 U.S. at 44-47. Respondents’

decedent, however, was not a seaman subject to the Jones

Act. And with respect to non-seamen, the Court has

acknowledged that “Congress was careful to make the

Death on the High Seas Act applicable only outside state

territorial waters so as not to intrude on state legisla-

tive competence.” Romero, 358 U.S. at 374 n.42 (cita-

tion omitted); see also Moragne, 398 U.S. at 399-400.

Indeed, in enacting the DOHSA, Congress made clear

in two separate provisions its purpose of preserving state

wrongful death remedies for those torts which occurred

within territorial waters. Thus, Section 1, which created

DOHSA’s right of action, expressly limits it to “the death

of a person . . . occurring on the high seas beyond a

marine league from the shore of any State... .” 46 App.

U.S.C. § 761. Section 1’s “reach . . . was explicitly lim-

ited to actions arising from accidents on the high seas, so

as to ‘prevent the Act from abrogating by its own force,

the state remedies then available in state waters.’” Off-

shore Logistics, 477 U.S. at 224 (quoting Mobil Oil

Corp. v. Higginbotham, 436 U.S. 618, 621-22 (1978))

(citation omitted). As the Senate Report explains, “[t]he

right is made exclusive for deaths on the high seas,

leaving unimpaired the rights under State statutes as to

deaths on waters within the territorial jurisdiction of the

States.” S. Rep. No. 216, 66th Cong., Ist Sess. 3 (1919)

(quoting letter of Judge Harrington Putnam); see also

H.R. Rep. No. 674, 66th Cong., 2d Sess. 3 (1920)

(same).

DOHSA contains an additional provision, Section 7,

46 App. U.S.C. § 767, entitled “Exceptions from opera-

tion of chapter,” which provides further evidence of

Congress’ purpose of preserving state wrongful death

remedies for those torts occurring within a State’s terri-

torial waters. This section, which the Court has charac-

terized as “a product of perhaps overabundant caution,”

Offshore Logistics, 477 U.S. at 223, expressly preserves

state remedies:

The provisions of any State statute giving or regu-

lating 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... .

46 App. U.S.C. § 767.

As the Court has observed, Section 7 was enacted in

response to Jensen and the “fear that absent a saving

clause specifically recognizing the continued viability of

this type of action, state wrongful death remedies on terri-

torial waters might be deemed beyond the competency of

state courts.” Offshore Logistics, 477 U.S. at 224. Only

three years earlier Jensen had held that a state workers’

compensation scheme was “of a character wholly unknown

to the common law” and thus was not “saved to suitors”

under the Judiciary Act of 1789, § 9, 1 Stat. 76. See

244 US. at 218. Because wrongful death statutes were

also unknown to the common law, see The Harrisburg,

119 U.S. at 213-14, Section 7 was enacted to “ensure ]

that the Act saved to survivors of those killed on terri-

torial waters the ability to pursue a state wrongful death

remedy in state court.” Offshore Logistics, 477 U.S. at

225.

The United States, in contrast to its position in

Moragne,’ now asserts that Section 7 has little signifi-

* In Moragne, the United States argued that Section 7:

cance. In the United States’ view, Section 7 “serves

merely ‘as a jurisdictional savings clause.’” See Br. U.S.

Am. Cur. 20 (quoting 477 U.S. at 221). In other

words, it preserves the availability of a state forum but

does not save the state remedy from preemption.

The Court, however, has continued to recognize that

Section 7 does more than preserve a state forum for a

DOHSA claim. Rather, it also reflects a congressional

purpose to preserve state wrongful death remedies for

those torts which occur in territorial waters. See Off-

shore Logistics, 477 U.S. at 224-25. Thus, when Con-

gress considered the issue of whether the federal maritime

law should preempt state wrongful death remedies, it

limited the scope of that preemption to those torts occur-

ring on the high seas and expressly authorized the contin-

uation of the practice of applying state wrongful death

remedies to those torts occurring on territorial waters.

Cf. Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348

U.S. 310, 317-21 (1955) (rejecting application of ad-

miralty law to insurance dispute noting that Congress

had expressly authorized state insurance regulation);

Cooley v. Board of Wardens, 53 U.S. (12 How.) 299,

319 (1852) (upholding state law imposing liability for

failing to use pilot noting that Congress had expressly

authorized state regulation).

Minimizing the significance of the DOHSA as an ex-

pression of Congress’ purpose to preserve state remedies

manifests a legislative purpose that State laws governing

wrongful death should continue to be available, according to

their terms, where no remedy is provided by the Death on

the High Seas Act. But neither the language of the Act, nor

its legislative history, gives any indication that this preser-

vation of State law was intended by Congress to preclude the

federal courts from vindicating the peculiarly federal, mari-

time interest at issue in this case—namely, the right of a

person acting as a seaman to be supplied a seaworthy vessel

on which to work.

Br. U.S. Am. Cur. 18, Moragne, 398 U.S. 375 (No. 175 O.T. 1969)

(citation omitted).

in territorial waters, the United States contends that “Sec-

tion 7 does not suggest that state remedies applicable to

deaths in territorial waters would continue to apply not-

withstanding the creation of the general federal maritime

remedy for wrongful death in Moragne.” Br. U.S. Am.

Cur. 20. This argument is flawed in multiple respects.

First, it attributes to Congress an extraordinary degree

of prescience. It ignores that Congress legislated against a

jurisprudential background that included this Court’s de-

cisions upholding the application of state wrongful death

and survival remedies to maritime torts, see Sherlock, 93

U.S. at 104; Steamboat Co. v. Chase, 83 U.S. (16 Wall.)

at 533, as well as the values of stare decisis. See supra,

pp. 6-8.

It likewise ignores that the impetus for the creation of

the Moragne remedy—the emergence of the strict liability

doctrine of unseaworthiness—had not been held to im-

pose on a vessel owner an absolute duty, independent of

negligence, until this Court’s decision in Mahnich vy.

Southern S.S. Co., 321 U.S. 96 (1944), and Seas Ship-

ping Co., Inc. v. Sieracki, 328 U.S. 85 (1946), a quarter

century after the DOHSA’s enactment. See Mitchell v.

Trawler Racer, Inc., 362 U.S. 539, 548-49 (1960). In

enacting the DOHSA, Congress simply had no reason to

anticipate the Court’s creation of a federal maritime

remedy for wrongful death fifty years in the future. In-

deed, Moragne took a far more restrained approach than

that which the United States argues for here, reasoning

only that the DOHSA did not intend to preserve state

remedial schemes which denied recovery for the evolving

and uniquely federal maritime duty of seaworthiness. See

398 U.S. 397-400; see also pp. 20-23 infra.

Moreover, if Congress had viewed the existing state

wrongful death remedies as being either inadequate in

their coverage or as providing excessive redress, it could

have made the DOHSA remedy applicable to those torts

occurring on territorial waters and preempted state law.

Its failure to do so is especially significant given that the

same Congress enacted not only the DOHSA, thus ex-

tending a wrongful death remedy to the high seas where

state remedies were frequently inadequate, see Offshore

Logistics, 477 U.S. at 213-14, but also the Jones Act,

which applies in territorial waters and limits recovery to

pecuniary loss preempting more generous state remedies.

As the Court observed in Moragne, the state remedies

which the DOHSA left undisturbed in territorial waters

“not only were familiar but also may actually have been

more generous than the remedy provided by the new

Act.” 398 U.S. at 398. If, as petitioners and their amici

argue, there is a national interest in having a uniform

federal wrongful death remedy limited to pecuniary loss,

then Congress should make that choice.

Indeed, were Congress to enact legislation providing a

remedy for wrongful death on territorial waters, this

Court would assess its preemptive effect “ ‘start[ing] with

the assumption that the historic police powers of the

States [are] not to be superseded by . . . [a] Federal

Act unless that [is] the clear and manifest purpose of

Congress.’” Cipollone v. Liggett Group, Inc., 112 S.Ct.

2608, 2617 (1992) (quoting Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947)). In the event the

Statutory scheme contained an express preemption provi-

sion, the Court would “fairly but—in light of the strong

presumption against pre-emption—narrowly construe the

precise language” of the provision. /d. at 2621. And

in assessing any claim of conflict or implied preemption,

the Court would “never assume[] lightly that Congress

has derogated state regulation, but instead . . . address[ ]}

claims of pre-emption with the starting presumption that

Congress does not intend to supplant state law.” New

York State Conf. of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 115 S.Ct. 1671, 1676 (1995). In

short, the reluctance to fiud preemption and the require-

ment that Congress provide clear and unambiguous evi-

dence of such purpose is born out of respect for the

principles of federalism and state sovereignty embodied

in the text and structure of the Constitution. Cipollone,

112 S.Ct. at 2625-26 (Blackmun, J., joined by Kennedy,

J., and Souter, J., concurring in part, concurring in the

judgment in part and dissenting in part); cf. Silkwood v.

Kerr-McGee Corp., 464 U.S. 238, 255-57 (1984)

(Atomic Energy Act did not preempt state law punitive

damages award).

The high degree of restraint exercised by the Court

in statutory preemption cases is even more appropriate

where, as here, the rule which assertedly preempts the

States’ police powers is not the product of legislative

enactment but of judicial lawmaking. For when Con-

gress acts, the States can use whatever political influence

they have to limit the preemptive scope of a statute. And

Congress, with its superior fact finding resources, is better

suited to determine whether the federal interest in inter-

state uniformity requires the preemption of state laws.

Ill. THE MORAGNE REMEDY DOES NOT PREEMPT

STATE WRONGFUL DEATH REMEDIES

Ignoring the role of the States in our federal system,

petitioners and their amici view the judicially created

Moragne remedy as a decisive broadside on the admiralty

tradition of applying state wrongful death and survival

remedies. See Pet. Br. 31. In their view, state law has

no place in deciding the wrongful death claims for a non-

seaman arising from a tort occurring within a State’s

territorial jurisdiction. /Jd. As explained below, assign-

ing this broad preemptive force to Moragne finds no sup-

port in the analytical justification on which the decision

rested and ignores the States’ substantial interest in regu-

lating tortious conduct occurring within their borders.

Moragne can and should be read in a manner which

accommodates the interests of both the States and the

Federal Government.

In Moragne, the widow of a longshoreman brought a

wrongful death suit against a vessel owner alleging sep-

arate counts of negligence and unseaworthiness of the

vessel. 398 U.S. at 376. The defendants in the suit, the

vessel owners and the impleaded decedent’s employer,

moved to dismiss the unseaworthiness count on the ground

that The Harrisburg barred relief under the general mari-

time law and that, under Florida’s wrongful death statute,

unseaworthiness was not a basis of liability. Jd. The dis-

trict court granted the motion and the court of appeals

affirmed. /d. at 376-77.

This Court reversed, overruling The Harrisburg. In

particular, the Court noted three anomalies which had

arisen with the admiralty’s recognition of the absolute

and distinctly maritime duty to provide a seaworthy vessel

(a duty which has never been extended to non-seamen’

passengers). Thomas J. Schoenbaum, Admiralty and

Maritime Law § 4-5, at 134 (1987). By 1970, “[t]he

unseaworthiness doctrine ha[d] become the principal vehi-

cle for recovery by seamen for injury or death, over-

shadowing the negligence action made available by the

Jones Act, and . . . ha[d] achieved equal importance for

longshoremen and other harbor workers to whom the

duty . . . was extended because they perform work on

the vessel traditionally done by seamen.” Moragne, 398

U.S. at 399 (citations omitted). The Court was thus

properly concerned with the existing incongruities which

prevented the full vindication of this uniquely federal duty

and which, in some instances, denied those to whom the

duty was owed a remedy for wrongful death.”

' The Court set forth the three anomalies as follows: The first

was that “within territorial waters, identical conduct violating

federal law .. . produces liability if the victim is merely injured,

but frequently not if he is killed.” 398 U.S. at 395. The second

was that “identical breaches of the duty to provide a seaworthy

ship, resulting in death, produce liability outside the three mile

limit [where the DOHSA applied] but not within the territorial

waters of a State whose local statute excludes unseaworthiness

claims.” Jd. (citation omitted). The third was that a seaman

“covered by the Jones Act—is provided no remedy for death caused

by unseaworthiness within territorial waters, while a longshore-

man, to whom the duty of seaworthiness was extended ... does

have such a remedy when allowed by a state statute.” Jd. at 395-96.

The Moragne Court made clear, however, that its pur-

pose in creating a wrongful death remedy under the

general maritime law was to effectuate this uniquely federal

duty and not to otherwise preempt state wrongful death

remedies. As the Court stated, “[o]ur recognition of a

right to recover for wrongful death under general maritime

law will assure 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.” 398 U.S.

at 401 (emphasis added). The Court further observed:

The incongruity of forcing the States to provide

the sole remedy to effectuate duties that have no

basis in state policy is highlighted in this case. The

Florida Supreme Court ruled that the state wrongful-

death act was concerned only with “traditional

common-law concepts,” and not with “concepts pe-

culiar to tuasitime law such as ‘unseaworthiness’ and

the comparative negligence rule.” It found no reason

to believe that the Florida Legislature intended to

cover, or even considered, the “completely foreign”

maritime duty of seaworthiness. Federal law, rather

than state, is the more appropriate source of a remedy

for violation of the federally imposed duties of mari-

time law.

398 U.S. at 401 n.15 (citation omitted).”

As explained above, the uniquely federal maritime doc-

trine of unseaworthiness imposes a duty on a vessel owner

vis-a-vis seamen and a limited class of maritime em-

ployees."* It provides no redress to persons such as the

11 It bears noting that in Moragne, the defendants did not chal-

lenge the plaintiff’s right to pursue a wrongful death claim based

on negligence because Florida’s statute encompassed this duty.

See 398 U.S. at 376.

12 In 1972, Congress amended the Longshore and Harbor Workers’

Compensation Act (LHWCA), 86 Stat. 1251, 383 U.S.C. §§ 901-950,

abrogating the right of covered employees to recover from vessel

owners for injury and death under the unseaworthiness doctrine,

thus rendering Moragne inapplicable on its facts. See Miles, 498

U.S. at 28.

decedent, a recreational user of watercraft, or for that

matter, passengers and guests on either recreational or

commercial vessels. It is thus implausible that in creating

a remedy to vindicate a uniquely federal policy, the Court

intended to preempt the application of state wrongful

death statutes even where, as here, the underlying duties

which have been breached—negligence, strict liability,

and breach of implied warranties of merchantability and

fitness for purpose in the design and sale of a product—

are not exclusively federal. To do so is to ignore that

“[t]he State and Federal Governments jointly exert regu-

latory powers today as they have played joint roles in the

development of maritime law throughout our history” and

that “allocations of jurisdiction have been carefully wrought

to correspond to the realities of power and interest and

national policy.” Romero, 358 U.S. at 374-75; see also

Huron Portland Cement Co. v. City of Detroit, 362 U.S.

440, 442 (1960) (“[T]he states and their instrumentali-

ties may act, in many areas of interstate commerce and

maritime activities, concurrently with the federal gov-

ernment.” ).

To be sure, admiralty courts have incorporated these

duties into the general maritime law. See, e.g., East River

S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858,

865-66 (1986). But to decide that these duties are within

the cognizance of admiralty is not to render them the

subject of exclusive federal interest. To the extent that

the breach of these duties violates state law and occurs

within a State’s territorial jurisdiction, the States retain

a substantial interest in. enforcing them. Consistent with

the reasoning of Moragne itself, the Court should hold

that the general maritime remedy for wrongful death pro-

vides a remedy for the breach of an exclusively federal

duty but does not preempt a state remedy when the under-

lying duty is cognizable under state law.”

Petitioners cite Miles arguing that it “specifically concluded

that ‘Moragne intended to create a general maritime wrongful

death action applicable beyond the situation of longshoremen.’”

Pet. Br. 22 (quoting 498 U.S. at 30) (emphasis added by petition-

IV. THE MORAGNE REMEDY SHOULD NOT BE

EXTENDED TO PREEMPT STATE WRONGFUL

DEATH REMEDIES

As explained above, Moragne and Miles were limited

holdings recognizing a wrongful death remedy under the

general maritime law in order to vindicate the uniquely

federal duty of a vessel owner to provide seamen (and

formerly longshoremen) with a seaworthy vessel. More-

over, the various policy arguments put forth by petitioners

and their amici provide no justification for the Court to

disregard the congressional judgment manifested in the

DOHSA to preserve state wrongful death remedies for

torts occurring in the territorial waters. They likewise fall

far short of the threshold this Court has traditionally

required for overruling its prior decisions, a relevant in-

quiry given the numeous cases such as Sherlock and

Steamboat Co. v. Chase upholding the application of state

wrongful death remedies to maritime torts. Aside from

these considerations, the arguments are not persuasive in

their own right.

ers); see also Br. U.S. Am. Cur. 22. Miles, however, involved a

seaman, a person to whom the uniquely maritime duty of sea-

worthiness is owed. See Mahnich, 321 U.S. at 103; see also Miles,

498 U.S. at 21-28. The situation was thus analogous to that in

Moragne (notwithstanding that in 1972 Congress amended the

LHWCA to bar longshoremen from suing vessel owners for un-

seaworthiness), in that with the evolution of the distinctly mari-

time duty of seaworthiness, federal law should provide the remedy

for its breach. See id. at 21-30. Miles did not hold that the Moragne

remedy was applicable to persons such as the decedent here and

has preclusive effect. See id. at 37 (“We hold that there is a

general maritime cause of action for the wrongful death of a

seaman[.]”).

Nor does Miles’ holding barring the recovery of non-pecuniary

damages under the Moragne action aid petitioners. As the Court

recognized, it is not free to fashion federal maritime law as it

pleases but must respect Congress’ judgment. See 498 U.S. 32-33;

36-37. Because Congress expressly made the judgment to preserve

state wrongful death remedies in the territorial seas, see supra

pp. 14-19, and this case does not involve the uniquely maritime duty

of seaworthiness, state remedies must be recognized in admiralty.

The United States, for example, asserts that applying

state wrongful death remedies that provide “a more gener-

ous measure of damages than the federal remedy . . .

would create at least three unjustifiable ‘anomalies’ . . .

similar to those that Moragne sought to eliminate.” Br.

U.S. 17. According to the United States, these anomalies

are that: (1) “identical breaches of maritime duties would

be subject to different measures of damages, solely be-

cause the victim of one breach was killed whereas the

victim of another was injured”; (2) “beneficiaries of per-

sons 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”;

and (3) “beneficiaries of non-seamen would likewise in

some cases be eligible for a broader range of remedies

than beneficiaries of seamen.” Jd. This argument is

meritless.

As for the latter two purported anomalies, the United

States ignores that the less favorable treatment accorded

DOHSA and Jones Act claimants were the choices Con-

gress made in enacting these statutes. As explained above,

in the case of the DOHSA, Congress both preserved and

preempted state remedies depending upon the situs of the

tort; in the case of the Jones Act, Congress preempted

State remedies depending upon the status of the employee.

See supra 14-19.

With respect to the more favorable treatment accorded

the survivors of those killed in territorial waters vis-a-vis

those killed on the high seas, the United States ignores

that the DOHSA authorizes a greater recovery even on

the high seas when the law of a foreign State permits it.

See 46 App. U.S.C. § 764. As Section 4 provides,

“[w]henever a right of action is granted by the law of any

foreign State . . . such right may be maintained .. .

without abatement in respect to the amount for which

recovery is authorized, any statute of the United States

to the contrary notwithstanding.” Jd. Under this section,

admiralty courts have upheld awards for non-pecuniary

damages including pain and suffering and mental distress

where permitted by foreign law notwithstanding the

DOHSA’s general prohibition of such recoveries. See Noel

v. Linea Aeropostol Venezolana, 260 F. Supp. 1002, 1006

(S.D.N.Y. 1966). Given that Congress affirmatively sanc-

tioned greater recoveries under foreign law notwithstand-

ing the fortuity of such, it is entirely justifiable that the

beneficiaries of those killed within a State’s territorial

jurisdiction recover the full measure of damages provided

by its law.

With respect to the treatment accorded seamen and non-

seamen, statutory law such as the Federal Employers Lia-

bility Act (which the Jones Act incorporates) and state

workers’ compensations statutes have long precluded em-

ployees from recovering from their employers the full

scope of common law damages. Dan B. Dobbs, Torts

And Compensation 742 (1985). Given that tort law has

long provided different and less extensive remedies for

injury occurring within the employment relationship than

it does under the common law, it would be aberrant if

the admiralty did not recognize a similar dichotomy.

Moreover, while the United States professes solicitude for

the welfare of seamen, its position would deny their sur-

vivors the full measure of damages in third party suits

such as those that might be brought against the manu-

facturers of defective safety equipment.

No more persuasive is the United States’ contention

that state remedies should be preempted because “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 in-

jured.”"* Br. U.S. Am. Cur. at 17. This is largely a

14The cases on which this argument is premised provide no

support for the broad reading given them by the United States.

Two involved personal injuries incurred by seamen, see Carlisile

Packing Co. v. Sandanger, 259 U.S. 255 (1922); Chelentis v.

Luckenbach S.S. Co., 247 U.S. 372 (1918): others involved dif-

ferent liabilities of commercial shipping interests. See Kermarec

v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959) (action

by guest of crew member against vessel owner); Pope & Talbot,

distinction without a difference because the maritime law

generally authorizes the recovery of the types of damages

traditionally available under state law such as those for pain

and suffering, loss of society, and punitive damages. See

Thomas J. Schoenbaum, Admiralty and Maritime Law

§ 4-12, at 142-43; § 4-14, at 145 (1987).

To the extent there is a substantive difference between

the damages available under state and federal law, this

incongruity can be as effectively cured by recognizing the

authority of the States under the savings clause to set the

measure of damages for those personal injury actions not

resulting in death which occur within their waters and

which are not otherwise subject to the Jones Act or

LHWCA. Cf. Hahn v. Ross Island Sand & Gravel Co.,

358 U.S. 272 (1959) (per curiam) (employee injured

while working on barge in navigable waters could pursue

State law negligence claim). This approach would be con-

sistent with the expectations of recreational boaters, who

§ 12301, are subject to extensive state boating safety reg-

ulation, see Appendix, and to prosecution under state law

for criminal acts committed within territorial waters not-

Inc. v. Hawn, 346 U.S. 406 (1953) (unseaworthiness claim by repair

worker against vessel owners); Workman v. City of New York,

179 U.S. 552 (1900) (suit by owner of British barkentine for

damages sustained in collision). These cases thus involved tradi-

tional concerns of admiralty law.

The remaining cases, which are products of the Jensen era, in-

volved personal injuries incurred by shipyard workers while working

on completed vessels. See Messel v. Foundation Co., 274 U.S. 427

(1927); Robins Dry Dock & Repair Co. v. Dahl, 266 U.S. 449

(1925). But as Gilmore and Black explain, the Court subsequently

held that “repair work on a completed vessel was within the twilight

zone [of overlapping state and LHWCA coverage], with the result

that the state compensation commission was required to make an

award in such a case if the injured worker elected to pursue his

state remedy.” Gilmore and Black, at 421. These cases thus do not

support the United States’ broad assertion that “the interest in

maritime uniformity has long been held to preclude the application

of state remedies” for tortious injuries which do not result in

death. Br. U.S. Am. Cur. 15.

withstanding the maritime locus of the act. See Stolz,

Pleasure Boating and Admiralty, 51 Cal. L. Rev. at 667

n.27; 18 U.S.C. §7, § 13. If States are competent to

define, prosecute and punish criminal homicides com-

mitted in territorial waters, they are no less competent to

provide civil remedies for wrongful death."

Indeed, far from curing unjustifiable anomalies, adopt-

ing petitioners’ proposed regime would lead to a stream

of perverse results. Products such as a jet ski are com-

monly used not only in territorial waters which are within

the admiralty’s jurisdiction but also in inland waters (such

as lakes) which are indisputably not. Under petitioners’

regime, the heirs of one killed by a defective product on

the navigable waters (such as respondents) would be de-

nied the same measure of recovery as the heirs of one

killed on inland waters notwithstanding that both deaths

were caused by the same tortious act. But if both inci-

dents occurred within the same State’s territorial jurisdic-

tion, there is no justification for the disparate treatment.

A notion as amorphous as the need for uniformity plainly

does not justify this Court’s creation of a common law

rule which allows a tortfeasor to externalize the costs of

its conduct solely because the injury occurred on the

navigable waters. Cf. William M. Landes & Richard A.

Posner, The Economic Structure Of Tort Law 186-87

(1987). And surely admiralty tort law is as concerned

15 Petitioners suggest the existence of another anomaly in asking

“What was to happen when a death occurred in waters at the

border of two states—only one of which offered a maritime death

remedy?” Pet. Br. 19. Petitioners do not, however, point to a

single case in which this happened. See id. Moreover, today every

State has enacted a wrongful death statute governing most if not

all breaches of tort duties, see Moragne, 398 U.S. at 390; to the

extent that a State may not recognize the duty of seaworthiness,

Moragne fills the void.

Petitioners’ further question—‘“Was it fair, in a federal] system

of law, for two claimants to receive different compensation under

circumstances indistinguishable apart from their state citizen-

ship?” (Pet. Br. 19)—is answered by, inter alia, the savings to

suitors clause which preserves the right of suitors to their state

remedies.

as state tort law with creating the proper incentives for

reducing accidents.

Beyond these perverse results, because of the reach of

the admiralty jurisdiction adopting petitioners’ rule will

prompt much wasteful litigation over whether seemingly

inland bodies of waters are within it."* For example, an

admiralty court properly declined to exercise jurisdiction

over a tort occurring on Skaneateles Lake, one of New

York State’s finger lakes. See Reynolds v. Bradley, 644

F. Supp. 42 (N.D.N.Y. 1986). Yet under the Court’s

precedents, torts occurring a short distance away on the

Cayuga and Seneca Lakes are within the admiralty juris-

diction because these lakes are connected to the New

York State Barge Canal System. Cf. The Robert W.

Parsons, 191 U.S. 17 (1903); Ex Parte Boyer, 109 U.S.

629 (1884)."" As long as the legal consequences are to

This Court has long held that the admiralty jurisdiction en-

compasses those inland waters which “form, in their ordinary

condition by themselves, or by uniting with other waters, a con-

tinued highway over which commerce is or may be carried on with

other States or foreign countries.” The Daniel Ball, 77 U.S. (10

Wall.) 557, 568 (1871). While the Court has required that inland

waters be “navigable in fact,” this standard is quite broad, encom-

passing waters not only “when they are used,” but also when they

are “susceptible of being used, in their ordinary condition, as high-

ways for commerce.” Jd. That a body of water has numerous

obstructions such as falls and rapids which require portages does

not bar the exercise of admiralty jurisdiction. See The Montello,

87 U.S. (20 Wall.) 430, 440-43 (1874); Schoenbaum § 3-3, at 67

n.24. Nor does it matter that the “commerce” conducted was the

floating of rafts of bundled lumber. See, e.g., The Montello, 87

U.S. (20 Wall.) at 441. As The Montello noted, “the true test

of the navigability of a stream does not depend on the mode by

which commerce is, or may be, conducted, nor the difficulties at-

tending navig.u.ion.” 87 U.S. (20 Wall.) at 441. “[T]he liberal

definition given to ‘customary modes of trade and travel on water,’”’

Finneseth v. Carter, 712 F.2d 1041, 1044 (6th Cir. 1983) (quoting

The Daniel Ball, 77 U.S. (10 Wall.) at 563), suggests that numerous

inlar.d waters are within the admiralty jurisdiction.

17 This example is by no means unique. There are numerous

other inland lakes and waterways throughout the United States

which are now subject to the admiralty jurisdiction. See Ralph

vary so significantly from admiralty to state jurisdiction,

it is reasonable to expect that all courts, federal as well

as state) will be inundated with litigation over such issues,

an ironic result given that this Court most recently re-

jected a proposal to reformulate the admiralty jurisdiction

test on the ground that it would “invit{[e] complex argu-

ment in a trial court and a virtually inevitable appeal.”

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

115 S.Ct. 1043, 1055 (1995).

Ironically, petitioners’ proposed regime undermines the

uniform application of wrongful death remedies by creat-

ing not two, but three remedial schemes applicable to rec-

reational users of the waterways: (1) the DOHSA for

the high seas, (2) a common law federal maritime remedy

for the navigable waters within a State (whose measure

of damages will, as in the common law itself, be the sub-

ject of continued litigation) and (3) the State’s remedy

for all other waterborne deaths. Federal courts, of course,

do not have the power to create a common law applicable

to all torts. See Erie R.R. Co. v. Tompkins, 304 U.S. 64

(1938). Thus, absent congressional preemption of state

wrongful death remedies for inland tort claims, there is

no possibility of ever having a uniform body of law gov-

erning Yamaha’s conduct. The Court should therefore

reaffirm the authority of the States to remedy all tortious

waterborne deaths occurring within their jurisdiction.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

McCaughan, Federal Maritime Jurisdiction Over Inland Intrastate

Lakes, 26 Wash. & Lee L. Rev. 1 (1969).

September 15, 1995

Respectfully submitted,

RICHARD Rupa *

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

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APPENDIX

SELECTED STATE RECREATIONAL BOATING

SAFETY STATUTES

Ala. Code §§ 33-5-1—33-5-36; 33-5-50—33-5-8 1

Alaska Stat. Ann. §§ 05.25.010—05.25.100

Ariz. Rev. Stat. Ann. §§ 5-301—S5-396.01

Ark. Code Ann. §§ 27-101-101—27-101-107; 27-101-201

—27-101-205

Cal. Harb. & Nav. §§ 651—668.1

Colo. Rev. Stat. §§ 33-13-101—33-13-114

Conn. Gen. Stat. §§ 15-121—15-140u

Del. Code Ann. tit. 23, §§ 2111—2126; 2201—2225;

2301—2308

Fla. Stat. Ann. §§ 327.01—327.803

Ga. Code Ann. §§ 52-7-1—52-7-51

Haw. Rev. Stat. §§ 267-1—267-15

Idaho Code §§ 67-7001—67-7050

Ill. Ann. Stat. ch. 625, 94 45/1-1—45/1-5; 45/2-1—

45/2-5; 45/3-1—45/3-14

Ind. Code §§ 14-1-1-1—14-1-1-63

Iowa Code §§ 462A. 1—462A.85

Kan. Stat. Ann. §§ 32-1101—32-1180

Ky. Rev. Stat. Ann. §§ 235.010—235.330

La. Rev. Stat. Ann. §§ 34:851.1—34:851.30

Me. Rev. Stat. Ann. tit. 12, §§ 7791—7805

Md. Nat. Res. §§ 8-701—8-814

Mass. Ann. Laws ch. 90b, §§ 1—19

Mich. Comp. Laws §§ 281.1001—281.1190

Minn. Stat. $§ 86B.001—86B.815

Miss. Code Ann. §§ 59-21-1—59-21-153

Mo. Ann. Stat. §§ 306.090—306.225

Mont. Code Ann. §§ 23-2-501—23-2-536

Neb. Rev. Stat. §§ 37-1201—37-1274

Nev. Rev. Stat. §§ 488.015—488.290; 488.355—488.365

N.H. Rev. Stat. Ann. §§ 270:1—270:74-b; 270-D:1—

270-D:9

N.J. Stat. Ann. §§ 12:7-23.1—12:7-69

N.M. Stat. Ann. §§ 66-12-1—66-12-23

N.Y. Nav. Law §§ 40—49-a; 71<—79

N.C. Gen. Stat. §§ 75A-1—75A-19

N.D. Cent. Code §§ 20.1-13-01—20.1-13.1-14

Ohio Rev. Code Ann. §§ 1547.01—1547.69

Okla. Stat. tit. 63, $§ 801—825

Or. Rev. Stat. §§ 830.005—830.550

30 Pa. Cons. Stat. Ann. §§ 5101—5104; 5121—5126;

5501—5504; 58 Pa. Code §§ 91.1—109.6

R.I. Gen. Laws §§ 46-22-1—46-22-22; 46-22.2-1—46-

22.2-8; 46-27-1—46-27-4

S.C. Code Ann. §§ 50-21-10—50-21-170; 50-21-810—

50-2 1-860

S.D. Codified Laws Ann. §§ 42-8-1—42-8-102

Tenn. Code Ann. §§ 69-10-101—69-10-224

Tex. Parks & Wild. Code Ann. §§ 31.001—31.129

Utah Code Ann. §§ 73-18-1—73-18-23

Vt. Stat. Ann. tit. 23, $$ 3301—3318

Va. Code Ann. §§ 29.1-734—29.1-750

Wash. Rev. Code §§ 88.12.010—88.12.275

W. Va. Code §§ 20-7-1—20-7-23

Wis. Stat. §§ 30.50—30.70

Wyo. Stat. $§ 41-13-202—41-13-219

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.