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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 199

## Text

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,

v.

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

“BESTAVAILABLE COPY"

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 .....................

A

APPENDIX:

Selected State Recreational Boating Safety Stat-

ES ILD ae A OD

Page

iv

14

20

24

30

la

iv
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

v
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

vi
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.

2

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].”

3

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

4

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,

5

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.

6

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).

7

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

8

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.

9

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;

10

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.

11

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

12

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.

13

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.

14

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

15

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

16

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:

17
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).

18

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

19

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

20

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

21

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.

22

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.

23

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-

24

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.

25

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

26

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,

27

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
register their vessels with their States, see 46 U.S.C.
§ 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.

28

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.

29

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

30

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

31
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

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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

2a

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0582%3A12. Public record. Not legal advice.