Amicus Curiae Brief — Lewis v. Brunswick Corp.

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No. 97-288

IN THE

Supreme Court of The United States

OCTOBER TERM, 1997

VICKY LEWIS, et ai.,

Petitioners,

V.

BRUNSWICK CORP..,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF OF AMICUS CURIAE TRIAL LAWYERS FOR

PUBLIC JUSTICE, P.C., IN SUPPORT OF PETITIONERS

Leslie A. Brueckner, Esq.

(Counsel of Record)

Arthur H. Bryant, Esq.

Trial Lawyers for Public Justice, P.C.

1717 Massachusetts Ave., N.W.

Suite 800

Washington, D.C. 20036

(202) 797-8600

Counsel for Amicus Curiae

December 29, 1997

SSS ===

TABLE OF CONTENTS

TABLE OF AUTHORITIES

A. The Coast Guard’s Decision Net To Regulate

Propeller Guards

ARGUMENT:

THE COAST GUARD’S DECISION NOT TO

REGULATE PROPELLER GUARDS DOES NOT

PREEMPT PETITIONERS’ COMMON-LAW

Under Myrick, The Coast Guard’s Decision Not To

Regulate Propeller Guards Leaves The States Free

To Act As They Wish

Even If The Coast Guard’s Decision Not To

Regulate Propeller Guards Preempts State

Regulation, It Does Not Expressly Or Impliedly

Preempt Petitioners’ Common-Law Claims

A. Petitioners’ Claims Are Not Expressly

Preempted Because Congress

Expressly Preserved Them

1. The Boat Safety Act's

Preemption Provision Does Not

Encompass Common-Law

0 ee Pee ee

2. The Boat Safety Act’s Savings

Clause Expressly Preserves

C. Even Assuming That Implied

Preemption Analysis Can Be Reached

Here, Petitioners’ Claims Are Not

Preempted Because They Do Not

Conflict With Federal Law ............

CONCLUSION ..cccccccesossseceeen eum

**

TABLE OF AUTHORITIES

Cases: Page:

American Tobacco Co. v. Patterson, 456 U.S. 63

i eh oe bie bleSelesccceccees 19

Arkansas Elec. Co-Op v. Arkansas Pub. Serv. Comm'n,

EO CCL” eee 1!

Boyle v. United Technologies Corp., 487 U.S. 500

TR IGS ole oe ce boc donb bees 14

California Fed. Sav. and Loan Ass'n v. Guerra, 479

I EEE OOS OTE E 9

Carstensen v. Brunswick Corp. , 49 F.2d 430 (8th

Cir. 1995), cert. denied, 116 S. Ct. 182 (1995) ..... 23

Cipollone v. Liggett Group, Inc., 50S U.S. 504

EE ee ee ee 1, 23, 24, 26

Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

Se 18

Td. 9

Florida Lime & Avocado Growers v. Paul, 373 U.S.

LEE EE 13, 14

Freightliner Corp. v. Myrick, \15 S. Ct. 1483

ce wee ce< passim

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

(Pee ae ae Ae eee 23

Hillsborough County, Fla. v. Auto Med. Labs., 471

tS | Ber eerery ys irra eee 14, 15, 27

Hines v. Davidowitz, 312 U.S. 52 (1941) .......... 14

Medtronic v. Lohr, 116 S. Ct. 2240 (1996) ...... passim

Moore v. Brunswick Bowling & Billiards Corp., 889

S.W.2d 246 (Tex.), cert. denied, 115 U.S. 664

Pe See ee ee ee 18, 29-30

Morrison-Knudsen Const. v. Director, Office of

Workers Comp. Programs, 461 U.S. 624 (1983)... .. 18

Mowery v. Mercury Marine, 773 F. Supp. 1012 (N.D.

OD Pe ee a et eae ee ee 23

Paccar, Inc. v. NHTSA, 573 F.2d 632 (9th Cir.),

cert. denied, 439 U.S. 862 (1978) ............. 10

Puerto Rico Dep't of Consumer Affairs v. Isla

Petroleum Corp., 485 U.S. 496 (1988) .......... 11

Rice v. Santa Fe Elevator Corp. , 337 U.S. 218

CR oc hemes cde deneeeneeeans 8, 13, 14

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) .... 14

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) ... 9

United States v. James, 478 U.S. 597 (1986) ........ 21

iV

Statutes and Regulations:

wens 5

National Traffic and Motor Vehicle Safety Act of

1966, 15 U.S.C. §§ 1381 ef seg. (1982).......... 10

Federal Boat Safety Act of 1971, 46 U.S.C.

$§ 4301 ef seq. (1988 & Supp. V. 1993) ...... passim

46 U.S.C. § 4302%(aX1) ...........-. so. RBM

ee SP eee 18

Ce a eee ree 3

SEES OE Ee 18

a passim

NR 256 bee 6s Ss vou 00 18

ie 6 5 Be es 6 58 HO SE es 18

Ce passim

49 C.F.R. § 571.121(S3) (1993) ................ 10

Legislative History:

S. Rep. No. 248, 92d Cong., Ist Sess. (1971),

reprinted in 1971 U.S.C.C.A.N. 1333... . 15-16, 22, 29

Vv

INTEREST OF AMICUS CURIAE'

Trial Lawyers for Public Justice ("TLPJ") is a national public

interest law firm dedicated to pursuing justice for the victims of

corporate and governmental abuses. Through involvement in

precedent-setting and socially significant litigation, TLPJ seeks

to ensure that tort law fully serves its dual purposes --

compensating those injured by wrongful conduct and deterring

similar conduct in the future. TLPJ is gravely concerned that,

if the tort system is closed to innocent victims of unguarded

boat propellers through improper application of the preemption

doctrine in this case, neither of these purposes will be served.

This case, moreover, has implications far beyond the narrow

issue of preemption under the Federal Boat Safety Act of 1971.

If the decision below is permitted to stand, it could massively

broaden the scope of federal preemption far beyond what

Congress ever intended. Under the Eleventh Circuit's

reasoning, any federal decision not to regulate could be deemed

to have preemptive force, regardless of the reason for federal

inaction and regardless of the extent to which Congress made

Clear its intent nor to intrude on the States’ regulatory powers

and/or strip individuals of their common-law remedies. This

approach turns the “strong presumption against pre-emption,”

Cipollone v. Liggett Group, Inc., 50S U.S. 504, 523 (1993), on

its head and creates, in its place, a powerful presumption in

favor of federal preemption that arises simply by virtue of

agency inaction. Not only would this constitute a grievous blow

against the traditional rights of victims to seek redress for

' Letters of consent to the filing of this brief have been filed with the

Clerk. No counsel for either party authored the brief in whole or in part, and

nO person or entity other than amicus curiae made any monetary contribution

to ts preparation or submission.

injuries caused by dangerous products, but it would strip States

of their historic power to protect the health and welfare of their

citizens. Reversal is appropriate to prevent this deep

encroachment on the rights of States to protect their citizens and

the rights of citizens to use the common law to protect

themselves -- rights that neither Congress nor the Coast Guard

ever expressed any intention to restrict.

STATEMENT

This case presents the question of whether a claim that a boat

engine was defective because it lacks a propeller guard is

preempted by the Federal Boat Safety Act of 1971, 46 U.S.C.

§§ 4301 er seq. (1988 & Supp. V. 1993) ("Boat Safety Act" or

"Act"), and by a decision by the United States Coast Guard nor

to issue regulations requiring propeller guards on all motor

boats. The Eleventh Circuit held that such claims are impliedly

preempted by the Act, even though: (1) there is no federal

regulation or standard relating to propeller guards; (2) the Boat

Safety Act’s preemption provision only applies where there has

been "a [federal] regulation prescribed under section 4302 of

{the Act]," 46 U.S.C. § 4306; and (3) the Act’s savings clause

provides that compliance with any such regulations issued

thereunder “does not relieve a person from liability at common

law or under State law." 46 U.S.C. § 4311(g). That decision

is in direct conflict with Freightliner Corp. v. Myrick, 115 S.

Ct. 1483 (1995), and cannot be reconciled with the plain

language of the Boat Safety Act, which expressly preserves all

common-law claims.

A. The Coast Guard’s Decision Not To Regulate

Propeller Guards.

In recent years, public attention has become increasingly

focused on motor-boat propellers "as instruments of devastation

that are injuring and killing large numbers of people." Joint

2

Appendix ("J.A.") 174. Propeller-related injuries “are often

characterized by massive trauma, including significant blood

loss or death.” J.A. 170. Between 1976 and 1990, the Coast

Guard officially reported 175 fatalities and 1,438 non-fatal

injuries in its Boating Statistics category “struck by boat or

propeller" -- an average of approximately 100 per year. /d.

The injuries associated with unguarded boat propellers have

given rise to numerous lawsuits against marine engine

manufacturers since the 1970s. J.A. 239. However, despite

this litigation, as of 1992, no major marine engine manufacturer

had equipped any of its boats with any type of propeller guard

to protect people in the water. /d.

The growing public controversy over the use of propeller

guards led the Coast Guard to consider whether to begin the

process of developing a federal regulation mandating their use

on passenger boats. Under the Boat Safety Act, the Coast

Guard has the authority to "prescribe regulations establishing

minimum safety standards" for recreational boats. 46 U.S.C.

§ 4302(a)(1). The National Boating Safety Advisory Council

(the “Advisory Council") is charged with assisting the Coast

Guard in evaluating the need for safety regulations. See id. §

4302(c)(4). In 1988, at the Coast Guard's request, a

subcommittee of the Advisory Council (the "Subcommittee")

was formed to investigate the feasibility of requiring guards to

prevent underwater propeller accidents. See J.A. 46.

In November 1989, the Subcommittee recommended that the

agency take no regulatory action regarding propeller guards.

Although it recognized the hazards presented by unguarded boat

propellers, it found that

{njo simple universal design suitable for all boats and

motors in existence has been described or demonstrated to

be technologically or economically feasible. To retrofit the

3

some 10 to 15,000,000 existing boats would thus require a

vast number of guard models at prohibitive cost.

J.A. 71. See also J.A. 73 ("there are no indications that there

is a generic or universal solution currently available or

foreseeable in the future.") Thus, the Subcommittee concluded

that "[t}he U.S. Coast Guard should take no regulatory action

to require propeller guards." /d.?

The Advisory Council subsequently adopted the

Subcommittee’s recommendation that the Coast Guard not issue

regulations requiring propeller guards on all recreational boats.

J.A. 138. However, in response to a presentation by a

propeller strike victim that the search for new technology should

continue, the Advisory Council’s Chair “assured the Council

and guests that this is not a dead issue. If new pertinent

information becomes available, a subcommittee will be

reconvened." J.A. 139.

On February |, 1990, the Coast Guard adopted the Advisory

Council’s recommendation that it "take no regulatory action to

require propeller guards." J.A. 163. In a letter memorializing

its decision (the “Coast Guard Letter"), a Coast Guard official

reiterated the concern that there was no universal solution

currently available to solve the propeller guard problem:

? In its report, the Subcommittee also discussed that “{a] number of

lawsuits have been filed by victims of alleged propeller strikes to recover

damages from the operator of the striking vessel and also against the

manufacturer of the propulsion unit and/or boat." J.A. 50-51. The

Subcommittee went on to note that, if the Coast Guard were w adopt a

regulation mandating propeller guards, “[sjuch mandate would . . . establish

prima facie manufacturer liability in having failed to provide them.” J.A. 51.

It said nothing about what effect, if any, a decision no? to issue a regulation

would have on those lawsuits.

The regulatory process is very structured and stringent

regarding justification. Available propeller guard accident

data do not support imposition of a regulation requiring

propeller guards on motorboats. Regulatory action is also

limited by the many questions about whether a universally

acceptable propeller guard is available or technically

feasible in all modes of boat operation. Additionally, the

question of retrofitting millions of boats would certainly be

a major economic consideration.

Id. The Coast Guard Letter added, however, that the agency

would "continue to collect and analyze accident data for changes

and trends . . . [and] review and retain any information made

available regarding development and testing of new propeller

guarding devices ..." Jd. At no point did the Coast Guard

Letter -- or anything else issued by the Coast Guard -- indicate

that the agency intended to ban state regulation with respect to

propeller guards, or to preempt common-law claims relating to

a manufacturer’s failure to install propeller guards in its boats.

The Coast Guard’s decision not to regulate propeller guards

was not the product of any formal rulemaking proceeding and

did not result in any regulatory action. The Coast Guard Letter

describing the agency's decision not to regulate was not exposed

to public notice and comment and it was never published in the

Federal Register. Thus, there was no attempt to conform to the

notice-and-comment rulemaking requirements of the

Administrative Procedure Act. See 5 U.S.C. § 553 (1994).

To date, there is still no federal regulation with respect to

propeller guards, and their use is neither mandated nor

prohibited by federal law.

B. The Proceedings Below.

On June 6, 1993, petitioners’ daughter, Kathryn Lewis, was

thrown from a passenger boat and killed by the unguarded

5

propeller of an engine manufactured by respondent Brunswick

Corporation. Her parents sued respondent for common law

negligence, product liability, and fraudulent misrepresentation,

alleging primarily that the engine should have had a propeller

guard. The district court granted respondent’ motion for

summary judgment on the ground that petitioners’ common-law

claims are preempted by the Boat Safety Act. Petitioners’

Appendix ("P.A.") 26-32. The Eleventh Circuit affirmed,

holding that, although the Act does not expressly preempt

common-law claims, petitioners’ claims are impliedly preempted

because, if permitted to go forward, they would conflict with

the Coast Guard’s decision nof to issue a regulation requiring

propeller guards on all passenger boats. P.A. 3, 24-25.

SUMMARY OF ARGUMENT

In determining whether a state cause of action is preempted

by federal law, a court's sole task is to ascertain the intent of

Congress. This determination of Congressional intent is not

made in a vacuum; rather, it is informed by a strong

presumption against preemption that can be overcome only by

a clear manifestation of Congressional intent to the contrary.

Seen in this light, the lower court clearly erred in finding

petitioners’ common-law claims preempted by the Boat Safety

Act. First, as a threshold matter, there can be no finding of

preemption here because the Coast Guard has not issued any

regulation regarding propeller guards. Instead, after an internal

review that never reached the rulemaking stage, the agency

decided that regulatory action was not warranted at that time.

Finding preemption under this circumstances is squarely at odds

with Freightliner Corp. v. Myrick, 115 S. Ct. 1483 (1995),

where this Court held that federal regulatory inaction does not

preempt the States’ power to act.

Even assuming, however, that the Coast Guard's decision not

6

to regulate propeller guards could preempt the States’ power to

regulate, it still would not preempt petitioners’ common-law

claims. The reason is simple: the Boat Safety Act makes clear

that Congress did not intend to preempt any common-law

claims. The language of the preemption provision shows that

Congress merely intended to preempt state /egislative or

administrative safety standards that are not identical to federal

safety standards, and not to preempt common-law tort actions.

See 46 U.S.C. § 4306. The Act's savings clause, moreover,

States in sweeping terms that “compliance with standards,

regulations, or orders prescribed under this chapter does not

relieve a person from liability at common law or under State

law.” 46 U.S.C. § 4311(g). Both the plain language of this

“anti-preemption” provision and its legislative history make

plain that petitioners’ claims are expressly preserved, not

preempted.

That being so, the Eleventh Circuit erred in even considering

whether petitioners’ claims are impliedly preempted by the Act.

This Court has made clear that, where Congress has spoken

directly and clearly on the issue of preemption -- as it did in the

Boat Safety Act -- there can be no finding of implied

preemption. Because the Act contains both an express

preemption provision and an express “anti-preemption"

provision manifesting a Congressional intent nof to preempt,

any inquiry into implied conflict preemption is precluded.

In any event, there is no implied conflict preemption here

since petitioners’ claims do not conflict with the Coast Guard’s

decision not to regulate propeller guards. Implied preemption

only lies where it is impossible for a private party to comply

with both state and federal requirements or where state law

would frustrate the full purposes and objectives of Congress.

"Impossibility" is not an issue here, because federal law

imposes no requirements whatsoever regarding propeller

guards. Thus, respondent can do whatever is necessary to

comply with Georgia law -- including compensating petitioners

for their injuries -- without running afoul of federal law.

Similarly, petitioners’ claims would not "frustrate" Congress’

purposes, since a federal decision nof to regulate propeller

guards in no way conflicts with a common-law claim that a

specific engine design was defective because it lacked a

propeller guard. Moreover, a claim that a specific boat engine

is unsafe because it lacks a propeller guard is entirely consistent

with the central goal underlying the Act: improving boat safety.

Thus, there can be no holding of express or implied preemption

in this case.

ARGUMENT

THE COAST GUARD’S DECISION NOT TO

REGULATE PROPELLER GUARDS DOES NOT

PREEMPT PETITIONERS’ COMMON-LAW CLAIMS.

This case is governed by two bedrock legal principles

regarding federal preemption. First, as this Court recently

reaffirmed in Medtronic v. Lohr, 116 S. Ct. 2240, 2250 (1996),

a party arguing that federal law preempts state law bears a

heavy burden of overcoming the long-standing “presum(ption]

that Congress does not cavalierly pre-empt state-law causes of

action." This presumption against preemption is even stronger

where, as in this case, preemption would displace the historic

power of the States to protect the health and safety of their

citizens. See Rice v. Santa Fe Elevator Corp., 337 U.S. 218,

230 (1947). Moreover, where preemption of common-law

claims would leave injured individuals without any state or

federal remedy, which is the result sought by respondent, a

court may find preemption only in the most compelling

circumstances. See English v. General Electric Corp., 496

U.S. 72, 87-90 (1990); Silkwood v. Kerr-McGee Corp., 464

U.S. 238, 251 (1984).

Second, in determining whether a state cause of action is

preempted by federal law, the Court's “sole task is to ascertain

the intent of Congress." California Fed. Sav. and Loan Ass'n

v. Guerra, 479 U.S. 272 (1987) (plurality opinion). See also

Medtronic, 116 S. Ct. at 2250 ("‘[t}he purpose of Congress is

the ultimate touchstone’ in' every preemption case.") (quoting

Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)). In

Medtronic, this Court explained that “Congress’ intent, of

course, primarily is discerned from the language of the pre-

emption statute and the ‘statutory framework’ surrounding it."

116 S. Ct. at 2250-51. Medtronic added, however, that a court

must also give close consideration to the "structure and purpose

of the statute as a whole,’ .. . as revealed not only in the text,

but through the reviewing court’s reasoned understanding of the

way in which Congress intended the statute and its surrounding

regulatory scheme to affect business, consumers, and the law."

Id. at 2251 (quoting Gade v. National Solid Wastes Management

Assn., 505 U.S. 88, 98 (1992)).

Applying these standards here, only one conclusion can be

reached: there is no preemption of petitioners’ claims under the

Boat Safety Act.

I. Under Myrick, The Coast Guard’s Decision Not

To Regulate Propeller Guards Leaves The States

Free To Act As They Wish.

Respondent would have this Court believe that the core

question in this case is whether the Boat Safety Act expressly

or impliedly preempts common-law damages claims. But a key

threshold question is whether the Coast Guard has taken

sufficient regulatory action with respect to propeller guards to

even reach that question. Under Freightliner Corp. v. Myrick,

115 S. Ct. 1483 (1995), the answer is plainly "no."

Myrick considered whether a claim that a manufacturer was

negligent for failing to install antilock brakes in tractor-trailer

trucks was preempted by the National Traffic and Motor

Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381 et seq. (1982)

(the "Motor Vehicle Safety Act"), and by a federal motor

vehicle safety regulation governing airbrake systems in buses,

trucks, and trailers. 49 C.F.R. § 571.121 (S3) (1993)

("Standard 121").

As originally promulgated in 1974, Standard 121 required

that all truck manufacturers install antilock brakes. This

requirement was invalidated in Paccar, Inc. v. NHTSA, 573

F.2d 632, 640 (9th Cir.), cert. denied, 439 U.S. 862 (1978),

which held that, although the braking performance of some

trucks was improved by antilock brakes, “critical problems

began with mass production of vehicles designed to meet the

Standard." /d. at 641. Due to the unforeseen manufacturing

difficulties encountered during mass production of antilock

systems, the Ninth Circuit ordered NHTSA to suspend the

antilock requirements of Standard 121. /d. at 643. In

response, NHTSA added language to the regulation stating that

the antilock brake provisions invalidated by Paccar “are not

applicable to trucks and trailers." 49 C.F.R. § 571.121(S3).

In Myrick, the truck manufacturers argued that Standard 121

preempted common-law claims that their trucks were defective

because they lacked antilock brakes. This Court disagreed,

holding that there could be no preemption because "([t)here is no

express federal standard addressing [antilock brakes] for trucks

or trailers." 115 S. Ct. at 1487. In so holding, Myrick

explicitly rejected the truck manufacturers’ claim “that the

absence of regulation itself constitutes regulation.” /d. Mere

regulatory inaction, said the Court, carries no preemptive force

10

whatsoever, especially where “there is no evidence that [the

federal agency] decided that [the product) should be free from

all state regulation. . .." /d.

Myrick mandates reversal of the decision below. In finding

federal preemption of petitioners’ common-law claims, the

Eleventh Circuit embraced the very proposition that was

rejected in Myrick: that “the absence of regulation itself

constitutes regulation.” /d. This ruling has the perverse effect

of transforming a federal decision nof to require propeller

guards on all motor boats into an affirmative decision to ban

any state regulation requiring a propeller guard on any motor

boat, as well as any state common-law claim simply requiring

a manufacturer to pay damages for failing to include a specific

propeller guard on a specific boat. This result is contrary to

Myrick and it flies in the face of numerous prior decisions of

this Court holding that mere federal regulatory inaction, without

more, does not imply an authoritative federal determination that

the area is best left unregulated. See Puerto Rico Dep't of

Consumer Affairs v. Isla Petroleum Corp. , 485 U.S. 496, 503-

04 (1988) (federal inaction alone does not have preemptive

effect); Arkansas Elec. Co-Op v. Arkansas Pub. Serv. Comm'n,

461 U.S. 375, 384 (1983) (regulatory inaction only has

preemptive force where Congress has made clear that its

intention is “to fill a regulatory gap, not to perpetuate one.")

(footnote omitted).

In addition, here, as in Myrick, “there is no evidence that [the

federal agency] decided that [the product at issue] should be

free from all state regulation. . .." 115 S. Ct. at 1487. As

explained above, the Coast Guard's decision not to even begin

drafting a federal regulation requiring propeller guards stemmed

from its “many questions about whether a universally acceptable

propeller guard is available or technically feasible in all modes

of boat operation.” J.A. 163. The agency never even

ll

considered whether some or all state regulations (much less

some or all common-law claims) were desirable. The Coast

Guard also never considered, much less decided, whether there

some technology appropriate for use in some boats. Rather, the

agency merely found that there was no technology appropriate

for a national, across-the-board regulation applicable to all

types of boats. This determination is entirely consistent with --

and leaves the States free to adopt -- state regulations mandating

propeller guards on specific boats or on boats used for a

particular purpose. It is also, of course, entirely consistent with

a finding that respondent acted negligently under Georgia

common law by failing to install a propeller guard on the boat

engine that killed Kathryn Lewis.

The Eleventh Circuit nonetheless distinguished Myrick on the

theory that, in contrast to the Motor Vehicle Safety Act, the

Boat Safety Act gives the Coast Guard exclusive authority to

issue safety standards:

While an absence of regulation under the [Motor] Vehicle

Safety Act does not prevent states from regulating motor

vehicle safety standards, an absence of federal regulation

under the [Boat Safety Act] means that no regulation, state

or federal, is appropriate. [Myrick] is distinguishable for

that reason.

P.A. 20. Based on its view that the Boat Safety Act only

permits state regulations that are identical to federal standards,

the Eleventh Circuit held that the Coast Guard's decision not to

issue a regulation requiring propeller guards was more than just

regulatory inaction, but rather demonstrated an intention to

"mandate[ } an absence of both federal and state propeller guard

requirements." /d. (citations omitted).

This argument rests on the radical -- and wholly unsupported

12

. =r

-- notion that the Boat Safety Act essentially preempts the entire

fieid of boat safety regulation. It is well established that courts

may not infer Congressional authority to supercede the "historic

police powers of the States . . . unless that was the clear and

manifest purpose of Congress." Rice, 337 U.S. at 230.

“Federal occupation of a field of commerce may not be deemed

preemptive of state regulatory power in the absence of

persuasive reasons -- either that the nature of the regulated

subject matter permits no other conclusion or that Congress has

unmistakenly so ordained." Florida Lime & Avocado Growers

v. Paul, 373 U.S. 132, 142 (1963).

Here, there is no plausible argument that Congress has

“unmistakenly ordained” its intent to preempt the entire field of

State regulatory power with respect to boat safety. To begin

with, the Boat Safety Act’s express preemption clause contains

no language barring States from regulating in the absence of

federal action. Rather, it simply provides that “a State... .

may not establish . . . a [boat] safety standard . . . that is not

identical to a regulation prescribed under section 4302." 46

U.S.C. § 4306. This language merely limits what a State can

do in the event the Coast Guard Aas prescribed a regulation

(i.e., the State is limited to prescribing an identical standard);

it says nothing about what a State can or cannot do where -- as

here -- the Coast Guard has decided nof to take any regulatory

action. At the same time, another provision of the Boat Safety

Act limits the Coast Guard’s authority to prescribing “minimum

safety standards” (46 U.S.C. § 4302(a)(1)) -- language that this

Court has previously construed as not evidencing Congressional

intent to preempt all safety regulation in a particular field. See

Florida Lime, 373 U.S. at 147-48.

Of course, language accomplishing total preemption of the

regulatory field would have been easy to fashion had Congress

so intended. See, e.g., Shaw v. Delta Air Lines, Inc., 463 U.S.

13

85, 96-101 (1983) (field preemption where federal law

expressly preempted “any and all state laws insofar as they may

now or hereafter relate to any employee benefit pian" covered

by ERISA); Rice, 337 U.S. at 233-35 (field preemption where

federal law expressly states that "the power, jurisdiction, and

authority conferred upon [the agency] under this Act shall be

exclusive with respect to all persons securing a license

hereunder so long as said language remains in effect"). The

absence of any such language in the Boat Safety Act

demonstrates that Congress did not expressly preempt the entire

field of state regulation in the boat safety area.

Nor could there be any claim that “the nature of the regulated

subject matter" -- boat safety -- “permits no other conclusion”

than that Congress intended to bar all state regulation in the

area. Florida Lime, 373 U.S. at 142. Even the lower court

recognized that the Boat Safety Act regulates an area (safety)

that “historically has been regulated by the states through their

police powers ...." P.A. 14. This is therefore not a case

where Congressional intent to preempt state law may be

inferred from a “dominant federal interest" in the field.

Compare Hillsborough County, Fla. v. Auto Med. Labs., 47\

U.S. 707, 718 (1985) (no dominant federal interest in regulating

health and safety sufficient to support implied preemption of

entire field of state regulation), with Boyle v. United

Technologies Corp., 487 U.S. 500, 505-06 (1988) (implying

intent to preempt field from uniquely federal interest in liability

of independent contractors performing work for federal

government), and Hines v. Davidowitz, 312 U.S. 52, 62 (1941)

(implying intent to preempt field from dominance of federal

interest in foreign affairs).

Nor is this a case where the “scheme of federal regulation is

sufficiently comprehensive to make reasonable the inference that

Congress ‘left no room’ for supplementary state regulation.”

14

-

me

Hillsborough, 471 U.S. at 713 (quoting Rice, 331 U.S. at 230).

The Act itself does not require the Coast Guard to prescribe any

regulations governing boat safety; instead, it merely states that

"[t}he Secretary may prescribe regulations . . . establishing

minimum safety standards for recreational vessels . ji. 65

U.S.C. § 4302(a) (emphasis added). The fact that the agency

has issued some regulations in the area of boat safety (although

not with regard to propeller guards!) is hardly sufficient to infer

Congressional intent to preempt the entire field of boat safety.

See Hillsborough, 471 U.S. at 718 ("[wje are even more

reluctant to infer preemption from the comprehensiveness of

regulations than from the comprehensiveness of statutes").

Under the rubric of its “implied conflict preemption" analysis,

however, the lower court held that Congress must have intended

to preempt all state regulation because any other result would

undermine “the need for uniformity applicable to vessels

moving in interstate commerce.” P.A. 19 (quoting S. Rep. No.

92-248, 92d Cong., Ist Sess. (1971), reprinted in 1971

U.S.C.C.A.N. at 1341). This conclusion fails in light of the

overriding purpose of the Boat Safety Act: to stem the

“alarming” loss of life from boat accidents by requiring

compliance with minimum safety standards. See S. Rep. No.

92-248, 92d Cong., Ist Sess. (1971), reprinted in 1971

U.S.C.C.A.N. at 1334. Given this goal, it would have made

no sense for Congress to have wiped out all existing state

regulation of boat safety in one fell swoop, leaving no standards

in effect unless and until the Coast Guard saw fit to promulgate

minimum safety regulations.

* We note that it was error for the lower court to reach the question

of implied field preemption in light of Congress’ clearly expressed intention

not to preempt all state regulation in the boat safety field. As explained below

at 11.B., a finding of implied preemption is prohibited where Congress’ express

language provides a “reliable imdicium” of its intent with respect to

preemption.

15

In short, by relying on one sentence in the Boat Safety Act’s

legislative history regarding a need for uniformity in boat safety

standards, the Eleventh Circuit read the word “Safety” out of

the Boat Safety Act. In light of Congress’ overriding focus on

actually improving boat safety -- and given the especially strong

presumption against preemption of an entire field of state

regulation -- that interpretation cannot stand. Thus, the lower

court’s attempt to distinguish Myrick on the theory that the Boat

Safety Act -- unlike the Motor Vehicle Safety Act -- preempts

the entire regulatory field is unavailing.

At bottom, the Coast Guard’s decision not to regulate

propeller guards is markedly similar to the fate of antilock

brake regulation described in Myrick. In both cases, the

absence of regulation was due to a determination that the

current state of technology did not warrant a_ universal

regulatory solution to a safety problem. In Myrick, that

decision was made by the Ninth Circuit and then memorialized

in the amendment to Standard 121 eliminating the antilock brake

requirement for trucks and trailers; in this case, the decision not

to regulate was made by the agency in the first instance. But

the result in both instances was the same: an absence of any

federal regulation mandating or prohibiting the use of the

technology in question. Myrick makes clear that federal

preemption simply does not exist under these circumstances.

As a result, this Court need not reach the question of whether

federal regulations actually issued under the Boat Safety Act

would preempt state common-law claims.

16

Il. Even If The Coast Guard’s Decision Not To

Regulate Propeller Guards Preempts State

Regulation, It Does Not Expressly Or Impliedly

Preempt Petitioners’ Common-Law Claims.

A. Petitioners’ Claims Are Not

Expressly Preempted Because

Congress Expressly Preserved Them.

Even assuming that the Coast Guard’s decision not to regulate

could have preemptive force under the Boat Safety Act (which

it cannot), the Eleventh Circuit's finding that Congress impliedly

preempted petitioners’ common-law claims is in error for a

simple reason: the Act makes crystal clear that Congress did not

intend to preempt any common-law damages claims. Indeed,

the two provisions of the Boat Safety Act that set forth

Congress’ intent with respect to preemption -- the preemption

provision (46 U.S.C. § 4306) and the savings clause (46 U.S.C.

§ 4311(g)) -- reveal that common-law claims are expressly

preserved, not preempted. That being so, the lower court erred

in even considering whether -- much less finding that -- such

claims are impliedly preempted.

1. The Boat Safety Act’s Preemption

Provision Does Not Encompass

Common-Law Claims.

To begin with, the Act’s express preemption clause does not

encompass common-law claims. It provides that, subject to

certain exceptions, "a State or political subdivision of a State

may not establish, continue in effect, or enforce a law or

regulation establishing a recreational vessel or associated

equipment performance or other safety standard or imposing a

requirement for associated equipment . . . that is not identical

to a regulation prescribed under section 4302 of this title." 46

17

U.S.C. § 4306 (emphasis added). As the Texas Supreme Court

held in Moore v. Brunswick Bowling & Billiards Corp., 889

S.W.2d 246 (Tex.), cert. denied, 115 U.S. 664 (1994), there

are numerous reasons why the phrase “law or regulation" in this

section, standing alone, should not be read to include common-

law claims at all. See id. at 249-50. Even the broadest reading

of that phrase ultimately breaks down, however, in light of

other aspects of the preemption provision that make clear that

Congress never intended to preempt tort suits against boat

manufacturers.

First, the preemption provision merely prohibits a State from

imposing a nonidentical “law or regulation establishing . . . a

performance or other safety standard or imposing a requirement

for associated equipment .. .." 46 U.S.C. § 4306 (emphasis

added). “Safety standard” is a term used at various places in

the Act to refer to the administrative standards the Coast Guard

is authorized to adopt pursuant to Section 4302. See, e.g., id.

at § 4302(a)(1); § 4302(aX(2); § 4304; § 4311(f(1); §

4311(f)(2). The use of the same term to refer to the state

norms that may be displaced by a Federal “safety standard" is,

under normal rules of statutory construction, indicative that the

term is meant to have the same meaning. See Estate of Cowart

v. Nicklos Drilling Co., 50S U.S. 469, 479 (1992) (it is a “basic

canon of statutory construction that identical terms within an

Act bear the same meaning") (citing cases); Morrison-Knudsen

Const. v. Director, Office of Workers Comp. Programs, 461

U.S. 624, 633 (1983) ("a word is presumed to have the same

meaning in all subsections of the same statute"). See also

Medtronic, 116 S. Ct. at 2252 (plurality opinion) (citing other

uses of the term “requirements” throughout statute to

demonstrate that Congress merely intended to preempt

“enactments of positive law by legislative or administrative

bodies, not the application of general rules of common law by

judges and juries"). Thus, the only sensible reading of the

18

Act's preemption provision is that a “safety standard"

promulgated under the Act (or a requirement for equipment

associated with such a standard) will only preempt a state

legislative or administrative “safety standard" that is not

identical to the federal standard.

Second, if Congress intended the preemption provision to

apply to common-law claims, it would likely have chosen words

that more clearly did so - particularly since it referred

specifically to common-law liability in the Boat Safety Act's

savings clause. The term “safety standard” is hardly a clear

reference to common-law claims. See Medtronic, 116 S. Ct. at

2251 (plurality opinion) ("if Congress intended to preclude all

common-law causes of action, it chose a singularly odd word

[‘requirement’] with which to do it. The statute would have

achieved an identical result, for instance, if it had precluded any

‘remedy’ under state law relating to medical devices.").

Third, the preemption provision only applies to a safety

standard “establish[ed], continue[d] in effect, or enforce[d]" by

a “State or a political subdivision of a State." Construing an

award of damages to a tort plaintiff as “establishing, continuing

in effect, or enforcing” a boat safety standard is at odds with

this Court's oft-stated "assum[ption] ‘that the legislative purpose

is expressed oy the ordinary meaning of the words used.’"

American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)

(quoting Richards v. United States, 369 U.S. 1, 9 (1962)). The

duties relied on by tort claimants are general duties under the

common law that have evolved over hundreds of years. While

a jury award of damages would represent confirmation of a pre-

existing common-law duty -- for instance, the duty to act non-

negligently -- only an inept grammarian would describe an

award of damages in a tort suit as “establishing, continuing in

effect, or enforcing” a boat safety standard or other regulation.

On the other hand, it is common parlance to say that «

previously “established” statute or regulation “continues in

19

effect" or is “enforced.”

Fourth, it makes no sense to construe the term "State or a

political subdivision of a State" as encompassing a jury (or

judge) in a tort case. Political subdivisions of states, such as

counties and towns, often enact health and safety laws. Thus,

it was logical for Congress to include “political subdivisions” in

the coverage of Section 4306, lest there be some ambiguity as

to the breadth of the term “State.” At the same time, no one

would ordinarily describe an award of damages by a jury or

judge as being issued by a “State or political subdivision of a

State." And it is impossible to say that a federal jury or judge

is in any sense a “State or political subdivision thereof." Thus,

the Boat Safety Act's express preemption provision cannot

reasonably be read to encompass common-law claims.

2. The Boat Safety Act’s Savings

Clause Expressly Preserves

Common-Law Claims.

If any doubt remained as to the inapplicability of the Boat

Safety Act’s express preemption provision to common-law

claims, it would be dispelled by the Act’s express anti-

preemption provision -- the savings clause -- which plainly and

unambiguously preserves all common-law claims. It states in

simple and straightforward terms: “Compliance with this

chapter or standards, regulations, or orders prescribed under

this chapter does not relieve a person from liability at common

law or under State law." 46 U.S.C. § 4311(g).

On its face, the savings provision is sweeping and

unambiguous. “Compliance with standards, regulations, or

orders prescribed under this chapter" is a phrase that does not

admit of qualification. It cannot be read to mean only

compliance with certain federal safety standards, or to except

from its scope safety standards that deal with the particular

20

question of design or performance at issue in a given common-

law action. Similarly, the phrase “does not relieve a person

from liability at common law or under State law" does not on

its face admit of qualification. “[L]iability at common law or

under State law" is all-inclusive. That phrase cannot fairly be

read to mean that the Boat Safety Act provides any basis for

exempting any defendant from any common-law liability. See

United States v. James, 478 U.S. 597, 604 (1986) (the federal

Statute “outlines immunity in sweeping terms: ‘No liability of

any kind shall attach to or rest upon the United States for any

damage from or by floods or flood waters at any place.’ It is

difficult to imagine broader language.") (emphasis in original).

Respondent nonetheless argues that the savings clause was

merely intended to show “Congress’ intent not to occupy the

entire field of boat safety, so that common-law claims could

continue to be brought in areas not covered by a federal safety

standard." See Brief for Respondent in Opposition to Petition

for Writ of Certiorari at 13. This argument fails for two

reasons. First, as explained above, other provisions of the Boat

Safety Act make crystal clear that Congress did not intend to

preempt the field hy prohibiting States from regulating in the

absence of any federal safety standard. That being the case,

there would have been no reason for Congress to carve out a

ye exception from field preemption for common-law

claims.

Second, respondent’s argument conflicts with the language of

the savings Clause itself, which broadly states that "[c]ompliance

with . . . standards, regulations, or orders prescribed under this

chapter does not relieve a person from liability at common law

or under State law." 46 U.S.C. § 4311(g). Under respondent's

theory, this provision is merely designed to show that common-

law damages claims survive field preemption in cases where the

Coast Guard has not taken any regulatory action. But the

21

savings clause is worded much more broadly, and specifically

applies in cases where the agency Aas issued a “standard[ },

regulation{ ], or order[ ]." In fact, it specifically provides that

common-law claims may be brought despite a manufacturer's

compliance with federal standards. Respondent's contrary

interpretation simply makes no sense in light of the words

chosen by Congress.

The Boat Safety Act's legislative history confirms that

Congress enacted the savings clause to make crystal clear that

common-law claims are not preempted under any

circumstances. According to the Senate Report, the savings

clause was

intended to clarify that compliance with the Act or

standards, regulations, or orders promulgated thereunder,

does not relieve any person from liability at common law

or under State law. The purpose of the section is to assure

that in a product liability suit mere compliance with the

minimum standards promulgated under the Act will not be

a complete defense to liability. Of course, depending on

the rules of evidence of the particular judicial forum, such

compliance may or may not be admissible for its

evidentiary value.

1971 U.S.C.C.A.N. at 1352 (emphasis added). This

explanation hammers home what the language of the savings

clause already reveals: that Congress did not intend to immunize

boat manufacturers from any “product liability suits" when it

passed the Boat Safety Act. To the contrary, Congress plainly

intended to permit such suits to go forward even in cases where

a manufacturer could demonstrate compliance with a minimum

federal standard.

In short, the Boat Safety Act expressly and unequivocally

preserves all common-law claims. Some courts have

22

nonetheless rejected this result on the theory that Congress

could not logically have intended to permit common-law claims

to proceed, despite their “regulatory effect,” when state

regulations addressing the same matters would be preempted.

See, e.g., Carstensen v. Brunswick Corp., 49 F.2d 430, 432

(8th Cir. 1995), cert. denied, 116 S. Ct. 182 (1995); Mowery

v. Mercury Marine, 773 F. Supp. 1012, 1016 (N.D. Ohio

1991). Congress, however, has repeatedly preserved common-

law claims, despite their arguably regulatory effect, while

preempting direct state regulation -- and this Court has

repeatedly recognized the reasonableness of this approach. For

example, in Goodyear Atomic Corp. v. Miller, 486 U.S. 174

(1988), this Court held:

The effects of direct regulation on the operation of federal

projects are significantly more intrusive than the incidental

regulatory effects of such an additional award provision.

Appellant may choose to disregard Ohio safety regulations

and simply pay an additional workers’ compensation award

if an employee’s injury is caused by a safety violation. We

believe Congress may reasonably determine that incidental

regulatory pressure is acceptable, whereas direct regulatory

authority is not. Cf. Silkwood v. Kerr McGee Corp., 464

U.S. at 256 (Congress was willing to accept regulatory

consequences of application of state tort law to radiation

hazards even though direct state regulation of safety aspects

of nuclear energy was pre-empted).

Id. at 185-86 (footnote omitted). See also Cipollone, 505 U.S.

at 518 ("there is no general, inherent conflict between federal

pre-emption of state warning requirements and the continued

vitality of state common-law [damages] actions.")

This approach, moreover, makes good sense. As respondent

well knows, and Congress certainly understood when it passed

23

the Boat Safety Act, regulatory agencies are notoriously subject

to capture by those they are intended to regulate and, even in

the best circumstances, move laboriously and cautiously. Given

the purpose of the Boat Safety Act, it was unquestionably

reasonable for Congress to preempt state legislative and

administrative standards that are different than federal

regulations, but continue to allow the common-law tort system

to play its traditional role of prompting the federal government

and boat manufacturers to set higher standards for safety

features. That is precisely the approach reflected in the Act,

which explicitly preserves all common-law claims.

B. The Question Of Implied Preemption

Cannot Be Reached Because

Congress Unambiguously Preserved

Common-Law Claims.

Despite Congress’ clear language expressly preserving

common-law claims, the Eleventh Circuit went on to find that

petitioners’ claims are impliedly preempted by the Coast

Guard's decision not to require propeller guards on all

passenger boats. See P.A. 24-25. This approach violates this

Court's teaching in Cipollone that, where Congress has spoken

directly and clearly on the preemption issue at stake -- as it did

in the Boat Safety Act -- a court is prohibited from considering

any doctrine of implied preemption. The seven-member

majority stated:

When Congress has considered the issue of pre-emption

and has included in the enacted legislation a provision

explicitly addressing that issue, and when that provision

provides a ‘reliable indicium of congressional intent with

respect to state authority,’ there is no need to infer

congressional intent to preempt state laws from the

substantive provisions of the legislation.

24

505 U.S. at 517 (quotations deleted). This approach, the Court

said “is a variant of the familiar principle of expressio unius est

exclusio alterius: Congress’ enactment of a provision defining

the pre-emptive reach of a statute implies that matters beyond

that reach are not preempted." /d.

In Myrick, this Court again affirmed this principle, but

clarified that an express preemption clause, standing alone, does

not automatically preclude implied preemption; it only does so

when it provides a “reliable indicium of congressional intent"

with respect to preemption. The Court explained:

The fact that an express definition of the pre-emptive reach

of a statute “implies” -- i.e. supports a reasonable inference

-- that Congress did not intend to pre-empt other matters

does not mean that the express clause entirely forecloses

any possibility of implied pre-emption . . . At best,

Cipolione supports an inference that an express pre-emption

clause forecloses implied pre-emption; it does not establish

a rule.

115 S. Ct. at 1488.

As if these teachings were not clear enough, Medtronic

reiterated that there can be no resort to implied preemption in

cases wheve -- as here -- Congress has expressly spoken on the

issue of preemption:

As in Cipollone, we are presented with the task of

interpreting a statutory provision that expressly pre-empts

state law. While the pre-emptive language of [the statute]

means that we need not go beyond that language to

determine whether Congress intended the MDA to pre-empt

at least some state law, we must nonetheless identify the

domain expressly pre-empted by that language.

25

116 S. Ct. 2250 (citations and quotations omitted). While the

members of the Court disagreed vehemently on the meaning of

Congress’ words, they all agreed that, since Congress had

expressly stated its intent with respect to preemption, only

express preemption analysis could +e pursued.

Given these teachings, and Congress’ unequivocal

preservation of all common-law claims in the Boat Safety Act,

the result is clear: implied preemption arguments cannot even

be considered in this case. The Eleventh Circuit's holding that

the Act impliedly preempts petitioners’ claims was plain error

on this ground alone, and should be reversed.

Respondent will undoubtedly defend the lower court's

decision to reach implied preemption on the ground that the

Boat Safety Act's express preemption provision is not a

“reliable indicium of Congressional intent.” Cipollone, 505

U.S. at 517. Even assuming that the Act's express preemption

provision, standing alone, does not meet the Cipollone test,

Section 4306 does nor stand alone. Rather, as explained above,

the Act's savings clause provides a reliable -- indeed, a

conclusive -- indicum of Congress’ intent to preserve all

common-law claims. Accordingly, there is no basis for

considering any implied preemption arguments here. The

express preemption inquiry should be the beginning and the end

of the analysis.

C. Even Assuming That Implied

Preemption Analysis Can Be

Reached Here, Petitioners’ Claims

Are Not Preempted Because They Do

Not Conflict With Federal Law.

Even assuming, however, that implied preemption analysis is

proper in this case, there is no preemption here since

petitioners’ claims do not conflict with the Boat Safety Act or

26

with the Coast Guard's decision not to regulate propeller

guards.‘ As Myrick explained, implied conflict preemption only

arises when there is an “actual conflict” between federal and

State law -- either because it would be “impossible for a private

party to comply” with both or because the state law “stands as

an obstacle to the accomplishment and execution of the full

purposes of Congress." 115 S. Ct. at 1487.

Regarding the former, as in Myrick, “it is not impossible for

{the manufacturer} to comply with both federal and state law

because there is simply no federal standard for a private party

to comply with." Id. at 1488. Once again, the bottom line in

installing propeller guards on its boat engines. (Of course, jury

verdicts finding it liable in this and other cases would not

compel it to do any such thing, since respondent could always

opt to compensate the plaintiffs for their injuries rather than

avoid such suits altogether by installing propeller guards.) In

any event, given the absence of any federal regulation regarding

propeller guards, there can be no claim of impossibility here.

The Eleventh Circuit's contrary conclusion is once again

* As a threshold matter, the Eleventh Circuit compounded its initial

error (considering implied preemption in the first place) by refusing to apply

any presumption against implied conflict preemption. See P.A. 15. This

holding is flatly wrong. To cite but one of myriad potential examples, in

Hillsborough, 47\ U.S. at 715, this Court rejected an implied preemption

argument relying heavily on the presumption against preemption. This makes

sense since, if the presumption against preemption is to be employed when

interpreting Congress’ express language, it follows logically that a court should

be even more cautious in finding preemptive intent by implication from far less

reliable indicators.

27

rooted in its erroneous “field preemption” theory. The lower

court reasoned as follows: (1) the Boat Safety Act bars States

from enacting amy regulations except ones identical to federal

standards; (2) the Coast Guard considered, but declined to

issue, a federal standard requiring propeller guards on al! boats;

(3) given that the Act preempts the field of state regulation

absent federal action, the Coast Guard must have intended for

its regulatory imaction to bar any state regulation governing

propeller guards; and, therefore (4) it would be “impossible”

for respondent to comply with both state and federal law. See

generally P.A. 18-21. See also P.A. 24 ("because Congress

has made the Coast Guard the exclusive authority in the area of

boat and equipment safety standards, its position rejecting a

propeller guard requirement takes on the character of a ruling

that no such requirement may be imposed.”").

This theory fails for the simple reason that Congress

manifestly did not intend to preempt the field of boat safety

when it passed the Act into law. See supra at 12-16. That

being so, the Coast Guard had no basis for assuming or

intending that its decision not to regulate propeller guards would

affect the States’ ability to regulate propeller guards.

Moreover, as explained above, there is no evidence that the

Coast Guard thought that propeller guards should be banned. To

the contrary, all the agency decided was that, due to the lack of

“universally acceptable" propeller guard technology suitable for

all engines, it was premature to issue a nationwide standard

requiring propeller guards on every passenger boat in the

country. See J.A. 163. The absence of a universally

appropriate propeller guard does not mean, however, that no

propeller guard should be required on any boat. In any event,

there is no hint in the record that the Coast Guard ever decided

to immunize all boat manufacturers from liability for failing to

install propeller guards on specific boats. Thus, there can be no

claim that it would be impossible for respondent to comply with

28

both the Coast Guard’s regulatory scheme and a jury verdict

finding it liable in this case.

Nor can there be any serious claim that permitting lawsuits

like petitioners would “stand{ }] as an obstacle to the

accomplishment and execution of the full purposes of

Congress." Myrick, 115 S. Ct. at 1487. To again use the

words of Myrick, “[a] finding of liability against petitioners

would undermine no federal objectives or purposes with respect

to [propeller guards], since none exist." /d. at 1488. Here,

too, the absence of any federal standard regarding propeller

guards is the end of the matter.

The Eleventh Circuit nonetheless held that petitioners’ claims

are “preempted by implication” because they would “conflict

with [the Boat Safety Act's] grant of exclusive regulatory

authority to the Coast Guard." J.A. 163. This “conflict,”

however, is based on the lower court’s misunderstanding of the

Act: as explained above, Congress never granted “exclusive

regulatory authority” to the Coast Guard. Nor would permitting

purpose of the [Act]." Myrick, 115 S. Ct. at 1138. In reality,

the Act has no such stated goal. And, although the legislative

history references uniformity as one of Congress’ goals, the

Senate Report reveals that the main purpose behind the Boat

Safety Act was -- as the name implies -- boat safety. See 1971

U.S.C.C.A.N. at 1333-35. A jury verdict in petitioners’ favor

would be perfectly consistent with -- and substantially further --

that overriding goal. Moreover, even if there was a federal

regulation in place preempting state regulation of propeller

guards, state common-law claims still would not be preempted.

In any event, as the Texas Supreme Court held in Moore, "the

savings clause reflects that Congress was willing to tolerate

some tension between the concept that uniform safety

regulations should be established at the federal level and the

29

concept that a state may nevertheless award tort damages for

unsafe products. Cf. Silkwood, 464 U.S. at 256." 889 S.W.2d

at 252. Thus, any claim that an alleged interest in regulatory

uniformity is sufficient to trigger implied preemption of

common-law claims should be rejected.

In sum, given the strong presumption against federal

preemption of common-law claims, Congress’ explicit

preservation of common-law claims in the Boat Safety Act, and

the Coast Guard's decision not to promulgate any federal

regulation regarding propeller guards, the decision below cannot

stand. Petitioners’ common-law claims are not preempted.

CONCLUSION

For these reasons, the decision below should be reversed.

Respectfully submitted,

Leslie A. Brueckner

(Counsel of Record)

Arthur H. Bryant

Trial Lawyers for Public Justice, P.C.

1717 Massachusetts Ave., N.W.

Suite 800

Washington, D.C. 20036

(202) 797-8600

Counsel for Amicus Curiae

Trial Lawyers for Public Justice, P.C.

December 29, 1997