Amicus Curiae Brief — Lewis v. Brunswick Corp.

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VICKY LEWIS, et al.,

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. BRUNSWICK CORP. ,

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“ BRIEF OF AMICUS CURIAE

(Counsel of Record)

DAVID M. YOUNG

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

ree

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the court of appeals correctly held that the

Federal Boat Safety Act of 1971 preempts a state common

law requirement that recreational boats be equipped with

propeller guards, where the United States Coast Guard, after

extensive administrative proceedings, determined that such

a requirement would be contrary to the interests of boat

safety.

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............005.

INTEREST OF THE AMICUS CURIAE .........

STATEMENT OF THECASE ...............

I. CONGRESS INTENDED TO CREATE

UNIFORM NATIONAL STANDARDS FOR

SAFE BOAT DESIGN AND MANUFACTURE .

Il. CONGRESS ENACTED THE FBSA TO

REGULATE A FIELD IN WHICH THERE IS A

DOMINANT FEDERAL INTEREST ........

Ill. IT WAS NOT NECESSARY FOR THE COAST

GUARD TO FOLLOW THE ADMINISTRATIVE

PROCEDURES ACT IN ORDER FOR ITS

MSCISION NOT TO REGULATE TO HAVE

iv

IV. ACOMMON LAW IMPOSITION OF LIABILITY

WOULD BE NO LESS DAMAGING TO

FEDERAL UNIFORMITY THAN A STATE

STATUTORY OR ADMINISTRATIVE

REQUIREMENT ........---+-eeeeeees

CONCLUSION 0. ccc ccc cc cere ee eccnns

TABLE OF AUTHORITIES

Page

Cases:

Arkansas Elec. Cooperative Corp. v. Arkansas Pub. Serv.

Comm'n, 461 U.S. 375 (1983) ............ 17

Atkinson v. Gates, McDonald & Co..,

838 F.2d 808 (Sth Cir. 1988) .............. 15

Barnard v. Zapata Haynie Corp..,

oe ee 15

Bethlehem Steel Co. v. New York State Labor Relations Bd. ,

PEED ok oe d4anie bie 0% veic'w 11

Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,

CED, oc sw a 'biel ts FMS 0 010 dd 11

Boyle v. United Technologies Corp. ,

hws obs 0 6 6.6.0 61% alee e's 11

Cipollone v. Liggett Group, Inc.,

OL ee 5,21,22

East River S.S. Corp. v. Transamerica Delavall, Inc.,

ny 1 3 6 « didi’ é 4 é 6 6% bleed 10

English v. General Electric Co..,

ah oo wis’! § 0.60 oe bio’ « 7

Exxon Corp. v. Chick Kam Choo,

817 F.2d 307 (Sth Cir. 1987), rev'd on other grounds,

CI 15,16

Foremost Ins. Co. v. Richardson,

CC 10

Freightliner Corp. v. Myrick,

514 U.S. 280, 115 S.Ct. 1483 (1995) ..... 19,20

Garrett v. Moore-McCormack Co., Inc.,

ee oe ake. one's owe bloeie s 10

Hetzel v. Bethlehem Steel Corp.,

50 F.3d 360 (Sth Cir. 1995)............... 16

vi

Hines v. Davidowitz,

ES rt se sare 6 6 6 ie eee 11

Ingersoll-Rand Co. v. McClendon,

Ge ES cawiccccdadececcect 7

Maryland Dep’t of Natural Resources v. Kellum,

51 F.3d 1220 (4th Cir. 1995) .............. 16

Medtronic, Inc. v. Lohr,

__US. __, 116 S.Ct. 2240 (1996) ........ 22

Miles v. Apex Marine Corp..,

Ges EE We eebcecc cic cscce. 10,11

Morales v. Trans World Airlines, Inc. ,

SP Us EE. Se dewerticcccesecee 8

Napier v. Atlantic Coast Line R.R.. Co.,

Bee ED. GE ee reece ccccccess 11

New York Times Co. v. Sullivan,

SP Gs EP Swe ccc cesteseceves 22

Norfolk & Western R. Co. v. Train Dispatchers,

GP en ED veces cecccasecces's 23

Ray v. Atlantic Richfield Co. ,

2!) § er ere 17,20

Romero v. Int’! Terminal Operating Co..,

DE EE ke Weadecceccceseses 10

GE. Diceccccscsicecvess 7

Shaw v. Delta Air Lines, Inc.,

GED Voce icctdaaedesestces 8

Sisson v. Ruby,

oS ee eee 10

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

De es SPE Shh Cena ee bac cc cess 10

Yamaha Motor Corp., U.S.A. v. Calhoun,

__ US. __, 116 S.Ct. 619 (1996) ......... 16

vii

Constitution and Statutes:

se ccaceevcebast cc cetcs passim

EE os oo os che wae ws bu's bod 4 8

ES EE an Ste, on ala one 6h oe bases. 19

fe © ee 6

Legislative Materials:

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

reprinted in 1971 U.S.C.C.A.N. 1333 .. 9,11,12,13

Other Authorities:

Schwartz, Deterrence & Punishment in the Common Law of

Punitive Damages: A Comment, 56 S. CAL. L. REV.

DEC Ch oh et eeu ewe. ts bee ecceees 21

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

No. 97-288

VICKY LEWIS, et a/.,

Petitioners,

v.

BRUNSWICK CORP.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the

Eleventh Circuit

BRIEF OF AMICUS CURIAE

WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICUS CURIAE

The Washington Legal Foundation (WLF) is a non-

proms public intevest low and policy center With supporters

nationwide.’ WLF regularly appears before federal and

' Pursuant to Supreme Court Rule 37.6, WLF hereby states

that no counsel for a party in this case authored this brief in whole

(continued...)

2

state courts to promote economic liberty, free enterprise

principles, and a limited and accountable government. To

that end, WLF has appeared before this and other federal

and state courts in cases involving federal preemption issues,

arguing that the American economy suffers when multiple

layers of government seek simultaneously to regulate the

same business activity. See, e.g., Medtronic, Inc. v. Lohr,

__US. __, 116 S.Ct. 2240 (1996). Also, WLF’s Legal

Studies Division has published papers on federal preemption

and related topics. See, e.g., Paul LeRoy Crist, Federal

Preemption of State Tort Claims After Medtronic, Inc. v.

Lohr (WLF WorKING PAPER January 1997). WLF thus

brings a broader perspective to the issues in this case than

that presented by the parties in this action.

WLF is filing this brief with the consent of both parties.

WLF has lodged consent letters with the Clerk of the Court.

STATEMENT OF THE CASE

In the interest of judicial economy, WLF hereby

incorporates by reference the Statement of the Case in

respondent’s brief.

In brief, this case arises from a tragic accident in which

petitioners’ daughter “fell or was thrown” from a boat in

which she was riding on Strom Thurmond Lake in Georgia.

Pet. App. A3. The decedent died from injuries resulting

from being struck in the head and body by the propeller of

'(...continued)

or in part, and that no person or entity, other than WLF and its

counsel, contributed monetarily to the preparation and submission

of this brief.

3

the boat’s engine. Jd. at A3-A4. The engine was designed

and manufactured by respondent; it was not equipped with

a propeller guard. /d.

Petitioners filed suit against respondent in Georgia state

court, alleging that the lack of a propeller guard made the

engine a defective product. Pet. App. 4A. Respondent

removed the case to federal court, and the federal district

court granted respondent's motion for summary judgment on

petitioners’ state tort law claims, holding that the claims

were preempted by the Federal Boat Safety Act (“FBSA”),

46 U.S.C. §§ 4301, et seq. Id. The United States Court of

Appeals for the Eleventh Circuit affirmed, holding that

while petitioners’ common law claims were not expressly

preempted by § 4306 of the FBSA because of the Act’s

“savings clause” in § 4311(g), those claims were impliedly

preempted because “claims based on the failure to install a

product that the Coast Guard has decided should not be

required would conflict with the regulatory uniformity

purpose of the [FBSA].” Pet. App. A22. The Eleventh

Circuit found that, after extensive public investigation, the

Coast Guard concluded that propeller guards should not be

required on recreational boats; in fact, such a requirement

might create additional hazards to boaters.

SUMMARY OF ARGUMENT

This case presents an important question concerning

Congress’ ability to promote uniform rules for the design

and manufacture of products, in this case, boats, free from

widely disparate state common law requirements. The issue

has special significance in this case, which concerns

congressional action in an area in which the federal interest

dominates. This Court has long recognized the dominant

4

federal interest in matters of admiralty and maritime law,

and the Congress specifically invoked the admiralty and

maritime jurisdiction when enacting the FBSA, citing

traditional concerns for the need for uniform rules of

conduct in order to promote commerce.

In any field, however, the touchstone for analysis of

preemption must be Congress’ intent, and in enacting the

FBSA, Congress intended to create uniform national

standards for safe boat design and manufacture. Thus, the

FBSA broadly preempts any state “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 U.S.C. § 4306.

A propeller guard is associated equipment, and the

Coast Guard has most decidedly not promulgated any

regulation identical to the common law liability petitioners

would have the state court impose on respondent. To the

contrary, the Coast Guard has declined to require propeller

guards, in part based on the possibility that such a

requirement could actually increase dangers to boaters. To

the extent the FBSA contemplates a continued role for states

in boat safety, that role is state participation and

coordination in boat safety programs, the imposition of

requirements for carrying or using marine safety articles to

meet uniquely hazardous local conditions, and regulation

concerning safe boat operation and use. Congress did not

intend to allow fifty different states using lay juries to

establish differing standards for boat design and

manufacture.

5

Further, it is no obstacle to preemption that the Coast

Guard’s decision not to require propeller guards was not

made in the context of an Administrative Procedures Act

(“APA”) rulemaking. The FBSA preempts any state law or

requirement which is not identical to a Coast Guard

regulation under the FBSA, and if the Coast Guard has not

imposed a regulation, the state requirement cannot be

identical. It simply does not matter that the Coast Guard did

not perform an APA rulemaking in order to refrain from

regulating. Moreover, the APA was intended to allow

potentially burdened parties to have input into the

development of regulations which could be imposed upon

them, and to ensure that the relevant agency fully considers

the impact of proposed regulation before imposing

government regulation on an activity. An agency is not

required to follow the APA simply in order to justify the

continued operation of the free market, i.e., in order to

decide to refrain from regulation.

This Court should likewise reject petitioners’ contention

that, for preemption purposes, state common law claims

operate differently than state statutory or administrative

enactments and therefore should not be preempted. This

Court’s plurality opinion in Cipollone v. Liggett Group,

Inc., 505 U.S. 504 (1992) rejects this contention. A

common law damages claim can have every bit as much of

an effect on altering design and manufacturing standards as

would a state statute or regulation. This is particularly true

considering that a common law action could result in a

punitive damage award against a manufacturer, particularly

if a manufacturer failed to alter its conduct after a prior

judgment against it. Petitioners’ economic analysis of state

common law liability also fails to consider the impact of

having numerous differing standards of liability across fifty

6

states. Thus, state common law liability presents a potential

obstacle to federal uniformity just as much as would state

statutes or regulations.

ARGUMENT

I. CONGRESS INTENDED TO CREATE UNIFORM

NATIONAL STANDARDS FOR SAFE BOAT

DESIGN AND MANUFACTURE

Petitioners and their supporting amici argue repeatedly

that a finding of preemption in this case is inappropriate due

to the “strong” presumption against preemption. See, é.g.,

Brf. of Pet. at 16, 23; Am. Brf. of Association of Trial

Lawyers of America (“ATLA”) at 8. Petitioners and their

amici have misconstrued the nature of the “presumption”

that exists in preemption cases. Any such preemption is

merely a tool to be used in deciding the ultimate issue in this

case: did Congress intend to preempt product liability

actions of the type brought by petitioners? Presumptions

regarding congressional intent are relied upon only in the

absence of more direct evidence of that intent. As discussed

infra, the language of the FBSA as well as other traditional

indicia of congressional intent make clear that Congress

fully intended to preempt this type of action. Accordingly,

the “presumption against preemption” cited by petitioners is

irrelevant in this case.

State governments unquestionably have an important

role to play in our federal system of government.

Nevertheless, there can be no dispute that, ultimately --

under the Supremacy Clause, U.S. Const., art VI, cl. 2 -- it

is for the national government to decide how large a role the

states are to play in any given issue. The national

>

government is free to go so far as to preempt all state

jurisdiction over an issue, so long as its actions are

consistent with the Tenth Amendment.

Whether the national government has preempted all

state jurisdiction over a given issue “fundamentally is a

question of congressional intent.” English v. General

Electric Co., 496 U.S. 72, 78-79 (1990); Schneidewind v.

ANR Pipeline Co. , 485 U.S. 293, 299 (1988). In discerning

congressional intent, the starting point is the language of the

Statute at issue; “when Congress has made its intent known

through explicit statutory language, the courts’ task is an

easy one.” English, 496 U.S. at 79. Courts may also look

to the “structure and purpose of the statute” in discerning

congressional intent. Ingersoll-Rand Co. v. McClendon,

498 U.S. 132, 138 (1990).

The broad preemptive language of the FBSA indicates

that Congress intended to preempt some forms of state

regulation of boat design and manufacture. The FBSA

provides:

Unless permitted by the Secretary under section

4305 of this title, a State or a 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 (except

insofar as the State or political subdivision may, in

the absence of the Secretary’s disapproval, regulate

the carrying or use of marine safety articles to meet

uniquely hazardous conditions or circumstances

within the State) that is not identical to a regulation

prescribed under section 4302 of this title.

46 U.S.C. § 4306.

Petitioners contend, nonetheless, that in light of the

“presumption against preemption,” the FBSA’s preemption

provision should be given the narrowest construction that

could plausibly be squared with the statutory language.

Thus, petitioners go so far as to suggest that the preemption

provision should not be interpreted as applying to state

regulation in the form of common law tort actions because

the statutory language refers to “law or regulation,” “safety

standard,” or “requirement for associated equipment,” but

does not explicitly state “common law”. This argument

runs counter to normal canons of statutory interpretation.

Words in a statute are to be given their ordinary meaning.

If Congress intended, as demonstrated by its statutory

language, that a preemption provision is to be broad in

scope, it is not for the courts to override that intent by resort

to a contrary “presumption.” See Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 383 (1992) (preempting state

fare-advertising regulations); Shaw v. Delta Air Lines, Inc. ,

463 U.S. 85, 96-97 (1983) (preempting state laws relating

to any employee benefit plan).

To the extent the FBSA saves state law claims,’ the

statute is best construed as saving state law claims based on

violation of those state law requirements which the FBSA

specifically contemplated would remain viable, such as those

2 See 46 U.S.C. § 4311(g) (“[c]ompliance with this chapter or

standards, requirements, or orders prescribed under this chapter does not

relieve a person from liability at common law or under State law.”).

a | —

9

concerning the carrying or use of marine safety articles, or

those directed at safe boat operation and use. See S. Rep.

No. 248, 92d Cong., Ist Sess. (1971), reprinted in 1971

U.S.C.C.A.N. 1331 (discussing Section 10). In the

alternative, the FBSA could be construed as the Eleventh

Circuit construed it in this case, saving only state law claims

based on the negligent or defective design or installation of

products required by the Coast Guard or provided

voluntarily by manufacturers. To read the savings clause as

petitioners suggest would render the FBSA’s preemption

clause a nullity.

In sum, there is no reason for this Court to resort to

“presumptions” in interpreting the FBSA. If one gives the

words of the FBSA their ordinary meaning, Congress's

intent to preempt petitioners’ state law cause of action is

clear.

Il. CONGRESS ENACTED THE FBSA TO

REGULATE A FIELD IN WHICH THERE IS A

DOMINANT FEDERAL INTEREST

Petitioners’ reliance on a “strong presumption against

preemption” is even more inappropriate in a case such as

this where the legislative subject matter implicates a

dominating federal interest. Thus, to the extent this Court

needs to look to the structure and purpose of the FBSA to

determine its preemptive scope, federal preemption applies

with special force in this case because Congress enacted the

FBSA to further the preeminent federal interest in providing

uniform rules of conduct in the field of admiralty and

maritime law.

10

Petitioners and their amici significantly understate the

strong federal interest in this field, which has traditionally

been a matter of federal law. See, e.g., Am. Brf. of Trial

Lawyers for Public Justice, P.C. (“TLPJ”) at 14 (suggesting

FBSA regulates “safety,” a field traditionally regulated by

state and local authorities). In this respect, it is clear that

Congress in enacting the FBSA was not legislating

concerning the matter of safety generally, or even product

design and manufacture generally, but rather in the specific

field of boat safety, a matter well within Congress's

constitutional grant of authority in the field of admiralty law.

Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 361

(1959) (constitutional grant of admiralty and maritime

jurisdiction empowered Congress to revise and supplement

maritime law within the limits of the Constitution); see also

Sisson v. Ruby, 497 U.S. 358, 367 (1990) (federal admiralty

jurisdiction extends to tort claims emanating from fire

caused by pleasure boat docked at marina); East River S.S.

Corp. v. Transamerica Delaval, Inc. , 476 U.S. 858 (1986)

(federal admiralty jurisdiction applies to products liability

claims concerning vessel component which causes injury to

things other than the product itself); Foremost Ins. Co. v.

Richardson, 457 U.S. 668, 677 (1982) (federal admiralty

jurisdiction extends to collision of two pleasure boats).

Even judge-made general maritime law is supreme to state

statutory and decisional law within this field. Wilburn Boat

Co. v. Fireman's Fund Ins. Co. , 348 U.S. 310, 314 (1955);

Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239

(1942).°

* It should also be noted that where there is a conflict between

federal statutory law and judicially-created general maritime law, ie.,

“horizontal preemption”, statutory law prevails. Miles v. Apex Marine

(continued...)

Thus, this is a case where congressional intent to

preempt state law may be inferred from a “dominant federal

interest” in the field. See, e.g., Bonito Boats, Inc. v.

Thunder Craft Boats, Inc., 489 U.S. 141, 152 (1989) (state

intellectual property action preempted despite absence of

federal regulation in field because of dominating federal

interest evidenced by congressional enactment of patent

laws); Boyle v. United Technologies Corp., 487 U.S. 500,

505-06 (1988) (implying intent to preempt field based on

uniquely federal interest in liability of independent

contractors performing work for federal government);

Bethlehem Steel Co. v. New York State Labor Relations Bd. ,

330 U.S. 767, 774-775 (1947) (failure of NLRB to entertain

certain actions constituted determination by Board that

certain units were not appropriate for bargaining purposes);

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

intent to preempt field concerning obligations on aliens from

dominating federal interest in foreign affairs); Napier v.

Atlantic Coast Line R.R.. Co., 272 U.S. 605, 613 (1926)

(preempting state positive law because federal statute

occupied field, although agency had not yet exercised its

authority to full extent conferred).

It cannot be seriously questioned that Congress intended

to invoke its power to legislative in this field, and by so

doing to promote uniform rules for safety in boat design.

Senate Report at 17 (“[g]eneral jurisdictional applicability is

to vessels within the historic federal maritime jurisdiction .

*(...continued)

Corp., 498 U.S. 19, 24 (1990). Thus, im a case such as this where

grant of admiralty and maritime jurisdiction, it presents the strongest case

for preemption of state law.

12

.”). In explaining the federal preemption provision of the

FBSA, the Senate Report explained:

This section provides for federal preemption in

the issuance of boat and equipment safety

standards. This conforms to the long history of

preemption in maritime safety matters and is

founded on the need for uniformity applicable to

vessels moving in interstate commerce. In this case

it also assures that manufacture for the domestic

trade will not involve compliance with widely

varying local requirements.

Id. at 20.

It is correct, as petitioners and their amici contend, that

Congress intended a coordinated approach between the

federal and state governments. However, the Senate Report

on the FBSA makes clear that state participation in boat

safety efforts was to be accomplished, not through fifty

separate regulatory schemes, but rather through federal

grant-in-aid incentive payments to states with state boating

safety programs. Senate Report at Section 2 (“[t}his [policy

and purpose] is to be done by encouraging and assisting

participation by the States, the boating industry and the

boating public to develop more comprehensive safety

programs, [and] by authorizing the establishment of national

construction and performance standards . . . .”) (emphasis

added).

The Senate Report’s explanation of Section 10 of the

FBSA, concerning preemption, further explains that state

law was not to be completely displaced with respect to

“serious hazards which are unique to a particular locale and

13

which would justify ~ariances with respect to carrying or

using marine safety . :icles . . .” or with respect to“ .. .

safe boat operation and use . . . .”). Such concerns do not

suggest that states may continue to impose boat safety design

and manufacture requirements in the face of a Coast Guard

determination that a particular requirement would be

unwise. To the contrary, the FBSA specifically precludes

such “law or regulation,” “safety standard,” or

“requirement for associated equipment,” which is not

identical to a Coast Guard requirement. 46 U.S.C. § 4306.

Moreover, it is not a complete statement of the

congressional purpose to suggest that the FBSA represents

an effort to promote safety to the exclusion of all other

congressional interests. As with any legislation, be it boat

safety, «vil rights, or medical device regulation, the FBSA

represents an attempt by Congress to balance safety against

other competing interests, in this case, consumer choice, the

need for uniformity of rules of conduct, and the promotion

of maritime and interstate commerce. See Senate Report at

14 (“[t}he need for uniformity in standards if interstate

commerce is not to be unduly impeded supports the

establishment of uniform construction and equipment

standards at the Federal level.”); id. at Section 5 (“ . . . the

requirement . . . that standards be ‘ressonable’, necessarily

also involves a consideration of technical feasibility and

cost. Similarly, it is intended that the Secretary will

consider the desirability of affording consumers a continued

wide range of choice as to types of vessels and thus that

standards may differ with respect to different types of

vessels... .”).

Thus, Congress sought to achieve uniformity in rules of

safe boat design, and not uniformity in boats, as petitioners

14

and their amici appear to contend. Further, it is

approaching folly to propose that such uniformity in rules of

conduct will be achieved by allowing fifty different states to

use juries to determine boat safety standards. See Pet. Brf.

at 15 (proposing that common law liability would promote

uniformity because “manufacturers [now] have the

unregulated ability to build protective devices of all shapes,

sizes, materials and designs, or to provide none at all.”) In

essence, petitioners’ argument in this respect resembles a

“big bang” theory of rulemaking, in which it is hoped that

a multistate explosion of common law suits against boat

manufacturers will result in an orderly universe of boat

safety law and an appropriately-balanced uniform rule which

all manufacturers may [indeed, must] follow. Given

Congress's clear intent to achieve a uniform scheme of

regulation, as opposed to uniformity of boat design, this

Court should reject petitioners’ argument.

Lower courts dealing with statutory admiralty

preemption have consistently recognized the strong federal

interest in precluding state law claims which would impede

uniformity of rules of conduct. For example, the Fifth

Circuit has held that:

In these circumstances, the LHWCA

{Longshore and Harbor Workers’ Compensation

Act] is plainly preemptive of any state law claim

for intentional or bad faith wrongful refusal to pay

benefits due under the Act, and this is true even in

the absence of any expressly preemptive language.

As the Supreme Court stated in Fidelity Federal

Savings & Loan Ass'n v. de la Cuesta, 458 U.S.

141, 151, 102 S. Ct. 3014, 3022, 73 L.Ed.2d 664

(1982), “Absent explicit preemptive language,

15

Congress’ intent to supersede state law altogether

may be inferred because ‘(t]he scheme of federal

regulation may be so pervasive as to make

reasonable the inference that Congress left no room

for the States to supplement it’ . . . or because ‘the

object sought to be obtained by federal law and the

character of obligations imposed by it may reveal

the same purpose.’” Moreover, “[e]ven where

Congress has not completely displaced state

regulation in a specific areas, state law is nullified

to the extent that it actually conflicts with federal

law. Such a conflict arises . . . when state law

‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress.’” Jd. In order to find such an actual

conflict for this latter purpose, it is not necessary

that compliance with both state and federal law be

impossible. Jd. at 3022-23.

Atkinson v. Gates, McDonald & Co., 838 F.2d 808, 812

(Sth Cir. 1988); accord Barnard v. Zapata Haynie Corp.,

975 F.2d 919 (1st Cir. 1992).

The Fifth Circuit has therefore concluded that:

Although state law may occasionally be utilized to

fill the gaps in an incomplete and less than perfect

maritime system it cannot be employed to

contravene an act of Congress, to prejudice the

characteristic features of the maritime law or to

disrupt the harmony it strives to bring to

international and interstate relations.

16

Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 316-17 (Sth

Cir. 1987) (citation omitted), rev’d on other grounds, 486

U.S. 140 (1988), on remand, 849 F.2d 910 (Sth Cir. 1988);

see also State of Maryland Dep’t of Natural Resources v.

Kellum, 51 F.3d 1220 (4th Cir. 1995) (general maritime law

of negligence preempts state statute imposing strict liability

for damages to oyster bars); Hetzel v. Bethlehem Steel

Corp., 50 F.3d 360 (Sth Cir. 1995) (LHWCA preempts

claim under Texas Deceptive Trade Practices Act).

This Court’s recent decision in Yamaha Motor Corp.,

U.S.A. v. Calhoun, _ U.S. __ , 116 S.Ct. 619 (1996),

does not compel a different analysis in the context of this

case. In Yamaha, this Court considered whether the general

maritime law of wrongful death preempted state wrongful

death and survival statutes in the case of a twelve-year old

girl killed in a jet ski accident in state waters. As contrasted

with this case, in Yamaha there was no federal statute which

explicitly preempted state law claims; instead, the Court

considered the preemptive effect of its own decisions under

the general maritime law.

Owing in large part to the historical development of the

maritime wrongful death remedy, which resulted in courts

allowing state wrongful death statutes to supplement federal

maritime law, this Court held that state statutes were not

preempted by general maritime law in a case involving a

non-seaman injured in state waters. Jd. at 621-22.

Moreover, the Court’s ruling was carefully limited to the

availability of certain types of damages; the Court

specifically reserved judgment on whether state law could

provide the standards governing liability. Jd. at 629 n.14.

17

In sum, to the extent this Court needs to consider the

structure and purpose of the FBSA to interpret its

preemptive scope, Congress’s desire for a uniform federal

scheme of regulation dictates that petitioners’ common law

claims are preempted. Moreover, the dominant federal

interest in admiralty and maritime law militates against any

“strong presumption against preemption.”

Ill. IT WAS NOT NECESSARY FOR THE COAST

GUARD TO FOLLOW THE ADMINISTRATIVE

PROCEDURES ACT IN ORDER FOR ITS

DECISION NOT TO REGULATE TO HAVE

PREEMPTIVE EFFECT

The Eleventh Circuit correctly held that even if

petitioners’ common law claims were not expressly

preempted by the FBSA, those claims were impliedly

preempted. This Court has stated that, “a federal decision

to forgo regulation in a given area may imply an

authoritative federal determination that the area is best left

unregulated, and in that event would have as much

preemptive force as a decision fo regulate.” Arkansas Elec.

Cooperative Corp. v. Arkansas Pub. Serv. Comm'n, 461

U.S. 375, 384 (1983) (emphasis in original). Thus, a

decision not to regulate will have preemptive effect “where

[the] failure of . . . federal officials affirmatively to exercise

their full authority takes on the character of a ruling that no

such regulation is appropriate or approved pursuant to the

policy of the statute.” Ray v. Atlantic Richfield Co., 435

U.S. 151, 178 (1978) (citations omitted).

In this light, it is no answer to suggest that the Coast

Guard’s decision not to require propeller guards has no

preemptive effect because its non-regulation did not take the

form of a rule adopted through the procedures of the

Administrative Procedures Act. See generally Am. Brf. of

National Conference of State Legislatures, et al. It was not

necessary for the Coast Guard to have affirmatively

prohibited propeller guards in order for its decision to have

preemptive effect. Indeed, the Coast Guard determined that

the interests of boat safety and uniform regulation were best

served not by either prohibiting propeller guards or

requiring them, but rather by continuing to allow consumer

choice and product development to take its course through

the free market.

The Coast Guard’s decision that a propeller guard

requirement was not wise is no less preemptive than if it had

issued a regulation prohibiting propeller guards, or allowing

some types of propeller guards but not others, because the

FBSA preempts any state “law or regulation,” “safety

standard,” or “requirement for associated equipment,”

which is “not identical to” a Coast Guard regulation under

the FBSA. 46 U.S.C. § 4306. Certainly, where the Coast

Guard has determined that requiring propellers would be

unnecessary or unwise, a state common law requirement of

a propeller guard cannot be deemed identical to a non-

existent Coast Guard regulation. Using analogous

reasoning, the Coast Guard has historically interpreted the

FBSA to preempt state positive laws and regulations, but not

state common law, even when there is no counterpart federal

regulation in effect. See Am. Brf. of United States at 14-15

n.7.

It would be a strange creature of administrative law if

the Coast Guard were required to go through all the steps of

an APA rulemaking simply to allow the free market to take

its course without the intrusion of government regulation or

19

state law. The purpose of the APA is to allow public input

and thorough consideration of regulatory proposals which

would alter the status quo by burdening some individual or

business sector with government regulation; the purpose is

decidedly not to require the free market to justify its

continued existence.

The character of the Coast Guard’s decision not to

require propeller guards only serves to underscore why a

non-identical state requirement is preempted. Based on the

findings of the National Boating Safety Advisory Council,

which is composed two-thirds by recreational boaters, the

general public, and representatives of State boating safety

programs, see 46 U.S.C. § 13110(b)(1)(A)-(C), the Coast

Guard found that a propeller requirement was not simply

unnecessary but would be unwise. Indeed, the Board heard

extensive evidence that a propeller requirement could

increase possible dangers to boaters. Thus, the Eleventh

Circuit concluded that the scientific data counseled against

any regulation requiring propeller guards.

This Court’s decision in Freightliner Corp. v. Myrick,

514 U.S. 280, 115 S.Ct. 1483 (1995), upon which

petitioners rely, is readily distinguishable. In that case, this

Court concluded that common law claims based on the

failure to install antilock brakes were not preempted by the

Vehicle Safety Act. However, in Freightliner, the relevant

agency had indicated its intention to regulate braking

systems by promulgating a regulation requiring installation

of antilock brakes, but that regulation was struck down.

The defendants argued that the absence of a regulation

preempted state law claims, but this Court held that there

was no preemption where there was “no evidence that [the

agency] decided that [the product] should be free from all

20

state regulation.” Jd. at 1487. Of course, in this case, there

is such evidence, specifically, a considered determination by

the Coast G.ard that a propeller guard requirement would be

both unnecessary and unwise.

Further, unlike the FBSA, the Vehicle Safety Act

evinced no intent to grant the relevant federal agency

exclusive authority to issue safety standards. Jd. at 1487.

To the contrary, the Vehicle Safety Act’s preemption clause

implied that states could impose safety standards until the

federal government imposed a different standard; because

the federal standard was struck down, states could continue

to impose common law requirements. /d. at 1487-88. The

Court in Freightliner specifically distinguished and

preserved Atlantic Richfield as a case where the lack of

regulation resulted from an affirmative agency decision to

refrain from regulation. Jd. at 1487.

The Congress’s intent that any non-identical state “law

or regulation,” “safety standard,” or “requirement for

associated equipment,” be preempted did not require the

Coast Guard to pursue an APA rulemaking in order to

refrain from regulating. Even if the Coast Guard was

required to make an affirmative agency decision in order for

its decision to have preemptive effect, the Coast Guard did

so when, heeding the recommendations of the Advisory

Council, it declined to require propeller guards.

21

IV. ACOMMON LAW IMPOSITION OF LIABILITY

WOULD BE NO LESS DAMAGING TO FEDERAL

UNIFORMITY THAN A STATE STATUTORY OR

ADMINISTRATIVE REQUIREMENT

The common law claims petitioners seek to advance are

no less intrusive on a uniform scheme of federal regulation

than would be a state statutory or administrative requirement

of a propeller guard. The imposition of a duty on

manufacturers to provide propeller guards is, at least for

purposes of preemption analysis, every bit as much of an

imposition as if it had been imposed by state statute or

regulation, and has the same negative impact on a uniform

federal scheme. Petitioners’ amici attempt to suggest a

distinction based upon the notion that a manufacturer may

simply elect to pay a common law judgment and continue to

manufacture boats without providing propeller guards, but

this is no answer. It could just as well be said that a

manufacturer might pay a civil statutory penalty or

administrative fine without changing its conduct as a “cost

of doing business.” Further, petitioners’ argument ignores

the potential for a punitive damage award under common

law, and the possibility that the likelihood of such an award

would be enhanced if a manufacturer chose to ignore

previous judgments against it for failing to provide a

propeller guard. The prospect of compensatory and punitive

damage awards will operate to destroy the uniformity of

federal regulation dictated by the FBSA. See Schwartz,

Deterrence & Punishment in the Common Law of Punitive

Damages: A Comment, 56 S. CAL. L. REV. 133, 137 (1982)

(“ . . . ordinary civil damages -- in the course of providing

compensation -- concurrently function to deter.”).

22

This Court’s plurality opinion in Cipollone specifically

recognized that “[state] regulation can be as effectively

asserted through an award of damages as through some form

of preventive relief. The obligation to pay compensation can

be, indeed is designed to be, a potent method of governing

conduct and controlling policy.” Cipollone, 505 U.S. at 521

(citation omitted); see also Medtronic, Inc. v. Lohr, __

U.S. __, 116 S.Ct. 2240, 2259 (1996) (“[o}ne can

reasonably read the word ‘requirement’ as including the

legal requirements that grow out of the application, in

particular circumstances, of a State’s tort law.”) (Breyer, J.,

concurring); cf. New York Times Co. v. Sullivan, 376 U.S.

254, 265 (1964) (civil common law action implicates state

action sufficient to trigger First Amendment scrutiny; “[t}he

test is not the form in which state power has been applied,

but, whatever the form, whether such power has in fact been

exercised.”).

Justice Breyer’s concurring opinion in Medtronic

appropriately pointed out the anomalous result of holding

that a federal regulation preempts a differing state regulation

but not a state tort law action premising liability on the

failure to follow the state regulation. “The effects of the

state agency regulation and the state tort suit are identical.

To distinguish between them for pre-emption purposes

would grant greater power . . . to a single state jury than to

state officials acting through state administrative or

legislative lawmaking processes.” Medtronic, _ U.S. at

__, 116 S.Ct. at 2259 (Breyer, J., concurring). Utilizing

similar reasoning, this Court in Cipollone ruled that

common law damage actions are premised on the existence

of a legal duty which could constitute a “requirement or

prohibition” within the meaning of a federal statute

providing for preemption. Cipollone, 505 U.S. at 522; see

23

also Norfolk & Western R. Co. v. Train Dispatchers, 499

U.S. 117, 128 (1991) (phrase “all other law, including State

and municipal law” does not “admit of [a] distinction... .

between positive enactments and common-law rules of

liability.”).

Moreover, the economic arguments presented by

petitioners’ amici fail to take into account the full cost of a

disparate scheme of multistate regulation. See, e.g., Am.

Brf. of United States at 23 n.14; Am. Brf. of TLPJ at 23,

27. Petitioners’ amici suggest that a common law judgment

merely requires a defendant to pay for the consequences of

its conduct and that this will result in the proper level of

care; however, if the standard of liability at common law

varies from one state to the next, the effect will be the same

as if each state enacted a differing regulatory standard.

A defendant engaged in interstate sales would have to

either: 1) adhere to the most rigorous requirement imposed

by any state in order to avoid paying any judgments; 2)

adhere to some middle ground requirement while paying

judgments for its conduct in some states while that same

conduct would be deemed lawful in others; or 3) sell

different products in different states, no doubt causing

product costs to rise. To the extent manufacturers opt to

protect themselves from judgments (for example, by

providing propeller guards) even though some states would

not impose liability, consumer choice is stifled. Petitioners

do not appear to recognize this part of the equation, viewing

as they do all safety regulation as good and non-regulation

as bad. This case presents a telling example why this

viewpoint is short-sighted, because the Coast Guard found

that propeller guards could increase the risk of accidents if

required of all manufacturers.

24

This Court should not use flawed economic analysis to

infer that Congress did not mean what it said when it

“safety standard,” or “requirement for associated

equipment.” A common sense construction of the FBSA’s

ordinary meaning dictates that petitioners’ common law tort

claims based on the respondent’s failure to provide a

propeller guard are preempted.

CONCLUSION

For the foregoing reasons, amicus curiae Washington

Legal Foundation respectfully urges the Court to affirm the

Eleventh Circuit’s ruling below.

Respectfully submitted,

DANIEL J. POPEO

(Counsel of Record)

DAVID M. YOUNG

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave, NW

Washington, DC 20036

(202) 588-0302

Date: January 28, 1998 Attorneys for Amicus Curiae

—F