Amicus Curiae Brief — Van Rijk v. United States

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No. 01-706 | MAN -

IN THE | ee

Supreme Court of the Anited States -

REX R. SPRIETSMA,

Administrator of the Estate of Jean Sprietsma,

Petitioner,

MERCURY MARINE,

a Division of Brunswick Corporation,

Respondent.

On Writ of Certiorari to the

Supreme Court of Illinois

BRIEF AMICUS CURIAE OF THE MARITIME LAW

ASSOCIATION OF THE UNITED STATES

IN SUPPORT OF RESPONDENT

JOSHUA S. FORCE

Counsel of Record

RAYMOND P. HAYDEN

Of Counsel: WILLIAM R. DorsEY, Ill

JAMES PATRICK COONEY

SHER GARNER CAHILL DONALD C. GREENMAN

RICHTER KLEIN MCALISTER — ggg Poydras Street, 28th Floor

& HILBERT, L.L.C. New Orleans, Louisiana 70112

HILL RIVKINS & HAYDEN,LLP (504) 299-2100

May 20, 2002 Counsel for The Maritime Law

Association of the United States

as Amicus Curiae

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QUESTIONS PRESENTED

1. Whether federal common law, applied by state and

federal courts adjudicating maritime claims, should be

expanded to impose a duty to install “propeller guards,”

where Congress has committed that issue to a federal

administrative agency and the agency has refused to require

installation of propeller guards.

2. Alternatively, if state common law is applicable,

whether a state law propeller guard claim arising from an

accident on navigable waters of the United States is

preempted by the Federal Boat Safety Act.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED.........-.-:-00ssseessversnensnenenenenes

TABLE OF AUTHORITIES ...........0:cceesseeeeeenennnersnnnenes

NATURE OF THE MLA’S INTEREST .......-.-+-++00e+0000

SUMMARY OF ARGUMENT ...........:00cseeeeereeenenenenners

ARGUMENT .........sccssssssssssecrseeessssnsnsnsensnnnnsennsennnnsnnnenons

PETITIONER HAS NO STATE COMMON-

LAW CLAIM BECAUSE MARITIME

PRODUCTS LIABILITY LAW GOVERNS

THIS CASE ........cccccecsccsecsseeeeeesesenesnensnssnnnnsnnnnees

Il.

Propeller Guard Claims, Such as Peti-

tioner’s, Fall Within the Ambit of Admir-

alty and Maritime Jurisdiction .............+++++++

Maritime Products Liability Law Governs

Defective Design Claims Involving Recre-

ational Boats and Associated Equipment.....

Maritime Law Does Not Recognize a

Design Defect Claim for a Manufacturer's

Decision Not to Install a Propeller Guard....

THE FBSA PREEMPTS PETITIONER'S

PROPELLER GUARD CLAIM. .........0::s+eseee00

No Presumption Against Preemption

Exists Because Petitioner's Claim Affects

National Maritime Commerce ...........+-++e++++

The FBSA’s Savings Clause Does Not

Preserve Petitioner’s Propeller Guard

(iii)

TABLE OF CONTENTS—Continued

lil. THE FBSA AND GENERAL MARITIME

LAW REQUIRE UNIFORM SAFETY

STANDARDS FOR RECREATIONAL

BOATS AND, THUS, BAR PETITIONER’S

PROPELLER GUARD CLAIM. ...........ccccceeseeees

A. Congress Intended the FBSA to Provide

Uniform Federal Safety Standards for

B. Congress’s Policy of Uniformity Reflects

the Historical Importance of Uniformity in

the Field of Maritime Law .................cc0000

C. This Court’s Holdings in Foremost and

East River Underscore the Importance of

Uniformity in the Present Case..................

D. Petitioner’s Claim Undermines _ the

National Interest in Uniform Federal

Safety Standards as Prescribed by the

FBSA and General Maritime Law ...............

i de Occsncsncncenscessnvenceunesseesnssnnnnasenmenntenesnsennaess

a a re

TABLE OF AUTHORITIES

CASES Page

American Dredging Co. v. Miller, 510 U.S. 443

(1994).......ccccccorcerccoscescecsesssncenssessssssesssossososesenees 2,7,8

DDDD) ceccccocccecsccccscccsescsnsessscososssossssnssssooosssssossssses 14

Calhoun v. Yamaha Motor Corp., U.SA., 216

F.3d 338 (3d Cir.), cert. denied, 531 U.S. 1037

(2000) ......cecscerscsccssscscserssenssenssensssnsssossonssnssonseess 6

Carstensen v. Brunswick Corp., 49 F.3d 430 (8th

Cir. 1995), cert. denied, 516 U.S. 866 (1995) ... 14

City of Milwaukee v. Illinois, 451 U.S. 304

(1981) ....cccceccccccescesecerersccnsccssenssssrorsssonscossccssonsoese 23

Crosby v. National Foreign Trade Council, 530

U.S. 363 (2000)........cccescccccssssrsessereesresseneessseneseees 14-15

Davis v. Brunswick Corp., 854 F. Supp. 1574

(N.D. Ga. 1993) .....cceccccssssersrerrseenssnnessnensnenenneens 14

Douglas v. Seacoast Prods., Inc., 431 U.S. 265

(1977) .ccccccccoccrscssreserecscesssecsssosesssssssonsoonsoossossooses 26

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

Inc., 476 U.S. 858 (1986).........-cceeeeees 6, 7, 8,9, 17, 27

English v. General Elec. Co., 496 U.S. 72

(1990) ......c.ccecccoceessersesseseoseesersenssessnsesssssoosensensess 15

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

91GB) ..ceccccocccceccorsccssecsssscsssovessssssnsscossoosssssossossnes 5

Fitzpatrick v. Madonna, 623 A.2d 322 (Pa.

Super. Ct. 1993) .....cscessessesersrsrserensnensnsnnensnsnenens 14

Foremost Ins. Co. v. Richardson, 457 U.S. 668

( 19BQ) ...ceccccccccscererecesccssceseccsenssecssssssosssosoocoses 4,6, 17,27

Geier v. American Honda Motor Co., 529 U.S.

B61 (2OOD).........cccserccersesescecesesscrensessssssssssossess 13-14, 21

Jackson v. OMI Corp., 245 F.3d 525 (Sth Cir.

DOD A ) ..cecececsscccccccseccseccsecsscccssonsvesssoossooossosssooosoees 13

Jackson v. The Steamship Magnolia, 61 U.S. 296

(1857) .......ccccccsrcecsssssscsersensesssesesnssnsessssrssnsenseenens 25

TABLE OF AUTHORITIES—Continued

Jerome B. Grubart v. Great Lakes Dredge &

Dock Co., 513 U.S. 527 (1995)....cccccseeeerrreeeeeees 4, 6,7

Jussila v. M/T Louisiana Brimstone, 691 F.2d

217 (Stia Clit. 19B2Z) .ccccccccccesccccscccccecccccsesscscssscesees 13

Kelly v. Washington, 302 U.S. 1 (1937) .....-s-e0000 16

Lady v. Neal Glaser Marine, Inc., 228 F.3d 598

(Sth Cir. 2000), cert. denied, 532 U.S. 941

Lewis v. Brunswick Corp., 107 F.3d 1494 (11th

Cir. 1997), cert. dismissed, 523 U.S. 113

| 14

The Lottawanna, 88 U.S. (21 Wall.) 558 (1874)... 25

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ....... 14, 15

Miles v. Apex Marine Corp., 498 U.S. 19 (1990)... 9, 27

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

(a 9,27

Moore v. Brunswick Bowling & Billiards Corp.,

889 S.W.2d 246 (Tex.), cert. denied, 513 U.S.

DGS (DDS) ccccccceccsccsceccsesessrscssesscssssscsssssvesssesssess 14

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

STS (1GTD) ccccccccccsccccscscscessesesccnssscsssssosssssssssosscoses 2

Moss v. Outboard Marine Corp., 915 F. Supp.

183 CED. Call. 1996) ..cccccccccccccscccrsccccccccssccssescsees 14

Mowery v. Mercury Marine, Div. of Brunswick

Corp., 773 F. Supp. 1012 (N.D. Ohio 1991) ..... 14

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

BF (BSB) cccccccsccccssscesssssssssesessssese 2, 6, 7, 18, 19, 27, 30

Pan-Alaska Fisheries, Inc. v. Marine Constr. &

Design Co., 565 F.2d 1129 (9th Cir. 1977) ....... 8, 22

Ray v. Atlantic Richfield Co., 435 U.S. 151

Se 2,9, 15

Ryan v. Brunswick Corp., 557 N.W.2d 541

1 |) ee 14

Vil

TABLE OF AUTHORITIES—Continued

Page

Shield v. Bayliner Marine Corp., 822 F. Supp. 81

(D. Conn. 1993) .....cccsseeseerreeressnseessrnseensnnesnnennes 14

Shields v. Outboard Marine Corp., 776 F. Supp.

1579 (M.D. Ga. 1991)....cccsceeeeeeeseensserrsnenenenennes 14

Sisson v. Ruby, 497 U.S. 358 (1990)......-00eeeeeeeeeees 2,4

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

(1916) ....sc.ccescescsscscesssrssreeseesenseessssnnsnssnsensensnnensess 25

United States v. Locke, 529 U.S. 89 (2000)......... 2, 15, 19

Veal v. Teleflex, Inc., 586 So.2d 188 (Ala. 1991).. 14

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

B4B U.S. 310 (1955)......ccccecceeeereeeereeseneenseennnnens 8

Yamaha Motor Corp., U.S.A. v. Calhoun, 516

U.S. 199 (1996).......cccccccrsseereeeeereeesenneseenes 2, 5, 7, 26, 27

CONSTITUTION, STATUTES, AND

REGULATIONS

U. S. CONST. art. TID, § 2.....0ccccceseeeeeessereseeresnennenens 25

Carriage of Goods by Sea Act, 46 U.S.C.

§§ 1300-1315 ......cccecccceresesssseessesnserenessnnsnsnnnenens 2

Convention of the International Regulations to

Prevent Collisions at Sea, 28 U.S.T. 3459, as

amended, T.1.A.S. 10672 .......:eseeeseereeerneeernenees 2

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

§§ 761-68 .......ccesssvseserrersensensesnssnsnnensenesnssneneseess 2, 18

46 U.S.C. § 767 ....cccscccesccssreseeeseeeressnnessenseneneenees 18

Federal Arbitration Act, 9 U.S.C. §§ 1-16..........+ 2

The Federal Boating Act of 1958, 72 Stat. 1754,

A6 U.S.C. § S27 A-D.......cccseesveeerseesesesenssnensnnnnennees 16

Federal Boat Safety Act, 46 U.S.C. §§ 4301-11... 8

46 U.S.C. § 4301 ......cccccccseecersseerscersnnnsnenseensenees 10

46 U.S.C. § 4302(a)(1).....ccceerceeeseeereserennneeennsnnens 10, 19

46 U.S.C. § 4302(C) ....cecccceerseereeeersesnresseneeneneenees 11

46 U.S.C. § 4302(C)(1)...cceecceereeeeerseneersnresernnennes 12, 30

viii

TABLE OF AUTHORITIES—Continued

Page

46 U.S.C. § 4302(C)(3)....cccereeerreeerreeereeeseerennees 11

46 U.S.C. § 4306.......cccccsrossrsrserrererreesesers 10, 19, 21, 24

AGB U.S.C. § 4307......cccccrcccsrssersesrresersseressssssssosoes 10, 17

46 U.S.C. § 4307 (a) ......cecccsesrsceerseeerereesnsesseessnees 24

46 U.S.C. § 4307 (a)(1)...ccccccccrscerreerreerenssenserenens 19

46 U.S.C. § 431 10g) .ccccscerreeereeereeeeresennens 18, 19, 20-21

Foreign Sovereign Immunities Act, 28 U.S.C.

§§ 1330, 1602-11 .......cscscscsseererreerserssssseenrssesnees 2

Jones Act, 46 U.S.C. App. § 688 ........ccceeereeerees 2

The Motorboat Act of 1940, 54 Stat. 165, 46

U.S.C. § S2Ga-t......cccceerccsssssescorsroeeeseessresrsssssenees 16

Motor Boat Regulations Act, 46 U.S.C. § 511

CL SOG. creessssesssssesssvsereesessensenennennsnessnsnsensensnnensenees 15-16

United States Inland Navigation Rules, 33 U.S.C.

§§ 2001-73 .....eccssccssssvssssssssersernsensessesessssssessnsonses 2

Water Pollution Control Act Amendments of

1972, 33 U.S.C. §§ 1251-1367 ......cccceeeeeeerneerees 2

33 C.F.R. Pts. 173-75, 177, 179, 181, 183

(2O0D) ...ccccceccceccserseesrsecesoossossscsssosssssoessoosssoossossoes 13

LEGISLATIVE HISTORY

H.R. REP. No. 92-324, 92d Cong., Ist Sess.

(1971) .ccccccccoccccesccccscsecosbosssosesssoosososss 10, 16, 20, 23, 24

H.R. REP. No. 98-388, 98th Cong., Ist Sess.

(1983), reprinted in 1983 U.S.C.C.A.N, 924..... 24-25

SEN. REP. No. 92-248, 92d Cong., Ist Sess.

(1971) ..ccccccccccccccssescovescossocsssossssossesssooosssooees 9, 10, 20, 24

National Boating Safety Program: Hearing on S.

696 Before the Merchant Marine Subcomm. of

the Senate Comm. on Commerce, 92d Cong.,

Dot BOOB. ccccccccccsccccscseccososessssssssossscnoress 11, 20, 21, 23, 24

TABLE OF AUTHORITIES—Continued

Page

Recreational Boat Safety: Hearings on H.R.

15041, H.R. 15140 Before the Subcomm. on

Coast Guard, Coast and Geodetic Survey, and

Navigation of the House Comm. on Merchant

Marine and Fisheries, 91st Cong., 2d Sess. ....-. 10, 11,

20, 24, 29

OTHER AUTHORITIES

James W. Bartlett, III, Recreational Boats: The

Evolution of Jurisdiction and Choice-of-Law

Issues from the Constitution Through the

Calhoun Decision, 75 TuL. L. REv. 1247

(2001) ..sscececesssssssssssenessesensesssenenensensnsnensnsssenensesee® 13

Lizabeth L. Burrell, Application of State Law to

Maritime Claims: Is There a Better Guide

Than Southern Pacific Co. v. Jensen?, 21

TUL. MAR. L.J. 53 (1996) ...-ccecseereereereeersersnerenney 25

David P. Currie, Federalism and Admiralty:

“The Devil's Own Mess,” 1960 Sup. CT. REV.

158.....-ccccocsvcsescessescssssossosesssnsossssossssesseossossssseoees 25

Robert Force, Choice of Law in Admiralty Cases:

“National Interests” And The Admiralty

Clause, 75 TUL. L. REV. 1421 (2001) ...ccceecereeees 18, 26

Robert Force, Deconstructing Jensen: Admiralty

and Federalism in the Twenty-First Century,

32 J. MAR. LAW & COMM. 517 (2001) ...-+-+++0000+ 25, 28

Robert Force, An Essay on F ederal Common

Law and Admiralty, 43 St. Louis U. L.J. 1367

UNITED STATES SHIPPING POLICIES AND THE

WORLD MARKET 191 (William A. Lovett ed.,

TABLE OF AUTHORITIES—Continued

GRANT GILMORE & CHARLES L. BLACK, JR., THE

LAW OF ADMIRALTY (2d ed. 1975)...........c0eeee0

Michael F. Vitt, Stemming the Tide: Uniformity

in Admiralty Law, 28 U. BALT. L. REv. 423

Ernest A. Young, The Last Brooding Omni-

presence: Erie Railroad v. Tompkins and the

Unconstitionality of Preemptive Federal

Maritime Law, 43 St. Louis U. LJ. 1349

Ernest A. Young, Preemption at Sea, 67 GEO.

WASH. L., REV. 273 (1999).........cccsscsssrsssereeeeeenes

MISCELLANEOUS

Dale Hollow Lake Website, <http://www.

dalehollow lake.net> (visited May 7, 2002) ......

U. S. Corps of Engineers, Nashville District,

Dale Hollow Lake - Home Page, <http://www.

om.usace.army.mil/op/DAL/rec> (visited May

Dy SEED cxnceacnsecsnessnnennsnnsennssonesennsnenseeneumsenpennenses

U. S. Coast Guard, Office of Boating Safety,

Regulations & Publications, <http://www.

uscgboating.com/reg> (visited May 9, 2002)....

28-29

BRIEF AMICUS CURIAE OF THE MARITIME LAW

ASSOCIATION OF THE UNITED STATES

IN SUPPORT OF RESPONDENT

The Maritime Law Association of the United States (the

“MLA”) respectfully files this brief amicus curiae in support

of Respondent, Mercury Marine, a Division of Brunswick

Corporation (“Respondent”), and asks this Court to affirm the

decision of the Supreme Court of Illinois.’ Petitioner, Rex R.

Sprietsma, Administrator of the Estate of Jean Sprietsma

(“Petitioner”), and Respondent have consented, in writing, to

the filing of this brief. The MLA has filed the parties’ written

consents with the Clerk of this Court pursuant to Rule 37.3 of

this Court.

NATURE OF THE MLA’S INTEREST

The MLA is a national bar association that was founded in

1899. The MLA’s membership includes more than 3,200

lawyers, law professors, judges, and others whose professions

and interests involve maritime affairs. The attorney members

of the MLA, most of whom are specialists in maritime law,

represent all maritime interests, including shipowners,

charterers, cargo interests, port authorities, seaman,

longshoremen, passengers, underwriters, manufacturers, and

other maritime claimants and defendants.

The Articles of Incorporation of the MLA define its

purpose as follows:

The objectives of the Association shall be to advance

reforms in the Maritime Law of the United States, to

facilitate justice in its administration, to promote

uniformity in its enactment and interpretation, to

' In accordance with Rule 37.6 of the Supreme Court of the United

States, no counsel for any of the parties authored this brief in whole or in

part. Likewise, no person or entity, other than the MLA, its members, and

its counsel, made a monetary contribution to the preparation or

submission of this brief.

furnish a forum for the discussion and consideration

of problems affecting the Maritime Law and its

administration, to participate as a constituent member

of the Comité Maritime International and as an

affiliated organization of the American Bar Associ-

ation, and to act with other associations in efforts to

bring about a greater harmony in the shipping laws,

regulations and practices of different nations.

In 1975, the MLA passed a resolution asserting that the MLA

“considers it of the utmost importance and in the public

interest that maritime law be uniform to the maximum extent

possible throughout the United States.” A subsequent MLA

resolution, in 1986, reaffirmed its “support of the importance

of maintaining national uniformity in maritime law.”

To further these objectives, the MLA has appeared as an

amicus curiae before this Court, on a number of occasions, to

argue in favor of uniformity in the substance and application

of maritime law.” The MLA has also sponsored a wide-range

of legislation dealing with maritime matters > and has

cooperated with congressional committees in the formulation

of other maritime legislation.* Similarly, the MLA has

2 E.g., United States v. Locke, 529 U.S. 89 (2000); Yamaha Motor

Corp., U.S.A. v. Calhoun, 515 U.S. 1186 (1996); American Dredging Co.

vy. Miller, 510 U.S. 443 (1994); Sisson v. Ruby, 497 U.S. 358 (1990);

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986); Ray v. Atlantic

Richfield Co., 435 U.S. 151 (1978); Moragne v. States Marine Lines, Inc.,

398 U.S. 375 (1970).

> E g., Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300-1315, Death

on the High Seas Act, 46 U.S.C. §§ 761-68, Federal Arbitration Act, 9

U.S.C. §§ 1-16, Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330,

1602-11, and Jones Act, 46 U.S.C. App. § 688.

* E.g., Water Pollution Control Act Amendments of 1972, 33 U.S.C.

§§ 1251-1367; Convention of the International Regulations to Prevent

Collisions at Sea, 28 U.S.T. 3459, as amended, T.1.A.S. 10672; United

States Inland Navigation Rules, 33 U.S.C. §§ 2001-73.

assisted with international maritime projects undertaken by

the United Nations, the International Maritime Organization,

and the Comité Maritime International.

In particular, the MLA has been keenly interested and

involved in the area of recreational boating with its increasing

popularity and inclusion within admiralty jurisdiction. The

MLA includes a Committee on Recreational Boating, which

considers issues arising from the increasing presence of

pleasure craft on this country’s waters as well as the impact

of legislation and judicial decisions concerning recreational

boating on other areas of maritime law. The MLA has a

strong interest in this case because it concerns whether

maritime products liability law recognizes a cause of action

for a manufacturer’s decision not to install a propeller guard

on a recreational boat motor.

SUMMARY OF ARGUMENT

This case lies at the intersection of two important

principles of uniformity. In enacting the Federal Boat Safety

Act (the “FBSA”), Congress expressed a clear intent to estab-

lish uniform national safety standards governing recreational

boats and associated equipment. Similarly, to ensure the

uniformity of rules governing maritime navigation and

conduct, this Court held that admiralty jurisdiction extends to

recreational boating accidents in Foremost Insurance Co. v.

Richardson. In doing so, this Court made the general

maritime law applicable to such cases, including the doctrine

of maritime products liability established in East River SS.

Corp. v. Transamerica Delaval, Inc. Federal maritime law,

as embodied in the FBSA and general maritime law, does not

recognize Petitioner’s propeller guard claim in light of the

affirmative decision of the Coast Guard not to require

propeller guards on recreational boat motors.

ARGUMENT

I. PETITIONER HAS NO STATE COMMON-LAW

CLAIM BECAUSE MARITIME PRODUCTS

~° LIABILITY LAW GOVERNS THIS CASE.

A. Propeller Guard Claims, Such as Petitioner’s,

Fall Within the Ambit of Admiralty and

Maritime Jurisdiction.

Throughout this litigation, Petitioner has ignored that his

claim falls within the ambit of admiralty and maritime

jurisdiction. Surprisingly, Petitioner’s amici disagree as to

whether his propeller guard claim is subject to admiralty

jurisdiction. Compare Brief Amici Curiae of the States of

Missouri, et al. (“States Br.”) at 4, 12-13 and Amicus Curiae

Brief of The Association of Trial Lawyers of America in

Supp. of Pet’r (“ATLA Br.”) at 22. The existence of

admiralty jurisdiction should not, however, be lightly ignored

because it bears significantly on the issues before this Court.

Maritime tort jurisdiction exists over claims that involve

both a maritime “locus” and “nexus.” Jerome B. Grubart v.

Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995).

The maritime locus requirement is satisfied generally where

the alleged tort occurred on navigable waters. The maritime

nexus requirement is satisfied where: (1) the type of incident

at issue poses “a potentialiy disruptive impact on maritime

commerce” and (2) the “general character” of the “activity

giving rise to the incident” bears a “substantial relationship to

traditional maritime activity.” Jd.; Sisson v. Ruby, 497 U.S.

358, 363-67 (1990).

Importantly, this Court has repeatedly recognized, in the

interest of uniformity, that admiralty jurisdiction extends to

accidents involving recreational boats. See, e.g., Sisson, 497

U.S. at 363-67 (applying maritime jurisdiction to a fire

aboard a noncommercial vessel in a marina); Foremost Ins.

Co. v. Richardson, 457 U.S. 668, 674-77 (1982) (applying

admiralty jurisdiction to a collision between two noncom-

mercial vessels). The application of admiralty jurisdiction to

recreational boating accidents is thus now well established.

Accordingly, in its most recent opinion concerning recrea-

tional boating, this Court summarily concluded _ that

“(bjecause this case involves a watercraft collision on navig-

able waters, it falls within admiralty’s domain.” Yamaha

Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1996).

Like the present case, Calhoun also involved a products

liability claim against a recreational boating manufacturer.

See id. at 202.

Petitioner’s claim similarly satisfies the Court’s test for

admiralty jurisdiction. First, the accident at issue occurred on

the navigable waters of Dale Hollow Lake.” J.A. 101. In

Finneseth v. Carter, a case involving a collision between two

pleasure craft, the Sixth Circuit Court of Appeals expressly

determined that “Dale Hollow Lake is an interstate water

body susceptible or capable of being used as an interstate

highway of commerce” and “it meets the Supreme Court’s

requirements for navigability for admiralty jurisdiction... .”

712 F.2d 1041, 1047 (6th Cir. 1983).

Second, the type of maritime incident at issue poses a

potentially disruptive impact on maritime commerce. This

inquiry requires a court to “assess the general features of the

type of incident involved to determine whether such an

incident is likely to disrupt commercial activity.” Sisson, 497

U.S. at 363. Accidents involving collisions and allisions on

5 Dale Hollow Lake is an interstate lake covering 27,700 surface acres

of water, 620-miles of shoreline, and portions of six counties in Tennessee

and Kentucky. See <http://www.orn.usa.e.army.mil/op/DAL/rec> (visited

May 7, 2002). Fourteen commercial marinas on the lake provide a variety

of services to millions of visitors every year, including small vessel and

houseboat rental, restaurants, moorage, and lodging. /d.; see also

<http://www.dalehollow-lake.net> (visited May 7, 2002). A map of Dale

Hollow Lake is attached to this Brief as an Appendix.

navigable waters, such as here, especially when coupled with

maritime law’s traditional concern for navigation satisfy this

test. Foremost, 457 U.S. at 675.

Third, the general conduct involved in this case bears a

substantial relationship to traditional maritime activity. The

proper inquiry is “whether the tortfeasor’s activity, commer-

cial or noncommercial, on navigable waters is so closely

related to activity traditionally subject to admiralty law that

the reasons for applying special admiralty rules would apply

in the suit at hand.” Grubart, 513 U.S. at 539-40. This case

concerns the safety and operation of a recreational boat on

navigable waters, which this Court has recognized “clearly

falls within the substantial relationship.” Jd. at 540 (citing

Foremost, 457 U.S. at 675). Therefore, Petitioner’s claim

falls squarely within admiralty jurisdiction.°

B. Maritime Products Liability Law Governs

Defective Design Claims Involving Recreational

Boats and Associated Equipment.

This jurisdictional analysis cannot be ignored because it

provides the necessary first step in determining what law

governs Petitioner’s claim. As this Court has held, “[w]Jith

admiralty jurisdiction comes the application of substantive

admiralty law.” East River S.S. Corp. v. Transamerica

Delaval, Inc., 476 U.S. 858, 864 (1986). Substantive

admiralty law applies to suits subject to a court’s admiralty

jurisdiction whether the plaintiff files the suit in federal or, as

in this case, state court. Offshore Logistics, Inc. v. Tallentire,

477 U.S. 207, 222-23 (1986). Under the “Savings to Suitors”

Clause, state courts have jurisdiction to consider in personam

maritime claims, but federal maritime standards govern a

plaintiff's substantive legal rights. /d. at 222-23. That is, the

® See Calhoun v. Yamaha Motor Corp., U.S.A., 216 F.3d 338, 345 (3d

Cir.) (finding admiralty jurisdiction on remand), cert. denied, 531 U.S.

1037 (2000).

so-called “reverse-Erie” doctrine limits “the extent to which

state law may be used to remedy maritime injuries.” /d.;

accord ATLA Br. at 27.

In recent cases, this Court has suggested, however, that the

East River maxim is not iron clad, that is, “federal admiralty

jurisdiction does not result in automatic displacement of

state law.” Grubart, 513 U.S. at 545; see also Calhoun, 516

U.S. at 206 (addressing remedies available to parents of

recreational boater killed in state territorial waters); American

Dredging Co. v. Miller, 510 U.S. 443, 452 (1994) (consid-

ering federal displacement of state forum-non-conveniens

law). Unlike the present case, these cases did not address

whether federal or state liability standards governed a plain-

tiff’s maritime claim. See, e.g., Calhoun, 516 U.S. at 215

n.13 (declining to decide law governing liability in maritime

design defect case). If this Court’s statement in East River is

to have any meaning, however, federal maritime law must

apply to Petitioner’s products liability claim.’

Indeed, this Court’s holding in East River—although

ignored by Petitioner—itself demonstrates the applicability of

substantive maritime law to his products liability claims. In

East River, the Court recognized, for the first time, the

doctrine of “products liability, including strict liability, as a

part of the general maritime law.” 477 U.S. at 865. East

River thereby created a field of maritime products liability

law as a part of the general maritime law. Robert Force, An

Essay on Federal Common Law and Admiralty, 43 St. LOUIS

U. LJ. 1367, 1373 (1999) (“Force, Common Law’).

Importantly, the East River Court did not simply adopt

state law or leave the resolution of products liability claims,

” As the authors of a leading treatise have observed, “[i}f there is any

sense at all in making maritime law a federal subject, then there must be

some limit set to the power of the states to interfere in the field of its

working.” GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF

ADMIRALTY § 1-17 at 48 (2d ed. 1975) (“GmLMORE & BLACK”).

in maritime cases, to state law. The Court could, of course,

have easily done so because, at the time of its decision, the

overwhelming majority of states had adopted some form of

products liability law. See Pan-Alaska Fisheries, Inc. v.

Marine Constr. & Design Co., 565 F.2d 1129, 1134 & n.2

(9th Cir. 1977) (noting the prevalence of state strict products

liability law). Moreover, this Court had previously chosen to

apply state law, in maritime cases, in the absence of a

congressionally or judicially established maritime rule. See,

e.g., Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S.

310, 320-21 (1955); see also Miller, 510 U.S. at 451-52.

Nevertheless, the Court decided, instead, to “fashion” a

federal admiralty rule and, in doing so, created a body of

maritime products liability law. The creation of federal

maritime products liability law reflects the need for uniform

standards for vessel and equipment design in light of their

inherently mobile nature. This maritime products liability

law, along with the FBSA, 46 U.S.C. §§ 4301-11, governs

Petitioner’s propeller guard claim—not Illinois law. C7.

ATLA Br. at 22, 27. As demonstrated below, federal

maritime law does not recognize such a design defect claim.

C. Maritime Law Does Not Recognize a Design

Defect Claim for a Manufacturer’s Decision

Not to Install a Propeller Guard.

In light of East River, this Court must look to federal

maritime law, not Illinois law, to determine whether

Petitioner may maintain a design defect claim for the lack of

a propeller guard on a recreational boat motor. Two sources

of law comprise federal maritime law: congressional legis-

lation and general maritime law." GmMorE & BLACK

§ 1-17 at 47; Force, Common Law at 1370. Where Congress

“The “general maritime law is an amalgam of traditional common-law

rules, modifications of those rules, and newly created rules” taken from

federal and state sources. East River, 476 U.S. at 864.

—-

has enacted maritime legislation, it supplies the applicable

substantive maritime rules. Miles v. Apex Marine Corp., 498

U.S. 19, 27 (1990); Mobil Oil Corp. v. Higginbotham, 436

US. 618, 625 (1978). “Absent a relevant statute, the general

maritime law, as developed by the judiciary, applies.” East

River, 476 U.S. at 864.

The relevant statute, here, is the FBSA and the related

regulations issued by the United States Coast Guard (the

“Coast Guard”). The FBSA and Coast Guard regulations do

not directly answer the question before this Court. The FBSA

is silent on propeller guards. The Coast Guard affirmatively

decided not to promulgate a regulation requiring them.

This Court has recently held, nevertheless, that, in

developing general maritime law, courts must accord great

deference to related federal legislation and the limits imposed

by Congress. See Miles, 498 U.S. at 27 (“we must also keep

strictly within the limits imposed by Congress . . ., and an

admiralty court must be vigilant not to overstep the well-

considered boundaries imposed by federal legislation.”).

Federal legislation, such as the FBSA, represents the courts’

“primary guide” in defining the general maritime law in

congressionally regulated areas “both because of the interest

in uniformity and because Congress’ considered judgment

has great force in its own right.” Higginbotham, 436 U.S. at

624: see also Ray v. Atlantic Richfield Co., 435 U.S. 151, 176

(1978) (same). The FBSA, its legislative history, and the

Coast Guard’s regulatory activity do not support recognition

of propeller guard claims under federal maritime law.

Congress enacted the FBSA in 1971 “to improve boating

safety by requiring manufacturers to provide safer boats and

boating equipment to the public through compliance with

safety standards to be promulgated by the Secretary of the

t in which the Coast Guard is operating... .”

SEN. REP. NO. 92-248, 92d Cong., Ist Sess. 6 (1971) (“SEN.

Rep.”). Congress intended the FBSA to be a “comprehensive

piece of legislation.” H.R. REP. No. 92-324, 92d Cong., Ist

Sess. 10 (1971) (“H.R. ReP.”). Among its key provisions, the

FBSA authorized the Coast Guard, to which rule-making

authority was delegated, to establish “minimum safety stand-

ards for recreational vessels and associated equipment.” 46

U.S.C. § 4302(a)(1).

In authorizing the Coast Guard to promulgate safety

standards for associated equipment, such as recreational boat

motors, Congress sought to foster the “establishment of

national construction and performance standards.” SEN. REP.

at 15 (emphasis added). Congress recognized that the “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 14 (emphasis added). Congress intended the Coast

Guard’s safety standards to “preempt{] the field of boating

standards or regulations.” H.R. REP. at 11; see also 46 U.S.C.

§ 4306. Therefore, the Coast Guard’s safety standards apply

not only to all recreational boats and associated equipment on

navigable waters but also to all boats or equipment introduced

into interstate commerce.’ 46 U.S.C. §§ 4301, 4307.

The FBSA empowers the Coast Guard, however, only to

promulgate standards necessary “to avoid a substantial risk of

* The legislative history conclusively shows Congress’s intent. See,

e.g., SEN. REP. at 17 (“Applicability of the sections dealing with safety

standards is extended to ‘boats’ that move in interstate commerce. This is

intended to assure that virtually all boats are manufactured in compliance

with federal safety standards whether or not they will be operated within

the federal maritime jurisdiction.”), H.R. REP. at 13 (same); Recreational

Boat Safety: Hearings on HR. 15041, H.R. 15140 Before the Subcomm.

on Coast Guard, Coast and Geodetic Survey, and Navigation of the House

Comm. on Merchant Marine and Fisheries, 91st Cong., 24 Sess. 36

(“ Hearing”) (“This subsection utilizes interstate commerce as the

constitutional basis to extend the applicability of those sections of the Act

pertaining generally to boat safety standards to certain boats in addition to

those used on waters subject generally to Federal jurisdiction.”).

personal injury to the public” and “appropriate in relation to

the degree of hazard that the compliance will correct.” Id. §

4302(c)\(3). The Coast Guard testified, at the FBSA hearings,

that it would promulgate regulations only where necessary to

insure the manufacture of reasonably safe and reliable boats

and equipment. National Boating Safety Program: Hearing

on S. 696 Before the Merchant Marine Subcomm. of the

Senate Comm. on Commerce, 92d Cong., Ist Sess. 45, 54, 55

(“Sen. Hearing”); H.R. Hearing at 79. In prescribing such

regulations, the Coast Guard must (1) consider whether a

regulation will contribute to recreational vessel safety, (2)

evaluate relevant recreational vessel safety standards,

statistics, and data, and (3) consult with the National Boating

Safety Advisory Council (“NBSAC”). Id. § 4302(c).

In the context of this legislative and administrative scheme,

the Coast Guard considered, in 1988, whether to promulgate a

safety standard requiring propeller guards. The Coast Guard

initially instructed the NBSAC to study the feasibility and

potential safety advantages and disadvantages of propeller

guards. The NBSAC appointed a Propeller Guard Subcom-

mittee (the “Subcommittee”) and directed it to assess “the

arguments for and against some form of mechanical guard to

protect against propeller strikes” and consider whether “the

Coast Guard [should] move towards a federal requirement for

some form of propeller guard.”"” J.A. 43.

Following a year-long study, the Subcommittee recom-

mended that the Coast Guard “take no regulatory action to

require propeller guards.”'' J.A. 40. The Subcommittee

10 ‘The Subcommittee included a Coast Guard representative as well as

state, industry, and public members. J.A. 71.

'! The Subcommittee conducted field tests of various types of propeller

engineer, propeller guard advocates, and physicians, and reviewed

numerous documents, video tapes, and other visual materials. J.A. 13-17,

based this recommendation on several findings. First, the

Subcommittee concluded that propeller guards significantly

increased the underwater profile of recreational boats, thereby

magnifying the possibility of blunt trauma injuries. J.A. 36.

Some propeller guards were also found to pose a risk of

catching body appendages in the guards and holding them

against the propellers. /d. Second, the Subcommittee deter-

mined that, at normal operating speeds, propeller guards

interfered with the boats’ steering and control. J.A. 31-32,

37. Finally, the Subcommittee found that “[nJo simple

universal design suitable for all boats and motors in existence

ha[d] been described or demonstrated to be technologically or

economically feasible.” J.A. 38.

The Subcommittee presented its report to the NBSAC,

which unanimously adopted its recommendations. J.A. 74-

79. The NBSAC referred the report to the Coast Guard. The

Coast Guard reviewed the Subcommittee’s report and

adopted all of its recommendations, including its recommen-

dation to take no regulatory action to require propeller guards.

J.A. 80. The Coast Guard noted, inter alia, that “[a}vailable

propeller guard accident data do not support imposition of a

regulation requiring propeller guards on motorboats.” /d. The

Coast Guard’s affirmative decision not to require propeller

guards evidences the agency’s determination that such a

requirement would not “contribute to recreational vessel

safety.” '? 46 U.S.C. § 4302(c)(1).

49-56. Based upon this study, the Subcommittee drafted a report to the

NBSAC, which the Subcommittee unanimously approved. J.A. 14.

'2 The Coast Guard has promulgated regulations under the FBSA

where it has determined that the regulations would contribute to recrea-

tional vessel safety. The Coast Guard has issued regulations governing

“design and construction of recreational boats,” including “manufacturer

certification, identification of boats, display of capacity information, safe

loading, safe powering, flotation, electrical systems, fuel systems,

In light of the FBSA’s legislative history and the Coast

Guard’s affirmative decision not to impose a propeller guard

requirement, this Court should not recognize Petitioner's

propeller guard claim under federal maritime law. See James

W. Bartlett, Ill, Recreational Boats: The Evolution of

Jurisdiction and Choice-of-Law Issues from the Constitution

Through the Calhoun Decision, 75 TUL. L. REV. 1247, 1293-

94 (2001). Congress has established a comprehensive scheme

for identifying and promulgating necessary safety standards,

leaving the ultimate decision to the Coast Guard. This case is

not one of “inaction” by the Coast Guard. Rather, the Coast

Guard “studied . . . and affirmatively decided as a substantive

matter that it was not appropriate to impose a requirement.”

Lady v. Neal Glaser Marine, Inc., 228 F.3d 598, 615 (Sth Cir.

2000), cert. denied, 532 U.S. 941 (2001). Thus, courts should

defer to the statutory scheme devised by Congress in the

FBSA in developing standards of conduct and safety under

the general maritime law.

It is inconceivable that Congress intended for courts or

juries to establish their own safety standards under the guise

of general maritime law as Petitioner’s amicus ATLA

suggests.’ See ATLA Br. at 28. Permitting courts to do so

ventilation, start-in-gear protection, navigation lights, and backfire flame

control.” <http://www.uscgboating.com/reg> (visited May 9, 2002); see

also 33 C.F.R. Pts. 173-75, 177, 179, 181, 183 (2000).

'3 The lower federal courts often look to Coast Guard regulations, or

the absence of a regulation, in determining liability in maritime cases.

See, ¢.g., Jackson v. OMI Corp., 245 F.3d 525, 528 (Sth Cir. 2001)

(finding vessel was not unseaworthy where the “design of the doorway in

question was dictated by federal regulations”); Jussila v. M/T Louisiana

Brimstone, 691 F.2d 217, 219 (Sth Cir. 1982) (noting that no Coast Guard

regulation required different color for metal rim on which plaintiff

tripped).

4 tt would be naive to suggest that jury verdicts in products liability

cases do not establish “standards” to which manufacturers are forced to

adhere. See Geier v. American Honda Motor Co., 529 U.S. 861, 882

would not only undermine Congress's clear intent but would

also greatly harm the uniformity of maritime law, thereby

producing significant practical problems for manufacturers

and boat operators. See infra at Ill. The general maritime

law should especially not be extended to include Petitioner’s

propeller guard claim when almost every court to have

considered similar cases—both federal and state—has refused

to recognize such claims although for different reasons.'°

Il. THE FBSA PREEMPTS PETITIONER’S PRO-

PELLER GUARD CLAIM.

Even if this Court considers this case under the preemption

analysis applied by the Supreme Court of Illinois, it should

still affirm the court’s holding. The MLA leaves to other

parties consideration of the type of preemption that applies to

this case but addresses two issues that bear directly upon this

issue: the supposed presumption against preemption and the

FBSA’s “savings” clause. Indeed, this Court has recognized

that “the categories of preemption are not ‘rigidly distinct.”

(2000); Medtronic, Inc. vy. Lohr, 518 U.S. 470, 509 (1996) (O'Connor, J.

concurring and dissenting); see also ROBERT Force, U.S. Tort Lew

Problems, in UNITED STATES SHIPPING POLICIES AND THE WORLD

MARKET 191, 242-14 (William A. Lovett ed., 1996).

* See, e.g., Lady, supra; Lewis v. Brunswick Corp., 107 F.3d 1494,

1505-06 (11th Cir. 1997), cert. dismissed, 523 U.S. 113 (1998):

Carstensen v. Brunswick Corp., 49 F.3d 430, 431-32 (8th Cir.), cert.

denied, 516 U.S. 866 (1995); Moss v. Outboard Marine Corp., 915 F.

Supp. 183, 186 (E.D. Cal. 1996); Davis v. Brunswick Corp., 854 F. Supp.

1574, 1580 (N.D. Ga. 1993); Shield v. Bayliner Marine Corp., 822 F.

Supp. 81, 83 (D. Conn. 1993); Shields v. Outboard Marine Corp., 776 F.

Supp. 1579, 1581 (M.D. Ga. 1991); Mowery v. Mercury Marine, Div. of

Brunswick Corp., 773 F. Supp. 1012 (N.D. Ohio 1991); Ryan v.

Brunswick Corp., 557 N.W.2d 541, 548-49 (Mich. 1997): Fitzpatrick v.

Madonna, 623 A.2d 322 (Pa. Super. Ct. 1993); Veal v. Teleflex, Inc., 586

So.2d 188 (Ala. 1991); but see Ard v. Jensen, 996 S.W.2d 594, 599-600

(Mo. Ct. App. 1999); Moore v. Brunswick Bowling & Billiards C orp., 889

S.W.2d 246, 250-51 (Tex.), cert. denied, 513 U.S. 1057 (1994).

Crosby v. National Foreign Trade Council, 530 U.S. 363, 373

n.6 (2000) (quoting English v. General Elec. Co., 496 U.S.

72, 79 n.5 (1990)). Regardless, under whatever preemption

analysis applies, Congress plainly intended the FBSA to

invest the Coast Guard with the sole authority to promulgate

safety standards and, therefore, to preempt any other entity—

whether legislative, administrative, or judicial—from doing

so. See Medtronic, 518 U.S. at 485-86 (“any understand-

ing of the scope of a pre-emption statute must rest primarily

on ‘a fair understanding of congressional purpose.’”)

(citation omitted).

A. No Presumption Against Preemption Exists

Because Petitioner’s Claim Affects National

Maritime Commerce.

Petitioner begins his preemption analysis by arguing that a

strong “presumption against preemption” governs his case.

Pet’r Br. at 16; see also States Br. at 5-7. Petitioner is

incorrect. As this Court recognized recently in United States

v. Locke, no presumption against preemption exists where the

state laws in question “bear upon national and international

maritime commerce.” 529 U.S. 89, 108 (2000) (emphasis

added). The regulation of maritime commerce is a matter in

“which the federal interest is so dominant that the federal

system will be «ssumed to preclude enforcement of state laws

on the same subject.” Ray, 435 U.S. at 157. Contrary to

Petitioner's suggestion, the Court’s reasoning in Locke

applies equally to his case. See Pet’r Br. at 17-21.

First, the federal government has historically regulated

non-commercial vessels as well as commercial vessels. Peti-

tioner’s amicus the Solicitor General concedes that “[flor

most of the last century, Congress sought to promote the safe

use of motorboats through various statutory requirements.”

Brief for the United States as Amicus Curiae Supporting

Petitioner (“U.S. Br.”) at 1. As early as 1910, Congress

enacted the Motor Boat Regulations Act, 46 U.S.C. § 511 et

seq. The act covered “‘every vessel propelled by machinery

and not more than sixty-five feet in length except tugboats

and towboats propelled by steam.’” Kelly v. Washington, 302

U.S. 1, 5 (1937) (quoting § | of the act). Among its provi-

sions, the 1910 act established safety equipment requirements

for all motor boats covered by the act.'° /d.

Congress expanded the scope of this act in enacting The

Motorboat Act of 1940, 54 Stat. 165, 46 U.S.C. § 526a-t. The

1940 act imposed equipment and design requirements on

motorboats and established penalties for the negligent or

reckless operation of motorboats. H.R. REP. at 37-4]

(reproducing the act). Thereafter, Congress enacted The

Federal Boating Act of 1958, 72 Stat. 1754, 46 U.S.C.

§ 527a-h. The 1958 act created a numbering system for

certain undocumented vessels, amended provisions of the

1940 act concerning the reckless or negligent operation of

motorboats, and otherwise sought to “encourage uniformity

of boating laws, rules, and regulations ... .” H.R. REP. at 46

(reproducing the act).

Most recently, Congress legislated in the field of

recreational boating by passing the FBSA. See supra at 9-11.

Thus, Congress has actively regulated non-commercial

vessels for nearly a century, expanding the scope of its

regulation, as necessary, to address the expansion of

recreational boating. This regulation represents just one

component of Congress’s historical regulation of maritime

commerce, considered more broadly in Ray and Locke.

‘© Addressing the act's preemptive scope, the Kelly Court observed that

“li]f, however, the state goes further and attempts to impose particular

standards as to structure, design, equipment, and operation, which in the

judgment of its authorities may be desirable, but pass beyond what is

plainly essential to safety and seaworthiness, the state will encounter the

principle that such requirements, if imposed at all, must be through the

action of Congress which can establish a uniform rule.” 302 U.S. at 15.

Second, the fact that the FBSA may not affect international

commerce is irrelevant because it directly affects national

maritime commerce. For example, the Coast Guard's regu-

lations govern boats that may be leased, rented, or moored at

commercial marinas. As expressly required by the admiralty

jurisdiction test, recreational boating safety standards may

have a direct effect on commercial shipping as recreational

boating accidents can disrupt a// maritime traffic on busy

waterways, including commercial traffic. Moreover, Con-

gress intended the Coast Guard’s safety standards to apply to

all recreational boats manufactured, sold, or delivered into

interstate commerce. 46 U.S.C. § 4307; see alse supra

note 9. Therefore, the safety standards at issue derive from

the federal government’s historical regulation of maritime

and interstate commerce.

Third, this Court’s own precedents establish that the field

of recreational boating products liability law is not subject to

state police powers. In Foremost, this Court recognized that

admiralty jurisdiction extends to recreational boating acci-

dents. 457 U.S. at 674-77. Subsequently, in East River, this

Court created the field of maritime products law, which

applies equally to recreational and commercial vessels. 476

U.S. at 865. Foremost and East River removed the types of

recreational boating claims at issue in this case from state

police powers to the extent state police powers ever properly

regulated them. If Petitioner is entitled to tort compensation,

he must obtain it under federal law.

Lastly, this case does not involve a situation that Calls for

the balancing of federal and state interests or the

accommodation of state law by federal maritime law. See

Pet’r Br. at 20-21. This case involves, instead, important

national interests. Congress recognized these interests in

applying safety standards under the FBSA to all recreational

boats manufactured or sold into interstate commerce. Where,

as here, Congress acts in an area affecting maritime com-

merce, the national interest in applying federal maritime law

is particularly strong and should prevail. See Robert Force,

Choice of Law in Admiralty Cases: “National Interests” and

the Admiralty Clause, 75 TUL. L. REV. 1421, 1473-75, 1481-

86 (2001) (Force, Choice of Law). Similarly, this Court

recognized the importance of uniformity in the field of

maritime products liability in East River.

B. The FBSA’s Savings Clause Does Not Preserve

Petitioner’s Propeller Guard Claim

The FBSA provides that “[c]ompliance 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). Petitioner con-

tends that this “savings” clause expressly preserves his state

common-law products liability claim. See Pet’r Br. at 28-32.

This reading of § 4311(g) is overly broad and conflicts

markedly with the FBSA and Congress’ stated intent in

enacting it.

In Tallentire, this Court identified the relevant consider-

ations for evaluating the scope of a savings clause in maritime

legislation, such as the FBSA. The Court considered whether

the Death on the High Seas Act (“DOHSA”), 46 U.S.C. 8§

761-68, preempted state-law remedies for wrongful death

where the death occurred on the high seas. Tallentire, 477

U.S. at 209. Under DOHSA’s savings clause, the “provisions

of any State siatute giving or regulating rights of action or

remedies for death shall not be affected ....” 46 U.S.C. §

767. The Court evaluated this savings clause “in light of the

language of the Act as a whole, the legislative history of [the

Savings clause], the congressional purposes underlying the

Act, and the importance of uniformity of admiralty law.”

Tallentire, 477 U.S. at 221.

Unlike here, the “congressional debates [concerning

DOHSA]. . . Were exceedingly confused and often ill

informed.” /d. at 225. Nevertheless, considering the clause’s

language and legislative history as well as Congress’s intent

to establish a uniform remedy, the Court construed DOHSA’s

savings clause as a jurisdictional savings clause and not “an

endorsement of the application of state wrongful death

statutes to the high seas.” /d. at 231-32. The Court character-

ized as “incongruous” “the idea that a Congress seeking

uniformity in maritime law would intend to allow widely

divergent state law wrongful death statutes to be applied on

the high seas.” /d. at 230; see also Locke, 529 U.S. at 107.

Section 4311(g) of the FBSA likewise does not bear

Petitioner’s reading when viewed in light of the Ta‘lentire

considerations. The FBSA’s “Federal preemption” provision

states that:

[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

(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. The FBSA vests the Coast Guard with sole

authority for prescribing safety standards. Id. §§ 4302(a)(1),

4307(a)(1).

These provisions of the FBSA, when evaluated in light of

the legislative history and congressional purposes underlying

the FBSA, preclude reading the savings clause to preserve

Petitioner’s claim. The legislative history of the FBSA

expresses Congress’s intent to preempt the field of boat and

equipment standards in clear and explicit terms:

[Section 4306] 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.

SEN. REP. at 20; see also H.R. Rep. at 11."’

Indeed, the Coast Guard itself testified in favor of federal

preemption in the course of the Senate and House hearings.

Admiral McClelland of the Coast Guard stated that:

Presently, the Federal Government cannot preempt the

boating standards field. It is even possible for States

independently to establish safety standards and

equipment requirements so varied as to make it difficult

for the manufacturer to comply with all of them, and, of

course, for the boatman to comply with the law when he

moves between jurisdictions. [] This legislation will

provide a solution to this problem by providing the

Coast Guard with preemptive authority.

Sen. Hearing at 45. See also id. at 50, 53, 54; H.R. Hearing

at 59, 61, 66.

In contrast, the savings clause, which was not a part of the

original bill, received relatively little attention and was

viewed primarily as a “technical” amendment by _ its

proponents. Sen. Hearing at 88. Regardless, the savings

clause was intended merely to insure that compliance with the

Coast Guard’s standards alone would not insulate a

manufacturer from liability. The Coast Guard understood, for

example, that the FBSA would not relieve a manufacturer

“from liability under the usual tort law concerning negligence

or warranties.” /d. at 66. Construing § 4311(g) more broadly

" Testifying in favor of the act, for example, Representative Monagan

warned of the urgency of this legislation to prevent the “proliferation of

dissimilar [state safety] standards” and observed that “[flederal pre-

emption over any law or regulation which establishes boat or associated

equipment safety standards is imperative now.” H.R. Hearing at 48.

‘would greatly undermine the uniformity of maritime law and

the congressional purposes underlying the FBSA.

Therefore, this Court should read the FBSA’s savings

clause as not preserving Petitioner’s state common-law claim.

Taken to its logical conclusion, Petitioner’s position reduces

to an argument ad absurdum. Petitioner contends that the

FBSA provides no “basis for exempting any defendant from

any common-law liability.” Pet’r Br. at 29. If the FBSA

imposes no limits on common-law actions, then a jury could

hold a manufacturer liable for installing equipment, on a

recreational boat, expressly required by the Coast Guard.

Petitioner’s position would consequently permit juries to

disregard Coast Guard regulations with respect to safety

standards. Congress could not have intended juries to

establish independent safety standards, having generally

denied state legislatures and administrative agencies that

right. Cf. Geier, 529 U.S. at 869 (“Nothing in the language of

the saving clause suggests an intent to save state-law tort

actions that conflict with federal regulations.”’).

Reading § 4306 to preempt Petitioner's propeller guard

claim, on the other hand, does not produce similarly absurd

results. Indeed, it is more reasonable to view the savings

clause as simply ensuring that mere compliance with Coast

Guard regulations does not relieve an operator or manu-

facturer from all liability. See Sen. Hearing at 66. Such an

interpretation does the least violence to the statutory language

and congressional purposes underlying the FBSA while not

depriving a plaintiff of a remedy. For example, even if a

plaintiff could not bring a propeller guard claim, he could still

sue the operator for negligent operation of the boat. A plain-

tiff could also sue a manufacturer for improperly manufac-

turing or installing safety equipment. Thus, even if § 4306

preempted Petitioner's propeller guard claim, § 4311(g)

would still save “some significant number of common-law

liability cases” for victims of recreational boating accidents.

Geier, 529 U.S. at 868.

The fact that, here, the Coast Guard affirmatively decided

not to promulgate a regulation, as opposed to issuing one,

does not preclude affirmance. In Ray, this Court reaffirmed

that states may not regulate “where 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.” 435 U.S. at

178 (quotation & citations omitted). The Ray Court con-

sidered, inter alia, whether Washington could ban oil tankers

larger than 125,000 DWT from Puget Sound where the Coast

Guard had not. /d. at 173-78.

The Court recognized that the Coast Guard was authorized

to issue such a ban under the Ports and Waterways Safety

Act. /d. at 174. The Coast Guard had not, however, prom-

ulgated any regulation setting a maximum size limit for

vessels. Nevertheless, this Court concluded that the Coast

Guard had sufficiently addressed the size limitation question

by issuing a traffic-control system prohibiting the passage of

more than one 70,000 DWT vessel through Rosario Strait at a

time and reducing this size limitation during bad weather. /d.

174-78. The Coast Guard’s affirmative decision not to

promulgate a propeller guard requirement, having studied the

issue for more than a year, must likewise constitute a

sufficient exercise of authority to preclude juries from impos-

ing such a duty on manufacturers.

Lastly, ATLA’s contention that the FBSA does not

preempt Petitioner’s propeller guard claim because it arises

under the general maritime law, and not state law, is no more

persuasive. ATLA Br. at 28. ATLA fails to consider the

FBSA and the Coast Guard’s affirmative decision not to

require propeller guards on all motors in analyzing the scope

of maritime products liability law. As discussed previously,

this legislative and administrative history plays an integral

role in defining the general maritime law. See supra at K(C).

Even if the general maritime law would have recognized

Petitioner’s propeller guard claim in the absence of federal

morn"

——— ee wa

legislation, the FBSA and the Coast Guard's regulatory

activity plainly displaced such a federal common-law claim.

City of Milwaukee v. Illinois, 451 U.S. 304, 313-17 (1981).

lll. THE FBSA AND GENERAL MARITIME LAW

REQUIRE UNIFORM SAFETY STANDARDS

FOR RECREATIONAL BOATS AND, THUS,

BAR PETITIONER’S PROPELLER GUARD

CLAIM.

Whether the Court treats this case as presenting a question

of federal maritime law or statutory preemption, the Court

should be guided by the interests of uniformity. This case lies

at the intersection of two important policies of uniformity:

Congress’s interest in having the FBSA provide uniform

safety standards for all recreational boats and federal

maritime law’s traditional interest in uniformity. Ultimately,

both of these interests reflect a national interest in uniform

safety standards that protect recreational boaters and provide

predictability for manufacturers. In this context, the MLA

espouses uniformity not for its own sake but because It serves

these important national interests.

A. Congress Intended the FBSA to Provide

Uniform Federal Safety Standards for Recre-

ational Boats and Associated Equipment.

That Congress intended the FBSA to establish uniform

national safety standards for recreational boats and associated

equipment cannot be doubted. Congress viewed the FBSA as

creating a “comprehensive piece of legislation” designed to

avoid “piecemeal changes in the Federal statutes relating to

boats and boating safety.” H.R. Rep. at 10. To effectuate its

desire for uniform standards, Congress ensured that

recreational boats would “be built in accordance with the

standards prescribed by one Federal agency”—the Coast

Guard. /d. at 2. The Coast Guard itself recognized that the

FBSA’s “Federal preemptive measures [were] necessary to

assure uniformity of safety standards.” Sen. Hearing at 53.

The FBSA was a response to a practical need for

uniformity identified by Congress:

Unless the Federal Government establishes a uniform

minimum safe-boating program, the lack of uniformity

between States will pose an increasing burden on the

boating public. The mobility of trailered boats, and

contiguity of some waters to several States now present

serious problems to law-abiding recreational boaters.

H.R. Rep. at 29; see also Sen. Hearing at 70 (same); H.R.

Hearing at 98 (same). Congress understood that uniform

standards were necessary because recreational boat manu-

facturers sold their products throughout the country and the

inherently mobile nature of recreational boats meant that aa

owner might operate his boat in different states. See H.R.

Hearing at 36 (“The extent of Federal involvement continues

to be found in the need for uniformity of law and regulation

for a transient boating public as well as in the existing Federal

capability.”). For these same reasons, Congress extended the

FBSA’s regulation of safety standards to all recreational boats

manufactured or sold into interstate commerce. See 46

U.S.C. § 4307(a); SEN. REP. at 14.

Congress was not unmindful, however, that recreational

boats operate most often in state waters. Congress expressly

permitted states, with the Coast Guard's approval, to regulate

“the carrying or use of marine safety articles to meet uniquely

hazardous conditions or circumstances within the State.” 46

U.S.C. § 4306 (emphasis added). This exemption from

federal preemption was meant to disrupt national uniformity

to the least extent possible. The FBSA reserved the right of

disapproval to the Coast Guard “to insure that indiscriminate

use of state authority does not seriously impinge on the basic

need for uniformity.” SEN. REP. at 20; see also H.R. REP. at

16 (same).'* This case involves no such local interest as no

Congress reaffirmed its commitment to federal preemption and the

establishment of uniform national safety standards when it later recodified

party has suggested that propeller guards are necessary to

meet uniquely hazardous /ocal conditions.

B. Congress’s Policy of Uniformity Reflects the

Historical Importance of Uniformity in the

Field of Maritime Law.

The centrality of uniformity in the maritime law of this

country originates in the Admiralty Clause of the

Constitution. See U.S. Const. art. Ill, § 2. The Framers’

decision to place maritime matters under national control was

not an “idle one.” Lizabeth L. Burrell, Application of State

Law to Maritime Claims: Is There a Better Guide Than

Southern Pacific Co. v. Jensen?, 21 Tut. MAR. LJ. 53, 54

(1996). Rather, the Framers created admiralty jurisdiction, at

least in part, to establish a uniform maritime law. Robert

Force, Deconstructing Jensen: Admiralty and Federalism in

the Twenty-First Century, 32 J. MAR. LAW & COMM. 517, 547

(2001) (Force, Deconstructing Jensen), David P. Currie,

Federalism and Admiralty: “The Devil's Own Mess.” 1960

Sup. CT. REV. 158, 163.

The principal of uniformity in maritime law has also been

recognized by this Court. For example, in Jackson v. The

Steamship Magnolia, 61 U.S. 296 (1857), the Court extended

the reach of admiralty jurisdiction beyond the tidal waters to

the inland waters of the country. In The Lottawanna, 88 U.S.

(21 Wall.) 558, 575 (1874), this Court found it “unques-

tionable” that “the Constitution must have referred to a.

system of [maritime] law coextensive with, and operating

uniformly in, the whole country.” Subsequently, in Southern

Pacific Co. v. Jensen, 244 U.S. 205, 216 (1916), the Court

held that state legislation was invalid “if it contravenes the

essential purpose expressed by an act of Congress, or works

material prejudice to the characteristic features of the general

the FBSA. See H.R. REP. No. 98-388, 98th Cong., Ist Sess. 160 (1983),

reprinted in 1983 U.S.C.C.A.N. 924, 972.

maritime law, or interferes with the proper harmony and

uniformity of that law in its international and interstate

relations.” This Court has continued to recognize that, in

certain cases, “vindication of maritime policies demanded

uniform adherence to a federal rule of decision, with no

leeway for variation or supplementation by state law.”

Calhoun, 516 U.S. at 210 (citing cases).

While the Court’s holding in Jensen has been questioned,

uniformity remains “particularly important in the maritime

arena.” Force, Common Law at 1380. Non-uniformity

invites inconsistent results capable of subverting — the

“traditional commercial maritime interests’ need for

decisional stability.” Michael F. Vitt, Stemming the Tide:

Uniformity in Admiralty Law, 28 U. BALT. L. REV. 423, 444

(1999) (“Vitt, Stemming the Tide”). “National rules in the

form of the general maritime law may be necessary to subject

an industry to a single standard when the imposition of

multiple standards would make it commercially burdensome

for maritime commerce to operate efficiently.” Force,

National Interests at 1482.

—_

These principles are particularly germane to Petitioner's

claim. As Congress recognized in enacting the FBSA,

uniform national rules for recreational boat and equipment

design and construction are essential. Manufacturers cannot

be subjected to different safety standards in each of the fifty

states. Petitioner’s contention that juries throughout the

country should be permitted to set their own safety standards

for boat motors would result in “precisely the sort of

Balkanization of interstate commercial activity which the

Constitution was intended to prevent.” Douglas v. Seacoast

Prods., Inc., 431 U.S. 265, 286 (1977).

a cy

C. This Court’s Holdings in Foremost and

East River Underscore the Importance of

Uniformity in the Present Case.

This Court’s holdings in Foremost and East River also

recognize the importance of uniformity to the present case.

Foremost held that admiralty jurisdiction extends to

recreational boating accidents and thereby applied substantive

admiralty law to recreational boating cases. The Court

premised its holding, in part, on “the need for uniform rules

to govern conduct and liability.” Foremost, 457 U.S. at 674;

see also id. at 677. In East River, the Court created a body of

maritime products liability law applicable to all vessels

within admiralty jurisdiction—non-commercial as well as

commercial vessels. See supra at 7-8.

The Court’s holding in Calhoun is not to the contrary.

First, unlike Calhoun, this case implicates an act of

Congress—the FBSA. Calhoun, which addressed the

damages available for the death of a nonseafarer in state

territorial waters, fell outside of the Jones Act and DOHSA.

516 U.S. at 215. Where Congress enacts comprehensive

legislation, such as the FBSA, this Court has held that courts

must defer to “the limits imposed by Congress.” Miles, 498

US. at 27; accord Higginbotham, 436 U.S. at 623-24.

Second, Calhoun involved a question of remedies, not

safety standards or liability. Congress intended the FBSA

and the Coast Guard's regulations to establish uniform

national safety standards. Petitioner seeks, however, to

permit juries in every state to create their own standards, that

is, to impose diverse duties upon the manufacturers of

recreational boat motors. It is simply inconceivable that

Congress, having sought to ensure uniformity in safety

standards, could have intended to allow state juries to

disregard the considered judgment of the Coast Guard in

establishing their own divergent standards. Cf. Tallentire,

477 U.S. at 230-31.

D. Petitioner’s Claim Undermines the National

Interest in Uniform Federal Safety Standards

as Prescribed by the FBSA and General

Maritime Law.

The MLA does not propose that this Court endorse a

uniform rule simply for the sake of uniformity. Rather,

uniformity is critical here because this case involves impor-

tant national interests and practical concerns. The approach

Petitioner espouses would result in jury chaos, undermining

the congressional purposes underlying the FBSA and the

general maritime law.

The importance of uniformity is greatest where, as in this

case, the development and/or enforcement of a uniform rule

would promote a national interest underlying the Admiralty

Clause. See Force, Deconstructing Jensen at 546-47. Here,

Congress has supplied the national interest in uniformity in

enacting the FBSA. See id. at 547-48 (“When Congress

legislates in the maritime area, the national interest is

determined by the objectives of the legislation.”). In the

FBSA, Congress created a mechanism for the establishment

of uniform national safety standards for recreational boats and

associated equipment to be promulgated by the Coast Guard.

Relying upon its Commerce Clause powers, Congress also

extended this regulatory authority to all recreational boats and

associated equipment in interstate commerce.'”

Petitioner’s amici the States are, therefore, wrong when they suggest

that maritime commentators would view propeller guard claims as

necessarily subject to state common law. States Br. at 15. For example,

Professor Young does not question the ability of Congress to enact

“maritime legislation” and preempt state law under its Commerce Clause

powers as it did with the FBSA. See Ernest A. Young, The Last Brooding

Omnipresence: Erie Railroad v. Tompkins and the Unconstitionality of

Preemptive Federal Maritime Law, 43 St. Louis U. LJ. 1349, 1364

(1999). Professor Young recognizes, moreover, that uniformity, where

necessary in maritime law, may be achieved, as in other areas of law,

through “first, Congress’s power to impose uniformity by statute, and,

——-- 3 re

The practical need for uniformity underscores the impor-

tance of these national interests and evidences why Congress

enacted the FBSA. Initially, recreational boat and equipment

manufacturers require national construction and design

standards because they design and manufacture boats, motors,

and other products for sale throughout the country. Manu-

facturers need uniformity so that they can design their

products to meet the applicable standards and not be subject

to conflicting standards throughout the country.”’ H.R.

Hearing at 373. Indeed, during the FBSA hearings, the Coast

Guard testified that state enactment of diverse safety stand-

ards was “both a real and potential” problem. /d. at 67.

In addition, as the facts of this case reveal, the inherently

mobile nature of boats necessitates uniformity. Here, the boat

owner was a resident of Illinois, who appears to have

purchased the boat and motor at issue in Illinois. J.A. 106.

The accident occurred, however, while the boat was being

operated on the Dale Hollow Lake in Tennessee. J.A. 107.

Even if the manufacturer knew that a motor would be sold

in Illinois, it could not guarantee that it would be used there.

Consequently, if juries in Illinois and Tennessee were left to

establish their own common-law standards for propeller

guards, a manufacturer, might be held to different standards

depending upon the state in which it was sued, for example, if

Illinois juries found that the failure to install a propeller guard

rendered the motor defective but Tennessee juries found that

the installation of a propeller guard rendered the motor

second, the Constitution’s prohibition on measures that discriminate

against or unduly burden commerce between the states or with other

nations.” Ermest A. Young. Preemption at Sea, 67 GEO. WASH. L. REV.

273, 349 (1999).

° “The reason for such a preemption is to insure that manufacturers

building for the entire domestic trade will not find themselves in the

unfortunate position of having to comply with varying boat safety

standards in different places.” H.R. Hearing at 37.

defective. Under Petitioner’s argument, two juries in the

same state could even reach conflicting views.

Under the. FBSA, state legislatures would be powerless to

correct inconsistent or erroneous jury verdicts. See U.S. Br.

at 11. Such non-uniformity prevents a manufacturer from

knowing what standards apply to its product, a situation the

FBSA was clearly cesigned to avoid. Congress could not

have intended to permit juries to disregard the considered and

expert determination of the Coast Guard that propeller guards

did not “contribute to recreational vessel safety” especially

where it preempted the states and their administrative

agencies from doing so. 46 U.S.C. § 4302(c)(1).

This case demonstrates yet another practical problem,

requiring uniformity. The lake on which the accident

occurred, Dale Hollow Lake, is an interstate lake located in

both Tennessee and Kentucky. Recreational boating takes

place, in fact, on numerous interstate waters throughout the

country, including the Potomac River (District of Columbia,

Virginia, and Maryland), Long Island Sound (New York,

Connecticut, and Rhode Island), Lake Tahoe (California and

Nevada), and Lake Powell (Utah and Arizona). Recreational

boaters also use rivers that run through a number of states,

such as the Mississippi, Snake, and Colorado.

Therefore, a recreational boater can be in one state at one

moment and another state the next. Without uniform

standards, a manufacturer’s liability would rest solely on the

fortuity of where in the course of an afternoon’s outing an _

accident occurred. As this Court reasoned in Tallentire, it

Strains reason to suggest that Congress intended to permit

such divergent results in seeking uniform safety standards

through the FBSA. See 477 U.S. at 230.

CONCLUSION

This Court should affirm the judgment of the Supreme

Court of Illinois and preserve the uniformity of maritime law.

—_— — ——— ee ee ———

Of Counsel:

SHER GARNER CAHILL

RICHTER KLEIN MCALISTER

& HILBERT, L.L.C.

HILL RIVKINS & HAYDEN, LLP

May 20, 2002

Respectfully submitted,

JOSHUA S. FORCE

Counsel of Record

RAYMOND P. HAYDEN

WILLIAM R. Dorsey, Ill

JAMES PATRICK COONEY

DONALD C. GREENMAN

909 Poydras Street, 28th Floor

New Orleans, Louisiana 70112

(504) 299-2100

Counsel for The Maritime Law

Association of the United States

as Amicus Curiae

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