No. 01-706
__________________________________________________
IN THE
Supreme Court of the United States
Rex R. Sprietsma, Adm’r of the Estate of
Jeanne Sprietsma, Deceased,
Petitioner,
v.
Mercury Marine, a Division
of Brunswick Corporation,
Respondent.
On Writ of Certiorari to the
Supreme Court of Illinois
REPLY BRIEF FOR PETITIONER
Arthur H. Bryant
Trial Lawyers for Public
Justice, P.C.
One Kaiser Plaza, Suite 275
Oakland, CA 94612
(510) 622-8150
Joseph A. Power, Jr.
Todd A. Smith
Devon C. Bruce
Power, Rogers & Smith, P.C.
35 West Wacker Drive,
Suite 3700
Chicago, IL 60601
(312) 236-9381
Leslie A. Brueckner
(Counsel of Record)
Michael J. Quirk
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Avenue,
N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600
John B. Kralovec
Kralovec, Jambois & Schwartz
120 North LaSalle Street
Suite 2500
Chicago, IL 60602
(312) 782-2525
_________________________________________________
TABLE OF CONTENTS
Page
I. Petitioner’s Claims Are Not Expressly Preempted
II. Petitioner’s Claims Are Not Impliedly Preempted
III. Respondent’s Maritime-Law Argument Is Waived
And Lacks Merit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Cases: Page:
American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995). . . 13
Choate v. Champion Home Builders Co., 222 F.3d 788
(10th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Cipollone v. Liggett Group, Inc., 505 U.S. 504
(1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 4, 8
Dooley v. Korean Airlines Co., Ltd., 534 U.S. 116
(1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
Finneseth v. Carter, 712 F.2d 1041 (6th Cir. 1983). . . . . . .17
Foremost Ins. Co. v. Richardson, 457 U.S. 668
(1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995)
Federal Trade Comm’n v. Grolier, 462 U.S. 19 (1983)
Geier v. American Honda Motor Co., Inc.,
529 U.S. 861 (2000)
General Chemical Corp. v. De la Lastra,
852 S.W.2d 916 (1993)
Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988)
Grubart, Inc. v. Great Lakes Dredge & Dock,
513 U.S. 532 (1995)
Gryc v. Dayton Hudson Corp., 297 N.W.2d 727
(Minn. 1980)
Heckler v. Campbell, 461 U.S. 458 (1983)
Kentucky v. Stincer, 482 U.S. 730 (1987)
Leipart v. Guardian Industries, Inc., 234 F.3d 1063
(9th Cir. 2000)
Lewis v. Brunswick, Case No. 97-288, cert. dismissed,
523 U.S. 1113 (1998)
Livingston v. United States, 627 F.2d 165
(8th Cir. 1980)
McGoldrick v. Companie Generale Transatlantique,
309 U.S. 430 (1940)
Medtronic v. Lohr, 518 U.S. 470 (1996)
Michigan v. Tyler, 436 U.S. 499 (1978)
Milwaukee v. Illinois & Michigan, 451 U.S. 304 (1981)
Mobile Oil Co. v. Higgenbotham, 436 U.S. 618 (1978)
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207
(1986)
People v. Franklin, 504 N.E.2d 80 (Ill. 1987)
Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)
Roberts v. Galen of Va., Inc., 525 U.S. 249 (1999)
Silkwood v. Kerr-McGee Corp., 464 U.S. 238
(1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 7, 8, 9
Sisson v. Ruby, 497 U.S. 358 (1990)
South Central Bell Telephone Co. v. Alabama,
526 U.S. 160 (1999)
Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917)
Steagald v. United States, 451 U.S. 204 (1981)
TRW Inc. v. Alexander, 122 S. Ct. 441 (2001)
United States v. Locke, 529 U.S. 89 (2000)
Yamaha Motor Corp. v. Calhoun, 516 U.S. 199
(1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19
Statutes:
Flammable Fabrics Act, 15 U.S.C. § 1193. . . . . . . . . . . . . . .9
National Traffic and Motor Vehicle Safety Act,
15 U.S.C. §§ 1381-1431. . . . . . . . . . . . . . . . . . . . .4, 5, 8, 9
Consumer Product Safety Act, 15 U.S.C. §§ 2506-08. . . . . . 9
National Manufactured Housing Construction
and Safety Standards Act, 42 U.S.C. § 5403. . . . . . . . . . . 9
Federal Boat Safety Act, 46 U.S.C. §§ 4301-4311. . . . passim
46 U.S.C. § 4302. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
46 U.S.C. § 4306. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3-7
46 U.S.C. § 4311(g). . . . . . . . . . . . . . . . . . . . . . . . . . . .3-7, 19
Legislative History:
S. Rep. No. 248, 92d Cong., 1st Sess. (1971),
reprinted in 1971 U.S.C.C.A.N. 1333. . . . . . . . . . . . . . 4-6
Miscellaneous:
Brief for the United States as Amicus Curiae in
Lewis v. Brunswick Corp., No. 97-288
(October Term 1997), cert. granted, 522 U.S. 978
(1997), cert. dismissed, 523 U.S. 1113 (1998). . . . . . . . . .1
David W. Robertson, Admiralty and Maritime Litigation
in State Court, 55 La. L. Rev. 685 (1995)
David W. Robertson, The Applicability of State Law in
Maritime Cases After Yamaha Motor Corp. v.
Calhoun, 21 Tul. Mar. L. J. 81 (1996)
Ernest A. Young, Preemption at Sea,
67 Geo. Wash. L. Rev. 273 (1999). . . . . . . . . . . . . . . . . .19
Minutes of 67th Meeting of the National Boating
Safety Advisory Council (April 23-24, 2001)
R. Stern, E. Gressman, S. Shapiro & K. Geller,
Supreme Court Practice § 3.20 (7th ed. 1993)
Robert Force, Deconstructing Jensen: Admiralty and
Federalism in the Twenty-First Century,
32 J. Mar. L. & Com. 517 (2001). . . . . . . . . . . . . . . . 18-19
ARGUMENT
In what can only be viewed as a desperate attempt to avoid an adverse ruling on the state-law preemption question presented in this case, Mercury Marine begins its brief with an entirely new argument that was never presented to the lower courts and never raised in its Opposition to the Petition for Certiorari: that this case is governed by federal admiralty law and that petitioner’s claims are “statutorily displaced” by the Boat Safety Act. See Br. 7-28. Not only did Mercury Marine fail to raise this argument below and in its Opposition, but it affirmatively argued that petitioner’s claims are governed by Illinois state law. As we explain in section III below, this new argument has been waived and, in any event, it lacks merit. This Court should not entertain respondent’s attempt to evade resolution of a preemption question on which this Court has already twice granted review. See Lewis v. Brunswick, Case No. 97-288, cert. dismissed, 523 U.S. 1113 (1998) (case settled after oral argument before any decision was rendered).
At bottom, respondent’s strategic decision to rely on a waived issue dramatically underscores the weakness of its arguments regarding the preemption question on which this Court granted review. As we explained in our opening brief, any question of express preemption in this case was effectively resolved by Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 868 (2000), which construed a savings clause similar to the one at issue here as expressly preserving common-law claims. See Pet. Br. 28-33. And any question of implied conflict preemption is laid to rest by the fact that the U.S. Coast Guard has not taken any regulatory action with respect to propeller guards – a conclusion that is supported by the United States’ position, both here and in Lewis, that common-law no-propeller-guard claims do not conflict with any federal purposes. Respondent and its amici struggle mightily to salvage a preemption defense from the ashes of these developments, but their attempts fail at every juncture.
I. Petitioner’s Claims Are Not Expressly Preempted.
A. Respondent’s main theme regarding express preemption – and, indeed, throughout its entire brief – is that, because the Boat Safety Act expressly preempts the entire field of state positive law even in areas where the Coast Guard has not taken any regulatory action, Congress cannot possibly have intended to preserve common-law claims such as petitioner’s. Any such approach, in respondent’s view, would be both “absurd” and “incoherent.” See Br. 41, 49.
Respondent’s argument fails on two counts. First, the Act
itself does not support Mercury Marine’s field preemption
theory, as it merely grants the Coast Guard permissive authority
to promulgate minimum safety standards. See 46 U.S.C. §
4302.
Second, even if the Act preempts the field of state
positive law, it is far from “absurd” for Congress to have
chosen to preserve the rights of injury victims to sue at common
law. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256
(1984) (common-law tort claims yielding jury verdict of over
$10 million in compensatory and punitive damages permitted
to stand despite Congress’ occupation of entire field of nuclear
safety). As this Court held in Silkwood, although there may be
some “tension” between preemption of state positive law and
preservation of common-law claims, Congress’ decision to
adopt such an approach must be respected. Id.
B. The Boat Safety Act makes clear, moreover, that this is
precisely the approach adopted by Congress with respect to
recreational boats. The Act’s express preemption clause
contains no reference to common-law claims; instead, it merely
preempts state “law[s] or regulation[s]” that are not identical to
federal regulations. 46 U.S.C. § 4306. Mercury Marine’s
principal response is that Section 4306 also contains language
– particularly the word “requirement” – that this Court has held
encompasses common-law claims. Br. 30-32. This argument
fails, however, because the Act does not preempt
“requirements” at all; rather, it preempts a “law or regulation
. . . imposing a requirement for associated equipment . . ..” 46
U.S.C. § 4306 (emphasis added). Thus, the word “requirement”
in the Boat Safety Act is merely used to describe the type of
“law or regulation” that is preempted by federal law – it is not,
as in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), and
in Medtronic v. Lohr, 518 U.S. 470 (1996), intended to
designate an entirely separate category that is subject to
preemption.
C. This interpretation of Section 4306 is confirmed by the Act’s savings clause, which provides that “compliance with this chapter . . . does not relieve a person from liability at common law or under State law.” 46 U.S.C. § 4311(g) (emphasis added). In Geier, 529 U.S. at 868, this Court construed a similar savings clause in the National Traffic and Motor Vehicle Safety Act (the “MVSA”) as expressly preserving common-law claims. Since Geier, no court – including the court below – has held that the Boat Safety Act expressly preempts common-law claims. See Pet. Br. 21.
Respondent’s main argument is that Geier’s express-preemption holding does not apply here because the Boat Safety
Act’s savings clause refers to “State law” as well as common
law – a reference that, in Mercury Marine’s view, would render
Section 4306 a nullity if it were afforded the meaning given by
petitioner. Br. 37. This argument, however, rests on a single,
incongruous proposition: that because the Act’s savings clause
is broader than that at issue in Geier, it should be construed
more narrowly. In addition, contrary to respondent’s claim, the
Act does not contain a reference to the entire body of state law.
Rather, it speaks of the circumstances under which “a person”
would be “relieve[d]” of “liability at common law or under
State law,” which clearly refers to forms of damages liability,
whether pursuant to common law or statute (e.g., state product
liability statutes or wrongful death statutes).
Because the
reference to “State law” in the savings clause merely refers to
damages liability imposed via statute, state positive-law
standards are still subject to preemption under Section 4306.
In fact, it is respondent’s interpretation of Section 4306 that
would effectively “repeal” the savings clause. According to the
Senate Report, the savings clause was intended to clarify that
“in a product liability suit mere compliance with the minimum
standards promulgated under the Act will not be a complete
defense to liability.” 1991 U.S.C.C.A.N. at 1352. Under
Mercury Marine’s “field preemption” reading of Section 4306,
however, the states would retain almost no power to impose any
liability on boat manufacturers, since all state law that is “not
identical” to a preexisting federal standard would be wiped out
by direct operation of Section 4306. In this scenario, there
would be no need for manufacturers to assert regulatory
compliance as an affirmative defense under state law, because
any common-law claims relating to recreational boat design
would already be extinguished by the Act’s preemption clause.
Thus, Mercury Marine’s reading of the statute would render the
savings clause largely meaningless – an approach this Court has
disavowed. See Geier, 528 U.S. at 868.
Respondent attempts to salvage its interpretation of Section
4311(g) by arguing that it preserves a “subset of state law and
common law” that is not otherwise preempted by direct
operation of Section 4306 – i.e., claims concerning breach of
contractual warranties, negligent boat operation, and defective
manufacture and installation of marine products. Br. 39-40.
This argument, however, finds no support in the text of the
savings clause, which does not distinguish between any forms
of liability. It is also contrary to the Act’s legislative history,
which shows that Congress enacted the savings clause to
preserve victims’ rights to bring “product liability suits,” one
primary form of which is design-defect claims. See S. Rep.,
1991 U.S.C.C.A.N. at 1352.
Finally, respondent’s argument
fails to resurrect any meaningful role for the savings clause,
because no reasonable defendant would attempt to rely on its
compliance with federal standards governing boat design as an
absolute defense in lawsuits – such as those alleging breach of
warranties, negligent boat operation, or negligent installation of
a properly designed product – that have little or nothing to do
with the design features of the boat in question.
Mercury Marine also argues (Br. 41) that the savings clause cannot mean what it says because, if it did, State legislatures would be powerless to overturn a jury verdict holding a manufacturer liable for not installing propeller guards – an “absurd result,” in respondent’s view. However, a state law that eliminated a tort cause of action in the boat safety area would not have the effect of “establishing a recreational vessel . . . safety standard or imposing a requirement for associated equipment,” and thus would not be preempted by Section 4306. Thus, contrary to respondent’s claim, nothing in the Act would stop a State from passing a law that boat manufacturers cannot be held liable for failing to install a propeller guard. And even if it did, a statutory scheme that preempts state legislation while preserving the ability of juries to compensate injury victims is anything but “absurd,” especially where the governing statute would otherwise leave victims without any remedy at all. See Silkwood, 464 U.S. at 251 (“[i]t is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct”).
II. Petitioner’s Claims Are Not Impliedly Preempted.
A. Respondent’s main theme with regard to implied
preemption is that all common-law claims – not just those
involving propeller guards – necessarily conflict with
Congress’s goal of achieving “uniformity” with respect to
recreational boat design standards. Br. 42-43. This argument,
however, is negated by the express terms of the Boat Safety Act
itself. As explained above, uniform safety standards may be the
goal of Section 4306, but preservation of common-law claims
is the goal of Section 4311(g). Congress adopted both sections.
Its express preservation of common-law claims must be
respected.
Respondent nonetheless insists that common-law claims are
preempted because they exert a “regulatory effect” identical to
that of state positive law. Br. 44. The effects of common-law
tort liability and direct state regulation, however, are far from
identical. The principle purpose of a “law or regulation
establishing a . . . safety standard or imposing a requirement for
associated equipment” is to mandate conduct: a violator of a
state regulatory requirement is subject to liability per se, to
administrative remedies, or even to criminal penalties, and can
often be forced to remove noncomplying products from the
market. Imposition of tort liability, in contrast, does not force
a manufacturer to do anything other than pay damages to its
victims. Thus, as this Court has previously recognized, “[t]he
effects of direct regulation . . . are significantly more intrusive
than the incidental regulatory effects of such an award
provision, [and] Congress may reasonably determine that
incidental regulatory pressure is acceptable, whereas direct
regulatory authority is not.” Goodyear Atomic Corp. v. Miller,
486 U.S. 174, 185-86 (1988) (emphasis added).
Despite this authority, respondent argues that Congress
cannot have intended – and the Supremacy Clause does not
permit – manufacturers to be subject to “widely varying local
requirements” with regard to recreational boat design. Br. 43.
But this is precisely the outcome that is permitted by numerous
statutes, including (for example) the MVSA, which this Court
has held does not preempt any forms of state law in areas where
the federal government has not regulated. See Freightliner
Corp. v. Myrick, 514 U.S. 280, 286, 289-90 (1995). Even when
a federal safety standard is in effect, moreover, common-law
claims are permitted to go forward so long as the federal
standard is merely intended to create a regulatory floor. See
Geier, 529 U.S. at 870. There is no logical basis for assuming
(as does respondent) that choices Congress made with respect
to motor vehicles, which are sold nationwide and are routinely
used in interstate commerce, cannot possibly have made sense
in the case of recreational boats.
B. Nor is there any merit to respondent’s claim that this lawsuit
would conflict with or frustrate the Coast Guard’s purposes.
See Br. 47-50.
As previously explained, this argument fails
for two reasons: (1) the Coast Guard has never promulgated any
regulations with regard to propeller guards; and (2) the Coast
Guard has never concluded that propeller guards are contrary to
the interests of boat safety. Pet. Br. 38-41; U.S. Br. 15-30.
1. In response, Mercury Marine does not deny that the
agency’s rulemaking authority is limited to the promulgation of
actual safety standards according to the formal rulemaking
procedures of the Boat Safety Act. Nor does it deny that, as a
matter of basic administrative law, informal agency decisions
lack the force and effect of substantive law. See Pet. Br. 37;
U.S. Br. 22-26. Rather, it argues that, because the Act preempts
the field of state positive law even in cases where the Coast
Guard has not regulated, no formal rulemaking is required
impliedly to preempt common-law claims like petitioner’s. Br.
48. But here again, respondent’s argument improperly conflates
the Act’s effect on state positive law with its effect on common-law claims. As explained above, whether or not Congress
preempted the field of state positive law, it expressly excluded
common-law claims from any preempted field. That being so,
common-law claims must be permitted to go forward unless
they conflict with or undermine federal purposes. Geier, 429
U.S. at 875. And, because the Coast Guard chose not to follow
the rulemaking procedures mandated by the Act, there is no
valid expression of federal “purposes” with which petitioner’s
claims could possibly conflict. See U.S. Br. 22-26.
2. Moreover, contrary to Mercury Marine’s contention, the
Coast Guard did not conclude that propeller guards are
dangerous. The Coast Guard Letter does not mention the
supposed hazards of propeller guards; to the contrary, it appears
affirmatively to encourage their continued testing and use. See
Pet. Br. 39-41. Nor does the letter contain any indication of any
intention on the part of the agency to preempt common-law
claims regarding unguarded boat propellers.
And, since 1990
(when the letter was written), the agency has continued to study
the possible use of propeller guards in recreational vessels to
help prevent propeller-strike accidents. See Pet. Br. 11.
Mercury Marine’s response (Br. 49) is that, because the Coast Guard Letter “closely tracked the [Advisory Committee’s] findings,” the Coast Guard necessarily must have endorsed all the factual conclusions of the Subcommittee Report. This argument, however, lacks any basis in fact. The only factual finding repeated in the Coast Guard Letter is the Subcommittee’s observation that there is no “universally acceptable propeller guard available or technically feasible in all modes of boat operation.” See J.A. 80. There is no mention of any of the Subcommittee’s statements regarding the alleged dangers of propeller guards. Thus, as the United States explains, “nothing in the [Coast Guard L]etter expressly endorsed [the Subcommittee’s] findings or incorporates them by reference.” U.S. Br. 29. Against this backdrop, it is impossible to discern the type of “clear evidence of a conflict” that must form the basis of any implied preemption ruling. Geier, 529 U.S. at 885.
3. Because there is no factual basis for concluding that the Coast Guard intended to preempt claims like petitioner’s, respondent relies on Ray v. Atlantic Richfield Co., 435 U.S 151 (1978), for the proposition that the Coast Guard’s affirmative decision not to require propeller guards exerts preemptive force. See Br. 48. Ray, however, has no bearing on this case, because the agency there had in fact issued comprehensive regulations regarding the subject matter at issue. See 435 U.S. at 178; see also Pet. Br. 43-44; U.S. Br. 20-22 (distinguishing Ray). Respondent’s theory, moreover, paints with an overly broad brush, as it would accord preemptive effect to any agency decision to study, but ultimately take no regulatory action with respect to, a particular safety device – even where, as here, the agency has never found the device to be dangerous and never given any indication of an intent to preempt state common-law claims. That cannot and should not be the law.
This conclusion is underscored by the fact that the federal government has twice taken the position, both here and in Lewis, that no-propeller-guard claims like petitioner’s do not conflict with any federal purposes. This Court has recognized that the United States’ position on the preemptive effect of agency actions is entitled to at least “some weight.” Geier, 529 U.S. at 883; see also id. at 886 (United States’ position in amicus brief that federal regulation preempts common-law claims accorded “special weight”). This approach is especially appropriate here because, not only has the United States’ position remained “consistent[ ] over time,” Geier, 529 U.S. at 883, but the Coast Guard is ceding authority to the States, not trying to claim power for itself. See, e.g., American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995) (adopting United States’ position that breach-of-contract claims are not preempted by Airline Deregulation Act of 1978). Thus, this Court should accord the United States’ position the “special weight” it deserves.
III. Respondent’s Maritime-Law Argument Is Waived And Lacks Merit.
Finally, at the outset of its brief, respondent devotes nearly one-third of its entire argument to a new issue that was never raised below, was not mentioned in its Opposition to the Petition, and directly contradicts its position in the lower courts: that this case is within federal admiralty jurisdiction and that “federal maritime law cannot possibly be read to impose a federal duty to install propeller guards on motor boats.” Br. 19. This argument has been waived and, in any event, lacks merit.
A. Before filing its merits brief in this case, respondent never
once suggested that this case is governed by federal maritime
law. In fact, it took the exact opposite position before the
Illinois Supreme Court, arguing (for over 25 pages of its merits
brief) that the Court did not need to reach the preemption
question because Mr. Sprietsma’s claims lack merit as a matter
of substantive Illinois tort law.
Respondent took the same
tack in its Opposition to the Petition for Certiorari, arguing that
the preemption issue is not worthy of review because
petitioner’s claims would fail under state law. See Opp. 26-27.
Despite this consistent litigating position, respondent has made
a 180-degree turn and now urges this Court to find that, in fact,
this case is subject to admiralty jurisdiction and that petitioner’s
federal common-law claims are “displaced” by the Boat Safety
Act. Br. 17-28.
Respondent defends this dramatic about-face by arguing that,
“[a]lthough this litigation was primarily conducted on the
assumption that state law applied, . . . the parties briefed and
argued all points necessary to [the] conclusion” that the case
falls within federal maritime jurisdiction. Br. 17. This
contention is simply false. In truth, none of the extensive
arguments raised by respondent regarding application of
maritime law was ever presented to the lower courts. In fact,
respondent’s only argument relating to maritime law was in one
paragraph of its 75-page brief to the Illinois Supreme Court,
where it simply argued that petitioner’s claims are not entitled
to the traditional presumption against preemption of state law
because this accident occurred on water – an area where “there
has been a history of significant federal presence.” Br. 36. And
respondent never even hinted – let alone actually argued – that
petitioner’s exclusive remedy lies in admiralty; to the contrary,
Mercury Marine agreed that petitioner’s claims arise under
substantive Illinois tort law, and it attempted to persuade the
lower court to render a decision in its favor on the basis of the
alleged weaknesses of petitioner’s state-law claims. Id. at 49-75.
Even if this Court were prepared to overlook respondent’s
failure, in clear violation of Rule 15.2 of this Court, to raise its
brand-new issue in its brief in opposition, this Court does not
address, in any but the most “exceptional cases,” questions that
a respondent raises here for the first time. Kentucky v. Stincer,
482 U.S. 730, 747 n.22 (1987). That rule applies with “peculiar
force” in “cases coming here from state courts.” McGoldrick v.
Companie Generale Transatlantique, 309 U.S. 430, 434 (1940).
In this case, there is nothing “exceptional” about the issue
respondent raises, given that (1) the lower court undisputably
possessed subject matter jurisdiction over this lawsuit, see
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23
(1986) (under “savings-to-suitors” clause, state courts are
competent to adjudicate maritime cases); and (2) application of
federal maritime law in an admiralty case “can be waived.”
General Chemical Corp. v. De la Lastra, 852 S.W.2d 916, 919
(1993).
In addition, respondent’s argument that no-propeller-guard claims are governed by federal maritime law has never
even been addressed in a single reported decision involving
claims like petitioner’s. See Pet. Br. 22 n.7; Resp. Br. 26. Thus
there is no “exceptional” reason for this Court to tolerate
respondent’s thirteenth-hour attempt to derail this proceeding.
See Steagald v. United States, 451 U.S. 204, 209 (1981) (a
respondent should be barred from raising new issue “when it
has made contrary assertions in the courts below, when it has
acquiesced in contrary findings by those courts, or when it has
failed to raise such questions in a timely fashion during the
litigation”).
B. Respondent’s new argument also fails on its merits. As a
threshold matter, a party seeking to invoke admiralty
jurisdiction over a tort claim must show that (a) the tort
occurred on “navigable water”; and (b) that the incident “bears
a substantial relationship to traditional maritime activity” and
has “a potentially disruptive impact on maritime commerce.”
Grubart, Inc. v. Great Lakes Dredge & Dock, 513 U.S. 532,
534 (1995). The first part of this test is likely not met here
because Dale Hollow Lake (“DHL”) is a recreational lake that
apparently does not support any maritime commerce.
As for
the second part of the jurisdictional test, although “there is no
requirement that the maritime activity be an exclusively
commercial one,” Foremost Ins. Co. v. Richardson, 457 U.S.
668, 674 (1982), this Court has insisted that, at the least, an
incident involving a pleasure boat must either implicate the
“traditional concern that admiralty holds for navigation” (id. at
675) or have the potential to disrupt the commercial activities
of other boats. Sisson v. Ruby, 497 U.S. 358 (1990). Neither
situation is present here, given that there was no collision with
another vessel, compare Foremost, 457 U.S. at 675; Yamaha
Motor Corp. v. Calhoun, 516 U.S. 199, 202 (1996), and no
possibility that this accident could disrupt the conduct of
maritime commerce on this purely recreational body of water.
Compare Sisson, 497 U.S. at 363 (finding admiralty jurisdiction
where fire on yacht docked at marina “could have spread to
nearby commercial vessels or ma[d]e the marina inaccessible to
such vessels”). Against this backdrop, it is not surprising that
respondent never before even attempted to argue that
petitioner’s lawsuit was subject to federal admiralty
jurisdiction.
Even if this case did fall within admiralty jurisdiction, it
would not follow that petitioner’s lawsuit is governed by federal
maritime law. On this point, respondent simply equates the
existence of admiralty jurisdiction with the application of
substantive maritime law. See Br. 19-20. In reality, the
question of what substantive law governs tort cases litigated in
admiralty (which was specifically left open in Yamaha, 516
U.S. at 216 n.14) remains one of the thorniest and most debated
areas in maritime jurisprudence.
In the wake of Yamaha,
however, numerous commentators have persuasively argued
that choice-of-law issues in admiralty should be resolved by
weighing the relative interests of the state and the federal
governments in applying their substantive law to the matter at
issue.
In this case, which involves a “nonseafarer” and arises
out of an accident on territorial (and, it appears, purely
recreational) waters (see n.19, supra), the State of Illinois’
interest in providing a tort remedy to petitioner outweighs any
federal interest in the application of federal maritime law. See
Brief Amici Curiae of the States of Missouri, et al., 12-17.
Thus, even if this case lies in admiralty as a jurisdictional
matter (which it does not), choice-of-law principles in the post-Yamaha era dictate that petitioner’s claims are governed by
Illinois state tort law (as respondent has contended all along).
Finally, even if this Court were to conclude that this case is
governed by federal maritime law, any federal common-law
claims that could be asserted by petitioner would not – as
respondent contends – be “displaced” by the Boat Safety Act.
See Br. 20-25. Not only has this argument never been adopted
by any court, but it is directly contrary to the plain language of
the Boat Safety Act, which expressly preserves common-law
claims. See 46 U.S.C. § 4311(g). While it could be argued that
this express preservation of victims’ rights to sue only preserves
claims brought under state common and statutory law, it would
have made no sense for Congress simultaneously to have
extinguished all claims asserted under federal common law.
In any event, respondent’s “statutory displacement” argument
is nothing more than a rehash of its state-law preemption
defense (see Br. 20-25), and it fails for all the same reasons –
not the least of which is that Congress did not give the Coast
Guard the authority to preempt (or to “displace”) any common-law claims, state or federal, simply by writing a letter.
CONCLUSION
The lower court’s decision finding preemption of petitioner’s state common-law claims should be reversed.
Respectfully submitted,
Arthur H. Bryant
Trial Lawyers for Public
Justice, P.C.
One Kaiser Plaza, Suite 275
Oakland, CA 94612
(510) 622-8150
Joseph A. Power, Jr.
Todd A. Smith
Devon C. Bruce
Power, Rogers & Smith, P.C.
35 West Wacker Drive,
Suite 3700
Chicago, IL 60601
(312) 236-9381
Leslie A. Brueckner
(Counsel of Record)
Michael J. Quirk
Trial Lawyers for Public
Justice, P.C.
1717 Massachusetts Avenue,
N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600
John B. Kralovec
Kralovec, Jambois &
Schwartz
120 North LaSalle Street
Suite 2500
Chicago, IL 60602
(312) 782-2525
Counsel for Petitioner
Date: June 26, 2002