William H. Rehnquist: We'll hear argument next in Number 94-1387, Yamaha Motor Corporation v. Lucien Calhoun. Mr. Bartlett, you may proceed whenever you're ready.
James W. Bartlett, III: Thank you. Mr. Chief Justice and may it please the Court: This is a maritime collision case. That means, as the Third Circuit acknowledged, that substantive admiralty and maritime law applies. Where the Third Circuit went astray, however, was in holding that maritime law does not supply the rule of decision. It does. That rule is the general maritime law death remedy announced by this Court in Moragne, and because this is a maritime case, the choice of law analysis is that of American Dredging. First, Moragne.
William H. Rehnquist: Do we actually know what difference it makes as to what this particular plaintiff recovers which view prevails?
James W. Bartlett, III: Well, of course, the damages issues, the exact elements of damages issue was not accepted by this Court, although it was one of those that was... we asked the Court to address.
William H. Rehnquist: So at this stage, we're deciding a fairly abstract question, and conceivably it might not make any difference, is that correct, that Puerto Rico might have the same rule as the general maritime law?
James W. Bartlett, III: I believe you are addressing, in that sense, an abstract question, yes, and, indeed, the damages issues can go either way, depending upon what State law you're applying, not just Puerto Rico or Pennsylvania, but my own State of Maryland, would have differences between those.
Anthony M. Kennedy: Do the definitions of the primary duty possibly differ, depending on the rule we adopt?
James W. Bartlett, III: I do not believe so. The primary duty would be, of course, set out in the various liability theories. In this particular case, maritime law addresses or accepts and recognizes all of the various theories for product liability... strict product liability, negligence, and warranty... but that would not be the case, say, for example, were the plaintiff or the victim to have died in the territorial waters of Delaware. Delaware does not recognize strict liability in tort product defects, so negligence would be there.
Anthony M. Kennedy: So when we're deciding this case, I assume we should consider that the consequences of our decision may have some bearing on how the primary duty will be defined in other cases that come before us.
James W. Bartlett, III: Certainly--
Anthony M. Kennedy: Or are you just confining your argument to questions of damages and remedy?
James W. Bartlett, III: --No. I think... Yamaha is a boat manufacturer, but it stands in the shoes of any potential maritime defendant who could be sued for the death of a "civilian". It could be a shipowner. It could be shipbuilder.
John Paul Stevens: Yes, but isn't there this difference: you really wouldn't have a seaworthiness claim with this particular article, would you?
James W. Bartlett, III: No. Seaworthiness is a--
John Paul Stevens: Which is what we had in Moragne.
James W. Bartlett, III: --has a theory of liability that is only available to a Jones Act seaman.
John Paul Stevens: Well, theoretically you could have a seaworthiness theory of absolute liability for passengers, couldn't you?
James W. Bartlett, III: Well, the strict liability theory is certainly an absolute liability theory, so if it was a claim that the ship or a passenger on a ship was injured by some defect or defective design of the ship or the boat, then you would have an absolute liability theory under which the plaintiff could recover, but it would not be the unseaworthiness theory.
John Paul Stevens: In this case we have a negligence theory, don't we?
James W. Bartlett, III: We have a... we have negligence but there's also a claim in strict liability, which this Court recognized as being viable under maritime law in the East River case.
John Paul Stevens: You contend that marine preempts the negligence theory, don't you?
James W. Bartlett, III: No, I don't.
John Paul Stevens: Oh.
James W. Bartlett, III: First of all, I think Moragne precludes the remedy of State wrongful death, but it doesn't preempt any theory along those lines, so--
David H. Souter: Because, as Federal common law, we can adopt that theory.
James W. Bartlett, III: --What theory is that, Your Honor?
David H. Souter: Any theory that is not... you say it doesn't preempt a particular theory of liability.
James W. Bartlett, III: Correct.
David H. Souter: And the answer to that is because we can make up common law, Federal common law, and adopt a different theory.
James W. Bartlett, III: And you have. Certainly in the East River case you adopted a common law rule that was based upon looking at what the States did, what the Restatement says, and you adopted in essence the 402(a) section absolute strict liability for product defect, and you said--
David H. Souter: I just wanted to understand your reasoning. Your reasoning is that because State law is preempted, their given Federal theory of recovery is not precluded.
James W. Bartlett, III: --Correct.
John Paul Stevens: Yes. But you do contend that a State law theory, negligence theory of recovery is preempted. Let me put is this way. In Moragne there were two theories. 1) There was the Florida negligence theory, and the unseaworthiness theory.
James W. Bartlett, III: Yes.
John Paul Stevens: And Moragne held that the unseaworthiness claim was available, and it left standing... as you remember, it was a 1292(b) appeal... left standing the negligence theory. That was not preempted in that case.
James W. Bartlett, III: Correct.
John Paul Stevens: Do you contend that if the same two-count complaint were filed today, that the negligence, State law negligence theory would be preempted?
James W. Bartlett, III: Yes, because I believe the Moragne theory of recovery adapts itself, or allows itself to go forward under any theory of liability, be it strict product liability, be it negligence--
John Paul Stevens: Even though it was not preempted in Moragne itself?
James W. Bartlett, III: --Yes.
Ruth Bader Ginsburg: And even though Moragne, even going back to The Harrisburg, said the way we got into this mess in the first place was that they sued too late on the State claim.
James W. Bartlett, III: Yes, well, The Harrisburg, of course, held that there was no wrongful death remedy.
Ruth Bader Ginsburg: Yes, but let me just understand this background of the case. You have no quarrel with the law that was in place pre-Moragne... that is, for these inland water deaths. The remedy was State survival and wrongful death acts, pre-Moragne.
James W. Bartlett, III: Yes, because this Court allowed State wrongful death statutes to provide a remedy where The Harrisburg said there was none under the general maritime law.
Ruth Bader Ginsburg: So when the Death on the High Seas Act was passed, everyone understood that for inland waters, as distinguished from overseas, that their State law remedies would apply.
James W. Bartlett, III: That was because, I believe, that the Congress, when it passed the Death on the High Seas Act, was providing the remedy where there was none. It was solving the problem--
Ruth Bader Ginsburg: Right.
James W. Bartlett, III: --that was presented to it.
Ruth Bader Ginsburg: Right, and then we get Moragne, which involves an unseaworthiness claim, and this Court is adding something that didn't exist before, a Federal maritime law claim for the unseaworthiness for the benefit of a longshore worker, and that's what Moragne itself does. It adds something. Now, you are saying, but without saying so, implicit in Moragne is also a subtraction, and how do you get to the subtraction? I see what Moragne added, but I don't see in the decision itself anything that says and, not only are we creating this seaworthiness that the States don't know about because they don't know about seaworthiness doctrine, but we are also taking away what everyone understood was in place up until now.
James W. Bartlett, III: I think the logic of Moragne is such that you can only read it as providing a uniform death remedy that is to apply to the exclusion of State wrongful death statutes.
Sandra Day O'Connor: Well, Mr. Bartlett, to put it another way, it seems to me for you to prevail we would have to extend Moragne, because it didn't really cover this.
James W. Bartlett, III: It only went to the unseaworthiness theory of liability, that's correct, but--
Sandra Day O'Connor: I mean, it seems to me you'd have to extend it. Do you see any room in State territorial... in territorial waters for both admiralty law and State law, depending on the circumstances?
James W. Bartlett, III: --No, I don't. I believe the Moragne remedy provides both a wrongful death remedy and several of the lower courts have also held that it can provide a survival--
Sandra Day O'Connor: Well, there's a division of opinion on whether Moragne should be extended to this, but it... what is the Federal interest in uniformity in connection with a jet ski accident in territorial waters? Why do we need to apply admiralty law and seek uniformity? Why isn't that much closer to traditional State negligence actions, where State law should govern? I mean, territorial waters encompass navigable waters within a State, do they not, rivers, lakes, so forth, and up to 3 miles out to sea. Is that what we're talking about?
James W. Bartlett, III: --Yes. Well, this Court in Foremost and Sisson held that admiralty jurisdiction extended to all navigable waters, and certainly where a recreational boat collision, as was the case in this case, was involved.
Sandra Day O'Connor: Well, there can be admiralty jurisdiction in territorial waters, we've so held, but perhaps it's limited to where there's really a Federal interest, where there are seamen involved, or longshoremen and harbor workers, or something of that sort. Is it necessary that it extend... admiralty rule of law extend to recreational boating accidents?
James W. Bartlett, III: I believe it is, because the Constitution, Article III, section 2, spoke to the exclusive jurisdiction of the courts, and with that this Court has held time and time again that that power meant that the Federal courts were to fashion this general maritime law, exactly what this Court did in Moragne.
David H. Souter: But I had thought... you're referring now to admiralty jurisdiction. Tell me if I'm wrong, please, but I had thought that for many years admiralty jurisdiction has been a forum for enforcing any number of State rules and State primary duties.
James W. Bartlett, III: Sir--
David H. Souter: I mean, it seems to me that we're mixing up jurisdiction here with the source of the primary duty.
James W. Bartlett, III: --This Court has held in the East River case and articulated in several other cases that with admiralty jurisdiction comes admiralty substantive laws. Certainly that isn't a situation that always occurs. There are certain situations that this Court has recognized where State law or State interests will be allowed to overcome that presumption, if you will, that maritime substantive law applies.
Ruth Bader Ginsburg: Mr. Bartlett, I think you conceded, and you were very forthright in this, that pre-Moragne, the law that was applied in cases like this was State law, State wrongful death acts, State survival acts, and you are not suggesting now, are you, that that was an unconstitutional course?
James W. Bartlett, III: Not at all. I believe that was this Court trying to, without specifically overruling The Harrisburg, nevertheless allowing a remedy. The Harrisburg was a wrong decision. This Court later in Moragne said it was. But in the meantime, without overruling Harrisburg, this Court allowed the State wrongful death statutes to ameliorate, as it were, the harsh effects of the Harrisburg rule.
David H. Souter: On your theory, is there any role left for the enforcement of a State rule on a kind of borrowing theory by an admiralty court?
James W. Bartlett, III: In this particular area, wrongful death remedies, I think not. However, what an admiralty court should do--
David H. Souter: What about the death of a swimmer?
James W. Bartlett, III: --It would depend on how the swimmer died, Your Honor. For example, I would contend that if a boat in navigation was the force that caused the swimmer to die, then admiralty jurisdiction would be present, and substantive admiralty law would apply. If the swimmer, on the other hand, was just swimming from shore with no relationship--
David H. Souter: Two swimmers collide.
James W. Bartlett, III: --Excuse me?
David H. Souter: Two swimmers collide, no... State law can apply in that case.
James W. Bartlett, III: Yes, Your Honor.
John Paul Stevens: Yes, but the swimmer collides with water skis... admiralty jurisdiction.
James W. Bartlett, III: It would depend, I think--
Speaker: It would be meaningful in this case.
James W. Bartlett, III: --I... certainly we're getting toward that line there, but if the water ski--
John Paul Stevens: Well, what is your answer? In this case, if the vehicle... if the vessel used in this case had hit another swimmer, and that swimmer had been killed, there would be no State law remedy.
James W. Bartlett, III: --There would be no State law remedy. The Moragne--
John Paul Stevens: Even if it was the negligence of the water skier, not the manufacturer--
James W. Bartlett, III: --I believe you are still going to have to do that because you've still got navigation of a boat.
John Paul Stevens: --But that's where your position takes us, that's what I--
James W. Bartlett, III: Yes.
Anthony M. Kennedy: --This is very odd, because in State territorial waters, local sheriffs routinely enforce safety ordinance, they inspect for life preservers, they tag vessels that are operating at illegal speeds, and then suddenly the law is displaced because a State has no interest.
James W. Bartlett, III: Oh, well, the State certainly has an interest, but so does the Federal Government. I think you'll find in this area that there are specific statutes and regulations. For example, the Coast Guard administers safety on navigable territorial waters, but there is also legislation and regulations that cede certain responsibilities to the State.
Ruth Bader Ginsburg: Mr. Bartlett, what Federal interest is disturbed by allowing State law to control this kind of accident? This is a complicated case. There's a very long opinion, but at the end there's a line that says, this case at base is no different than a cause of action arising out of the average motor vehicle accident. Why should it be handled differently? Is it a constitutional compulsion? Is it this Court's development of the maritime law?
James W. Bartlett, III: I believe it's both, Your Honor. I believe it's Article III, section 2, and this Court's and the lower court's, as is to be done forming the general maritime law that admiralty practitioners such as myself depend upon.
Stephen G. Breyer: The question... I don't see what difference it makes, frankly, whether conceptually you say State law has its cause of action and applies, or whether you say, this is a maritime tort, exclusive jurisdiction of which is given to an admiralty court, saving to suitors, but that's a remedial and not a positive question. But so... for we have an admiralty tort under Federal law, but by the way, we'll borrow State law, which, of course, is what we should do, unless it's hostile to statutes. All right, so I don't understand why it makes a difference, but I did think of an example where it would tell us it might. Can you, in a personal injury action not leading to death, under current law get punitive damages? If the answer to that question is yes, and I suppose that what's been happening in personal injury cases is they've been borrowing the entire State action, or not borrowing it, just following it. But if the answer's no, it must be that in personal injury cases what's been happening is grafting good State law onto an admiralty cause of action, so what's the answer to that question? I think it's pretty important, since Moragne says follow personal injury precedent.
James W. Bartlett, III: Well, punitive damages are available under maritime law.
Stephen G. Breyer: In personal injury cases?
James W. Bartlett, III: Yes, but--
Stephen G. Breyer: So they have a lot of cases where you get--
James W. Bartlett, III: --Well, the current jurisprudence is a trend against them, I must admit, but as it stands now--
Stephen G. Breyer: --Well, my theory... maybe it isn't a good example, is, are there instances... look, you have millions of personal injury cases on territorial waters in ships. I would think there are--
James W. Bartlett, III: --Yes.
Stephen G. Breyer: --quite a few involving passengers.
James W. Bartlett, III: Yes.
Stephen G. Breyer: Okay. What's the understanding of the bar in the States? Is it that you take the State law and apply it, nothing else?
James W. Bartlett, III: I think you look to the entire body of not just one State's law but many States' laws.
Stephen G. Breyer: And can you demonstrate that in the law, because if you can demonstrate that in the law, I guess that's what Moragne tells us to do.
James W. Bartlett, III: Well, I believe this Court, for example in the East River case, looked to see what the other... what all of the States were doing with respect to the remedy for strict liability for product defect, also looked to the Restatement, and then formed the general maritime law rule from that, so--
Stephen G. Breyer: What do you do about the one precedent against that, which is Holmes in The Hamilton, because Holmes in The Hamilton certainly says that you can have a State statute, pure and simple. Otherwise, where did they ever get it in the State wrongful death survivor before Moragne?
James W. Bartlett, III: --Well, Your Honor also looked to State law in Lyon v. The Ranger III, when you sat on the First Circuit--
Speaker: Yes.
James W. Bartlett, III: --And you looked to Rhode Island law on an issue of law that the maritime law was silent on, and that's exactly how the general maritime law is to be formed, looking to other sources.
Stephen G. Breyer: I'm trying to find differences between the theory of, what we're doing is just borrowing State laws in an admiralty matter, and State law applies pure and simple. Punitive damages doesn't work, but Holmes in The Hamilton seems to apply State law pure and simple, doesn't he, because there was no Federal admiralty law.
James W. Bartlett, III: That's correct.
Stephen G. Breyer: So what's his theory there? Well--
James W. Bartlett, III: Again, well, that was post-Harrisburg and pre-Moragne, Your Honor.
William H. Rehnquist: --Thank you, Mr. Bartlett.
James W. Bartlett, III: Thank you.
William H. Rehnquist: Mr. Engelmayer.
Paul A. Engelmayer: Mr. Chief Justice, and may it please the Court: Our position is twofold. First, the general Federal maritime death remedy applies to the death of any nonseaman in territorial waters within admiralty jurisdiction and, second, that remedy may not be supplemented by State remedies. Let me begin very briefly with the first point.
John Paul Stevens: Will you when you... before you get through explain why the second count of Moragne survived, then?
Paul A. Engelmayer: The issue is not before the Court, Justice Stevens.
John Paul Stevens: But it was decided in that case, was it?
Paul A. Engelmayer: No. I believe what happened in Moragne was that the difficulties accommodating--
John Paul Stevens: If Moragne didn't decide it, what did?
Paul A. Engelmayer: --What decides the--
John Paul Stevens: Decide your view.
Paul A. Engelmayer: --Right. What decides the displacement of State remedies issue is the settled principle noted by this Court in Tallentire that State law may not apply where it would change substantive admiralty law. That has applied in the context of remedies both where the remedies were developed by statute, as in the cases of Tallentire and Chelentis... excuse me, Tallentire and Gillespie, dealing with the statutory death remedies under the DOHSA and the Jones Act. It's applied in the context of injury in the Chelentis case... where this Court developed a substantive maritime law that said at the time that only maintenance and cure were recoverable by seamen, and therefore State remedies were precluded where they sought full indemnification, and that same principle--
John Paul Stevens: You say Tallentire decided--
Paul A. Engelmayer: --Yes. I think Tallentire is, well, factually not on point, as a matter of legal principle on point, for this reason. Tallentire, after establishing that there was no affirmative preservation of State death remedies on the high seas then had to confront the issue of whether, under settled principles of admiralty law, whether there was any room for a conflicting State damages remedy. The Court held that there was not, and the Court stated the operative principle... I believe it's on pages 223, 222, 224... that the State law cannot change substantive admiralty law. In this case--
David H. Souter: --Well, what's the substantive admiralty law here? Aren't we addressing the question here, assuming admiralty jurisdiction to begin with, should there in fact be a substantive admiralty rule to be applied, and therefore to displace State law? Aren't we addressing a different question?
Paul A. Engelmayer: --Well, I guess that's the threshold issue I meant to address, which is just what is the scope of the general--
David H. Souter: Okay, and until that threshold issue is addressed, Tallentire isn't on point, or we can't tell whether it's on point.
Paul A. Engelmayer: --I agree. Let me explain why I believe that issue is settled. Moragne, although it was brought here because of the specific problems accommodating unseaworthiness to State statutes, issued a more broad holding. There would have been no reason to overrule The Harrisburg, which was a negligence case, and the Court throughout Moragne made clear that it was reluctant to... that it felt that the bar to recovery in death cases had been anachronistic, whereas the Court put the point, barbarous, and so it wrote that an action does lie under general maritime law for death caused by violation of maritime duties. Those duties include no negligence, the duty of due care. That's in the Kermarec case from 1959. And so our point here is that there is no reason the maritime death remedy should not apply to when the person killed by maritime tort just happens to be a so-called recreational boater.
William H. Rehnquist: In this case, I get the sense we don't know what the State remedies are, and we don't know what the admiralty remedies are.
Paul A. Engelmayer: Right.
William H. Rehnquist: So we're talking about a very abstract proposition that may make no difference at all.
Paul A. Engelmayer: Conceivably, although I think at the end of the day the issue would be, are State remedies precluded because they are inconsistent with the Federal maritime remedy, so while it's possible at the end of the day a State remedy could apply, that is only because it is thoroughly consistent with the Federal remedy developed in Moragne.
David H. Souter: What, in fact, you're saying is-- --Well, but it seems to me-- --I'm sorry. It seems to me that we have two choices to make.
Paul A. Engelmayer: Right.
David H. Souter: If we agree with you, we displace a substantial body of State law on products liability personal negligence, et cetera, in all death cases, areas in which States have very substantial expertise, very well-developed bodies of law. If we agree with the respondent, we displace the rules of most of the circuit courts that have ruled in this area, but it seems to me that it's asking the Federal courts to begin developing, to continue to develop wrongful death rules in territorial waters where we don't really have that much of an interest.
Paul A. Engelmayer: Let me address those first as a matter of precedent, second as a matter of policy. With regard to precedent, the Federal courts in admiralty are already in this business. In a series of cases, this Court has held that State rules of liability cannot apply in admiralty, where they would be inconsistent with Federal standards. I would cite to the Court Robins Dry Dock, involving an inconsistent scaffold regulation, Pope and Talbot, Kermarec, the workman rule which was discussed in the Chicago case recently, the Messel case... we're already in this business, and there already is an admiralty duty to not commit products liability. With regard to the policy reason, it's the same reason that the Court noted in Foremost, which is the interest in freedom of navigation. If State remedies are allowed to be used on the territorial waters, there will be different and potentially onerous State tort law regimes that will govern maritime actors as they go up and down the Nation's coastlines, as they go along the State, the Nation's interstate waterways. Now, that, in turn, could inhibit the primary conduct of actors, not just manufacturers of jet skis--
Ruth Bader Ginsburg: But why does that lead to the rule that there must be absolute uniformity? Why can't State law apply up until the point where there's a genuine collision with some authentic Federal interest?
Paul A. Engelmayer: --I agree with your proposition. Our... my suggestion is that there is a Federal interest in having uniform remedies, because remedies affect primary conduct. If a person--
Ruth Bader Ginsburg: I don't understand the Federal interest in having a different remedy, a different regime for the jet skier who is off the coast of Puerto Rico and the one who is on an inland lake.
Paul A. Engelmayer: --The interest is that Article III has committed the admiralty jurisdiction, which has been defined to include the former, Puerto Rico, and not the latter. Article III has established an interest in maritime uniformity in order to protect commerce. If there are different--
Ruth Bader Ginsburg: You've already... I think you've agreed with me that for years maritime jurisdiction coexisted peacefully with picking up wrongful death and survival acts from State laws and plugging them into claims like this one.
Paul A. Engelmayer: --Right, and I think historically the reason between The Harrisburg and Moragne, why State remedies were picked up, was akin... was simply because there was a gap in Federal remedial coverage, and the admiralty does what it does when there is no Federal law on point, which is to borrow State law, as Judge Breyer did in his First Circuit opinion. When there's no rule on point, you can look to State law, providing the admiralty court elects not to develop one. Our position is that this court in Moragne has developed a Federal remedy. That remedy is measured by the remedies available in DOHSA and the Jones Act. There's no reason for any... for the disuniformities that would occur across classes of plaintiffs or in different areas of a territory.
David H. Souter: I think you also make the more general point, if I understood your answer to my earlier question, and that is, Tallentire applies because Moragne requires you... requires the Federal admiralty courts to develop substantive law in this area.
Paul A. Engelmayer: Exactly.
Stephen G. Breyer: There is no choice left. We may not know what it is yet, but there is no choice but to develop it.
Paul A. Engelmayer: I couldn't put it better, and essentially the lower Federal courts for 25 years have fleshed out the Moragne remedy in the nonseamen territorial waters context, following the cues sent by this Court, for example in the Miles case.
Stephen G. Breyer: That's what I want to know, what they do.
Paul A. Engelmayer: Right.
Stephen G. Breyer: In personal injury cases, in territorial waters, don't admiralty courts by and large apply for nonseamen, nonlongshoremen, State law? I mean, there may be a curlicue that they lop off, but that's why I don't understand what this is about, because the normal thing would say, just as we did in that range, or whatever it is, borrow State law, unless the State law is... what happens in personal injury cases? The only time I have to look it up in that case, it looked as if what I was supposed to do was, here it is, an admiralty cause of action, it doesn't concern a seaman, doesn't concern a longshoreman, so I should borrow State law, and I would borrow State law unless it was inconsistent with some admiralty principle. Now, isn't that what you should do even aside the conceptual... I mean--
Paul A. Engelmayer: Yes.
Stephen G. Breyer: --All right, then if that's what you should do, then isn't... then here, wouldn't State law apply across the board, with possible exceptions for punitives and survival of pecuniary damages? That seems to be what the issue was.
Paul A. Engelmayer: But once you... but you've... you're... the last thing you said, Justice Breyer, I think answers the question. In other words, if the... if Yamaha is correct in this case--
Speaker: Yes.
Paul A. Engelmayer: --there is a Federal remedy that does not extend to nonpecuniary damages, and--
Stephen G. Breyer: Well, that's what Judge Pollack thought. Judge Pollack thought it didn't extend to survival of pecuniaries, and he also thought it didn't... that punitives shouldn't be picked up, and nobody's really focused on that at the court of appeals level.
Paul A. Engelmayer: --I think the Wahlstrom case, to the extent that any court of appeals deals with this systematically, does... that's out of the Second Circuit... does address the issue. I suppose the point, though, is that if the Federal damages remedy in this quadrant of territorial waters, nonseamen, is to be calibrated to the remedies available under DOHSA and the Jones Act, because there would be no really good equitable reason. In that case, State law could apply only insofar as it is consistent with the outlines of that remedy, which the lower courts have generally believed not to include nonpecuniary damages and punitive damages. We're certainly not saying as a formal matter there's no reason State law can't apply in the abstract, and State recreational boating statutes can apply because, by and large, they are not inconsistent--
William H. Rehnquist: Thank you, Mr. Engelmayer. Mr. Morrison, we'll hear from you.
Alan B. Morrison: Thank you, Mr. Chief Justice, and may it please the Court: The question presented in this case is whether the historic use of State law for wrongful death accidents that occur in territorial waters that has existed for more than 100 years has been displaced by Federal maritime law. The accident here occurred in territorial waters, not on the high seas.
Sandra Day O'Connor: And you concede the Federal court has admiralty jurisdiction over the case?
Alan B. Morrison: We allege jurisdiction, subject matter jurisdiction both on the diversity statute and under the admiralty statute. We believe that we clearly have it under diversity. I would prefer not to debate whether we have it under the admiralty jurisdiction. This Court's jurisprudence is quite complicated on that, and we think that one of the reasons, indeed, that we should continue to use State law is because if we accept the petitioner's position, we must in every case... the first inquiry must be subject matter jurisdiction, because it's only if you have admiralty jurisdiction based on maritime law that you get into this displacement problem to--
William H. Rehnquist: That's the first inquiry in any Federal court--
Alan B. Morrison: --Precisely, Your Honor.
William H. Rehnquist: --is subject matter jurisdiction.
Alan B. Morrison: But we have subject matter jurisdiction here because there is diversity, and we didn't need to allege admiralty jurisdiction, and we want to rest our claim on the diversity jurisdiction because we are relying on substantive State law in this case.
Anthony M. Kennedy: May I ask you one question? It might sound like a quibble, but it's important to me, in any event. You said the question is whether or not State law has been displaced. Is the question whether or not State law should be displaced?
Alan B. Morrison: Well, Your Honor, that is, of course, the Court's prerogative. I would note that the way the case has been argued, the way the Solicitor General said may they continue after Moragne--
Anthony M. Kennedy: Yes.
Alan B. Morrison: --it is... it has been argued that way, but I would agree that the Court could now, as Justice O'Connor said earlier, extend Moragne to say, even though we didn't displace State law back then, we're going to do it now. The Court clearly has in its power to do so, and I want to first address the question of whether it has been displaced, and then to explain to you why I think it would be a bad idea for the Court to do so.
William H. Rehnquist: Well, what if a seaman, the executor of a seaman comes into court and says, my... the seaman had an unseaworthiness claim against a vessel, and so I'm suing... I'm suing the shipowner, and I'm suing him diversity of citizenship. I don't want to get into all this admiralty business. Do you think that that simply forecloses admiralty jurisdiction?
Alan B. Morrison: No, Your Honor, it doesn't for one very important reason, and that is because as to the seaman, there is a Federal statute, the Jones Act, and as to death on the high seas, there's the Death on the High Seas Act, and for longshoremen or harbor workers there is another Federal statute, and so when... cases like Miles and Tallentire and Higginbotham all involve cases where there was a comprehensive Federal statute, and this Court said in every one of those cases, we are not in a position to second guess the judgment made by Congress. They've created a set of rights with remedies, offsetting benefits. We can't go beyond that. So Your Honor, in that case, it's controlled by the Jones Act and its terms, and you do not have an alternative State remedy, as this Court has held in several cases.
John Paul Stevens: Not only that, but may I just throw in, in Moragne itself, they referred that question to the Florida State supreme court, and they held there was no State remedy for unseaworthiness, so there's an absence of a State remedy as well as the presence of a Federal remedy in the hypothetical.
Alan B. Morrison: That is correct, Your Honor. That is correct. I would also say, of course, that--
Ruth Bader Ginsburg: Mr. Morrison, but I'm not still clear on this pleader's choice that the Chief was raising. I was under the impression that the pleader could not type... even in a personal injuries civilian claim like this, that if you could bring it under admiralty, then you must... then it does fall under the Federal maritime jurisdiction, that you could not, by having the alternate diversity, come in as an ordinary diversity case. I thought there was precedent to that effect. There isn't pleader's choice.
Alan B. Morrison: --Well, I... I'm not sure that I understand Your Honor's question precisely. I agree that if... that in certain situations this Court has held that the existence of Federal maritime law precludes the States from applying their substantive law, Pope and Talbot and so forth.
Ruth Bader Ginsburg: No, let me... you don't understand my question. I want to make it--
Alan B. Morrison: I think I do not, Your Honor.
Ruth Bader Ginsburg: --as simple as I possibly can. You plead maritime jurisdiction. You please diversity. I had thought there was precedent for... that the Federal courts must take this under the admiralty wing and do not have the discretion, either at the pleader's request or as a matter of the court's own choice, which side of the court this is going to go on, that if you fit within the admiralty peg, you must go there even though you would fit under diversity as well.
Alan B. Morrison: I think Your Honor is referring to the cases in which the substantive law to be applied is Federal maritime law. That is, that you cannot get around the application of the substantive law by pleading diversity, but the question... but that is the case because in that case there has been displacement, which is itself the question presented here. I would agree, for instance, as the Chief Justice's example said, that you can't get around the application of the Jones Act by pleading diversity and if, in fact, we had a substantive maritime claim, that was clearly a Federal maritime claim that applied and that was mandatory because of the necessity for uniformity. We couldn't get around it by pleading diversity. That is not this case.
William H. Rehnquist: But you would envision a different result, then, if there had been no diversity of citizenship in this case. Then the person would have had to come into admiralty, and I take it it must mean make some difference to you if you're insisting on diversity.
Alan B. Morrison: Your Honor, in that case, we probably would have filed it in State court, but I would agree with Justice Ginsburg that in that case, even by going into the State court, if Federal maritime law applies the substantive principle, the reverse Erie issue, we would have had to apply Federal maritime law even if the choice of forum was the State court.
Antonin Scalia: I'm not sure what you're saying, Mr. Morrison. Do you care whether it's maritime jurisdiction or diversity jurisdiction? I mean, you don't really care, do you? You say we simply do not have to decide that question.
Alan B. Morrison: That is... we certainly do not have to decide it.
Antonin Scalia: So long as Federal admiralty law doesn't apply.
Alan B. Morrison: Correct, Your Honor. Correct.
Antonin Scalia: Are there any circumstances where it would make any difference so long as Federal maritime law doesn't apply?
Alan B. Morrison: No, Your Honor. As long as we have that qualifier, that's right.
Antonin Scalia: I thought that was your point, not that--
Alan B. Morrison: That is my point, Your Honor.
Stephen G. Breyer: --Do you care whether it makes a difference whether the court were... and does it, whether the court says, of course maritime law applies, but in territorial waters, Federal maritime law picks up State law insofar as it is not hostile to the policy of Federal maritime law, or the Court says, of course State law applies to the extent that it is not inconsistent with the policies of Federal maritime law. I mean, that's my basic problem with this case. What difference does it make, and is anybody arguing for a different rule than either A or B?
Alan B. Morrison: Well, I believe that the petitioners are arguing that in this case anything that looks to State law automatically undermines Federal law.
Stephen G. Breyer: But do you care? I mean, that is--
Alan B. Morrison: Yes, I... well, I care in the sense that I know what they are arguing for. They argued before Judge Pollack that we're entitled to nothing but funeral expenses for the death of--
Stephen G. Breyer: --Yes, but you could easily say that Federal maritime law picks up in territorial waters. In fact, the cases seem consistent with that. Federal maritime law--
Alan B. Morrison: --Well, they pick up a lot less o the remedy side than most State wrongful death--
Stephen G. Breyer: --But they're dealing... on the remedy side they're dealing with Jones Act seamen and longshoremen. When you talk about passengers, it would be much harder to make a case, wouldn't it, that remedies of certain sorts... I mean, maybe the survivor pecuniary is. Maybe the punitives are. I don't know, but the--
Alan B. Morrison: --Well, part of my plea is that when we are dealing with civilians... that is, nonseamen, nonlongshoremen... that we ought not to start pushing them into the maritime field when there's no Federal interest in doing so except this rather generalized interest in uniform--
Stephen G. Breyer: --What happens in personal injury cases? I'm back to that because of the statement in Moragne which says, in most respects the law applied in personal injury cases will answer all questions that also arise in death cases, so when you have a personal injury case of a civilian in territorial waters, what is the state of the law, and I've oddly... perhaps my fault. I haven't really been able to figure it out.
Alan B. Morrison: --Well, I have not been able to figure it out entirely either, Your Honor, but I do think that there is probably on the remedy side, as opposed to the primary duty side, a fair amount of differences among the States... that is, nuances differences. Indeed, even in the Federal statutes that we're dealing with here, the Jones Act, the Death on the High Seas Act, the Longshore and Harbor Workers Act, even those Federal statutes sometimes you get full compensation, the longshoreman statute only gets 3,000 in funeral expenses, everybody else gets--
Ruth Bader Ginsburg: Mr. Morrison, I don't think that's the question, because it is the same one that's troubling me, and let me put it this way. Suppose Natalie Calhoun had been sorely injured but not killed in the same place. Would there have been any reference to State law, or would it have been general maritime tort law?
Alan B. Morrison: --In my view, it would have been... she should have and would have been entitled to sue under State law, and... but I recognize that there are some cases that call that into question. I'd begin with Jensen, and I don't want to take part of the Court's debate about the continuing validity of Jensen in this context, but I would point out Jensen did involve the marine worker, a longshoreman, in that case. The Pope and Talbot case and some others have suggested that State law cannot apply where it would be inconsistent with maritime law. In my view, there's no principle of maritime law that would be applicable to this case. As Justice Kennedy said, there's no Federal interest in the regulation of this kind of jet ski accident involving civilians, so in my view we would not have the situation where we would have to apply maritime law, but I recognize that there are some portions of some of the opinions of this Court, cited by the petitioners and the Government, that suggest that State law as a personal injury as opposed to a death case would not apply.
William H. Rehnquist: Well, our Foremost decision, which says that pleasure boating comes within admiralty, is certainly a precedent that might suggest there's admiralty jurisdiction just on the basis of the jet ski here.
Alan B. Morrison: There may be jurisdiction, Your Honor. The question then is, what substantive law must we apply, and I am confident, as this Court mentioned in some of its cases, this is like Bell v. Hood. That is, on the one had, the question is subject matter jurisdiction; having gotten over that, what cause of action, and what cause of action depends upon what substantive law is going to apply. I want to--
Sandra Day O'Connor: Well, maybe it's Federal law, but Federal law says we'll look to State law. I think that's what Justice Breyer has directed himself--
Alan B. Morrison: --Well, I guess my... there's certainly a logical possibility. My suggestion to you is that that kind of roundabout approach is unnecessary here, and was not followed for 100 years from before The Harrisburg right up through Moragne, where we looked to State law because it was available and there, and there was no particular reason to look for Federal law.
Stephen G. Breyer: --Yes, the reason would have been because of the admiralty... you say, a) is it a maritime tort? Yes... you're in admiralty jurisdiction, which is exclusive, saving to suitors their common law remedies. You say, and then we have the law which says remedies just means the remedial thing. And then Holmes in The Hamilton seems to the contrary, but maybe he's just making State law part of admiralty law in the absence of--
Alan B. Morrison: I don't believe so. I don't believe so at that time, because the admiralty law was clear that there was no Federal maritime wrongful death remedy, and you had to look to State law, as there was in The Harrisburg, as there was in Moragne, as there has been in other cases. I want to point out that this case, the defendant in this case is not the owner of the vessel. It is not anybody who was driving the vessel. It is the manufacturer of the vessel, and the claim in Moragne was a claim based on unseaworthiness, and I know of no case in which a manufacturer of a vessel has been held liable for a maritime tort based on the claim of unseaworthiness, nor has this Court ever allowed civilians to sue for unseaworthiness. The Kermarec case in this Court in 1959 involved an invitee aboard a vessel. It was clearly in territorial waters. The Court refused to allow a person aboard a vessel to sue for unseaworthiness.
Ruth Bader Ginsburg: --Mr. Morrison, if I understand you correctly, Moragne would be a rather small thing... that is, if the personal injury claimant retains the same right that the or she had before Moragne for the civilian torts... and what claim would Moragne apply to other than a sailor who dies and there's a claim for unseaworthiness which is not covered by the Jones Act. Would... tell me, if you are right, to what claims does Moragne apply?
Alan B. Morrison: Well, the Court has never decided how... who might be eligible to rely on a claim of unseaworthiness. That is, we know in Kermarec that a person aboard a vessel that was moored to a ship, to a dock, was not entitled to it. There may be other persons. For instance, if someone, a civilian were riding a pleasure boat in navigable waters, a pleasure boat or a tug of some kind or other, and the vessel was actually underway, it would be a different case from Kermarec. I don't know what other cases it would apply to. The statute now has been amended so that the longshoreman in Moragne would not even make it available. It was, of course, in Moragne an additional remedy, in addition to the State court remedy, in addition to the State court remedy, and in addition to the longshoreman's remedy that he had... that the State had against the employer. This was a third claim that was made available in the face of two existing claims, this third claim being against the owner of the vessel. I'm not sure, Your Honor. These cases come up in a variety of contexts, but it does seem to me to be important to remember that Moragne was a case of generosity. This Court said, we're going to apply additional remedies. There was not a hint in Moragne of a cutback, of a displacement. The price of getting the unseaworthiness remedy was the loss of the remedy for State law violations, and that seems to be the question as to whether... in terms of the intent of Moragne, it seems very difficult, in terms of classical preemption analysis displacement on the water, to find the kind of intent to make the price being paid the loss of one remedy in exchange for the grant of the other. Unlike--
Antonin Scalia: I don't think the opinion speaks that way, Mr. Morrison. It seems to me you really understate the thrust of the opinion toward uniformity. I mean, the big argument is really whether Moragne is the signal of a new era of admiralty law in which, contrary to what preceded Moragne, we're going to seek to get uniform... as your opponent said in his presentation, uniform treatment for--
Alan B. Morrison: --I was addressing the question of whether Moragne itself did it. I want to turn now to the question of whether it makes any sense--
Antonin Scalia: --The holding of Moragne could be limited as narrowly as you say, but I don't think the language of Moragne--
Alan B. Morrison: --Well, there is clearly some language about uniformity in there, Your Honor--
Stephen G. Breyer: --Sure is.
Alan B. Morrison: --and I certainly would not extend to the contrary. When this Court has concerned itself with problems of uniformity, it has focused principally on the primary conduct of the persons being affected, citing, in American Dredging and elsewhere, the need to focus on primary conduct. The primary conduct argument is irrelevant here. It's irrelevant because Yamaha makes jet skis. Those jet skis operate on inland waters, but they also... they operate on territorial waters, and they also operate on purely inland waters, as to which there is no Federal maritime claim at all.
Antonin Scalia: Right, and you make that argument in your brief, and what it raises in my mind is whether you expect us to valuate each case and decide whether a uniform admiralty law will apply or diverse State law will apply on the basis of who the particular manufacturer is. I mean--
Alan B. Morrison: Well--
Antonin Scalia: --can't we have more predictability than that?
Alan B. Morrison: --I would at least say, Your Honor, as to manufacturers as opposed to vessel owners, which is what Moragne was actually dealing with, we are in a different category of individuals, companies, and I think the principle difference is that the connection between the manufacturer and the territorial waters is a good deal more attenuated than the connection is between a vessel owner or a vessel operator with concerns about commercial navigation, other kinds of commercial activity, which has animated this Court's maritime--
Anthony M. Kennedy: Well, I suppose the admiralty law could take that into account. The question is whether or not we're going to foist onto the legal profession and the citizens a very, very complex requirement to determine which law they're proceeding under.
Alan B. Morrison: --Well, Your Honor--
Anthony M. Kennedy: And I might just say that I take it your position is contrary to the law of most of the circuits--
Alan B. Morrison: --That is, most of the circuits have come out the other way. I don't think most of them have gone through the analysis that we have gone through, looking at the history. They've simply said, Moragne represented what some of them referred to as a sea change, and we have simply... don't believe that Moragne itself did it. But I think the point, Your Honor, is, rather than creating a whole new complicated set of maritime rules we should continue to do what the court did before Moragne, which was to say... and there was no great problem before Moragne applying State wrongful death statutes in territorial waters to persons who are not in the maritime trade. After all, it's a relatively small number of cases.
Stephen G. Breyer: --Have they before picked up punitives? Have they--
Alan B. Morrison: To my knowledge they have not.
Stephen G. Breyer: --Have not. All right, then, have they--
Alan B. Morrison: --but the law of punitive damages had--
Speaker: --Yes, fine.
Alan B. Morrison: --The law of punitive damages has developed considerably since 1970, in the era of Moragne.
Stephen G. Breyer: Had they previously awarded future pecuniary damages to a person who dies in a survival action?
Alan B. Morrison: I--
Speaker: Do you know?
Alan B. Morrison: --You mean... Your Honor, you're talking about State law?
Stephen G. Breyer: Yes, the State law.
Alan B. Morrison: I believe the answer is yes, but I can't cite you chapter and verse on it.
Stephen G. Breyer: What I'm wondering is, is if we're interested in maritime jurisdiction as an odd historical court for maritime shipping business, then from that perspective, is it better for the shipowners and for the sailors and the seamen to have a generous system of awards which would pick up most State law and a degree of certainty, because the outliers of State law get lopped off. I mean, looking at it--
Alan B. Morrison: Well, most maritime workers are now covered by Federal statutes, longshoremen and harbor workers and Jones Act seamen. Accidents on the high seas are covered by Federal statute, so the only thing we're talking about now is civilians injured and killed in... killed in territorial waters.
Ruth Bader Ginsburg: --But Mr. Morrison, since you are asking, the reason you're so anxious to have the State law, bluntly, is it's more generous.
Alan B. Morrison: It's also more predictable. That is, we know what the State law is now--
Ruth Bader Ginsburg: Well, you know, if you shape the maritime law based on the Death on the High Seas Act, then you have something that's even more predictable than State common law. It's a Federal statute. My question is, why should the civilian get a more generous recovery than the sailors who are supposed to be wards of the court, or anybody who happens to go down when the ship is at sea?
Alan B. Morrison: --Well, I don't think the question is why... with all respect to Your Honor, why there should be that way. The question is that Congress has set up a scheme for the compensation of various categories of persons.
Ruth Bader Ginsburg: It has to be that way because we are making the law, and my question is, why shouldn't the court be governed by a statute that Congress passed to state that the recovery for wrongful death that is a matter of court-made law ought to resemble as closely as possible the law that Congress passed?
Alan B. Morrison: Well, there are, of course... the question is which law one would apply. That is, the Death on the High Seas Act only applies to deaths. It doesn't apply to personal injuries. So if a person is a personal injury victim on the high seas, he or she has to repair to some other law to begin with. So could we look to the Jones Act? Well, the Jones Act deals with sailors. It provides certain levels of compensation. It has a modified scheme of liability which is different from the Jones... from the Death on the High Seas Act. The Longshore and Harbor Workers Compensation Act is a no-fault, entirely no-fault scheme, and so that even within the Federal system, there's a significant amount of disunity. And I guess my answer to your question, Your Honor, is that this Court has permitted State wrongful death, and I would think personal injury cases, to exist in territorial waters for many years. Congress has said, we're going to come in with certain remedies. Congress is fully within its power, if it thinks that uniformity is necessary as to this rather narrow category of groups, to come in and say, we want to do for territorial waters what we did for deaths on the high seas, and by the way, we also ought to do something about personal injuries in--
Antonin Scalia: Maybe Congress thought we already did it in Moragne. I--
Alan B. Morrison: --Well, Congress hasn't said... Congress hasn't passed--
Antonin Scalia: --Like the majority of courts of appeals. Maybe... maybe Congress agreed with them.
Alan B. Morrison: --Well--
Antonin Scalia: Let me ask you--
Alan B. Morrison: --But I don't think... Congress has not addressed the issue except in one respect, Your Honor, and I will point this out. In 1980, Congress passed a statute which is applicable to this case, or to a limited part of this case. It said that the statute of limitations for all maritime torts is 3 years... death, personal injury, high seas, territorial water... and I think that's evidence that when Congress has seen a need for uniformity, a need for clarity, it has come in and superseded both Federal statutes and State statutes.
Antonin Scalia: --Yes, well, we've never felt that we had judicial authority to create statutes of limitations. We've always looked to State law for those, even in areas where it's a Federal cause of action, so that would explain that statute rather readily.
Alan B. Morrison: Well, Your Honors applied laches beforehand. In the maritime--
Antonin Scalia: Well, I mean the Congress would not have expected us to adopt a statute of limitations. But I want to get to another question. You said that at least State law is well-known, whereas we'd be making up new Federal admiralty law. Well, I suppose it's well-known if you know what State laws apply. Now, is that a matter of Federal... I note that here you're seeking to apply Pennsylvania law to an injury that occurred in Puerto Rico. Now, who would have guessed that?
Alan B. Morrison: --Your Honor--
Antonin Scalia: Is this something that's easy to figure out?
Alan B. Morrison: --Your Honor, let me... we are talking about Pennsylvania's remedial statute. She was a resident of--
Antonin Scalia: Oh, I see. She may have other connections to other places, too.
Alan B. Morrison: --Your Honor, as far as we know, there is no difference on the substantive standard of liability in any one of... in any of these cases.
William H. Rehnquist: Then why are you picking Pennsylvania law?
Alan B. Morrison: She was a... I'm talking about the substantive standard applied to the primary conduct. She was a resident of Pennsylvania. We believe under choice of law principles we're entitled in the measure of recovery for wrongful death to apply the law of the residence of the person whose death we are... at issue here, that that is consistent and proper, and that is the reason that we filed this... this case was filed in Pennsylvania. There is, of course, another aspect which the plaintiffs, the petitioners don't want to talk about, and that is, the theory of displacement of Moragne is that we are... we take the Moragne cause of action and apply it. If you do that literally, what you have done is, you must have applied the doctrine of unseaworthiness, because there is no case that I know of which displaces something with nothing, and that is, presumably if this case is governed by Federal law of Moragne it is the law of unseaworthiness. And then the question is, how does one determine the seaworthiness or unseaworthiness of a jet ski, and I suggest to you that simply is a further reason that if you're talking about uniformity, you've got to take the good with the bad, which in this case would be unseaworthiness, and it ought not to be an inquiry of the Federal courts when we have had for more than 100 years perfectly adequate State law remedies. The only reason that they are here is not because they're complaining that States are imposing primary conduct obligations that are inconsistent, but because they want to pay less, and they think they can do it by doing it that way.
Antonin Scalia: Do you acknowledge that it's up to the Federal admiralty court to decide which State law applies, that the choice of law rule is a Federal rule?
Alan B. Morrison: Not--
Antonin Scalia: Or do you think that it has to be bound by the law of the State in which the Federal admiralty court sits?
Alan B. Morrison: --If the court is sitting in the diversity side, under subject matter jurisdiction--
Antonin Scalia: Ah, now it becomes important whether it's a diversity case or-- [Laughter]
Alan B. Morrison: --No--
Antonin Scalia: --an admiralty case, huh?
Alan B. Morrison: --No, Your Honor, if you're applying State law, which is what you are doing in the diversity--
Antonin Scalia: No, no, no, but let's assume I think it's an admiralty case. I think it's an admiralty case. Should the Federal law of admiralty determine choice of law?
Alan B. Morrison: --Yes, if it is a Federal... if it is an admiralty case in the sense that it is a Federal maritime cause of action--
Antonin Scalia: Not substantive.
Alan B. Morrison: --Well, Your Honor--
Antonin Scalia: Jurisdiction is under admiralty. Should not Federal law determine at least choice of law?
Alan B. Morrison: --Not if the substantive law applies as State law. Obviously, the Federal court--
Antonin Scalia: Well, I mean, I don't know which State law it is until you answer the preliminary question. I mean--
Alan B. Morrison: --No, I think that that... well, the first question is a choice between Federal and State law. I think that we... that the complainant in a case like this has the right to choose to go under State law, taking with it the good and the bad. Maybe there's a claim under Federal law. We haven't made it.
Antonin Scalia: --Which State law? I mean, let's assume he has a right to go... which State law? I mean, that's the question, which State law?
Alan B. Morrison: We believe it would be... the choice of law rules would be--
Antonin Scalia: Of the State in which--
Alan B. Morrison: --Yes.
Speaker: --the admiralty cause sits, you said.
Alan B. Morrison: Yes.
Ruth Bader Ginsburg: But Mr. Morrison, if it's like... if it's admiralty jurisdiction and it's like, say, the Federal Tort Claims Act, you will get to a State law, but it's a Federal... Federal jurisdiction, not diversity jurisdiction, you have a Federal pointing rule, a Federal choice of law rule that tells you which State's law to apply--
Alan B. Morrison: Yes.
Ruth Bader Ginsburg: --Then you pick up the law of that State.
Alan B. Morrison: It is in the Federal Tort Claims Act, Your Honor. It is in the statute. It says the law of where the accident shall have occurred, because Congress has specifically enumerated that shall be the choice.
Ruth Bader Ginsburg: Yes, but if we are into Federal law in this case, then by default this Court must be the lawmaker.
Alan B. Morrison: Yes. If we have Federal substantive law, I would agree with Your Honor on that.
Antonin Scalia: Well, no, what she means is, Federal substantive law even when that consists of adoption of State law.
Alan B. Morrison: Yes.
Antonin Scalia: All right.
Alan B. Morrison: But I am saying that the governing principle is State law, not State law as there because it's been adopted as analogous to Federal law.
Stephen G. Breyer: --what would have happened in all of this if your client had been injured and not killed, because I would be so curious to know the answer.
Alan B. Morrison: I think the answer is unclear, Your Honor. The Government has cited a bunch of cases in its brief saying that we would be bound by Federal law. We have explained in our brief why we think those cases do not necessarily apply, but I think... this Court has never, to my knowledge, decided that question. But I believe... I would confess that the answer to that question must be the same. It would make no sense that... to have a regime under which the question of whether someone lived or died would be a matter of State law in one case and Federal law in the other. It would not be a sensible regime.
Stephen G. Breyer: Are the petitioners going to agree with that last statement?
Alan B. Morrison: I don't know, Your Honor. You'll have to ask them.
William H. Rehnquist: Thank you, Mr. Morrison. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.


Warren E. Burger: -- arguments in Number 72-77, Norwood against Harrison. Mr. Allain.
William A. Allain: Mr. Chief Justice may it please the Court. I think we should first realize what we do have in this lawsuit and what we do not have in the lawsuit. I direct the Court's or invite the Court's attention to the appendix at page 19 which contains the complaint of a lawsuit. The second paragraph thereof the plaintiff seek a temporary restraining order and preliminary and permanent injunction, enjoining the defendants from providing or permitting the distribution or sale of state purchased or owned textbooks to private, racially segregated schools or academies. This case is a fine drawn legal question. It is not a question of whether or not the 170 challenged academies have a racially motivated admission policy. It is one which deals basically with whether or not the State of Mississippi can lend text books to the pupils attending racially segregated private academies regardless, regardless of how they got that way. Now if the Court will look at the appendix, at page 22 in which the relief requested is that before textbooks can be allowed to, here they say, “Private schools and all students,” there must first be a showing to the District Court that the private school is racially integrated both as to students and faculty and in a conjunctive, has not have the effect of frustrating or impeding the establishment of racially integrated public schools. Now that, Your Honors is a burden that no private school in the United States that I believe, I know of could carry which shows a fine line which this particular case takes. They are saying they won’t relieve to this extent, unless the private schools now can show that they have an open enrollment admission policy, but that they must be racially integrated both in faculty and in students.
Byron R. White: Let me make sure of what your position is. Let's assume that you do have some schools where -- that do not have an open admission policy, what about that?
William A. Allain: If the Court please, I do not think that is a question in this lawsuit but if we did have that --
Byron R. White: Why is it not the question in this lawsuit?
William A. Allain: Because the lawsuit was drafted and framed by the plaintiffs and is shown by the appellants brief, the question before this Court does not deal, does not deal, does not deal with what the race -- what the admission policy of the school is, it is on the theory --
Byron R. White: Well, don’t you think that question fairly subsumes the idea that the -- at the very least the Equal Protection Clause is violated in connection with those schools, if any which do have a closed admission policy?
William A. Allain: No Your Honor I don’t, except the reason that in the --
Byron R. White: Well let’s assume that we didn’t agree with you and that it does subsume that question?
William A. Allain: If it will subsume that question I think we would still be on solid ground with the teachings of these Court cases in Allen and the Cochran case.
Byron R. White: So even with respect to schools if any that has a closed admission policy?
William A. Allain: That is right Your Honor because it is aid to the pupil and not to the school the same rationale of the Allen case, the Cochran case out of Louisiana, 1930 dealing with textbook. The Allen case by Your Honor you wrote that of -- of that opinion in 1960.
Byron R. White: Do you find anything in the Allen case that indicated the schools there had a closed admission policy?
William A. Allain: No, we did not Your Honor. But the rationale there did not deal with the -- whether or not the admission policy was closed or open, the rationale as I understand Allen and I hate to debate with the author of the opinion but that the mere fact that it went to the pupil and not to the student.
Byron R. White: Now, if you read -- if you read the argument further advanced in Lemon against Kurtzman.
William A. Allain: Yes Your Honor you did.
Byron R. White: About closed admission policy?
William A. Allain: Right. But I -- the rationale of the Allen case if we understand, the Cochran case, Mississippi’s Chance case, the -- all the cases that -- the transportation case is that it is aid to the pupil and the student or the parent and not to the school.
Byron R. White: Yes.
William A. Allain: Now, I say that I do not to believe the issues framed here or is brought as Your Honor addresses himself for the simple reason that there is no proof in this case. No attempted proof by the plaintiff to show what the particular admission policy was of the 107 academies. In fact, the proof is just the opposite shown by cross-examination by the defendants that that did have, the 107 have an open enrollment policy. It is either on the minutes, it is oral, verbal and sometimes it went so far as be advertised in the newspapers. So I think from the fact that the case in the lower court was not tried on that issue. There was no attempt to show by the plaintiffs that that was a closed admission policy. This case is drawn on the same fine lines of the tuition cases in which the courts held that the mere fact that they were racially segregated, not how they got there, but that is a different rationale, a different principle. For the simple reason in the tuition cases, the Coffey I, Coffey II, the Poindexter cases, Griffin case found that the State of Mississippi and the State of Louisiana and Virginia were operating not necessarily racially discriminatory white academies, but they had in one -- they're still operating a dual school system because in that case, under I guess the under the rationale of Burton case, the sifting of the facts and the circumstances show that they were actually in partnership with the private schools. The tuition was the basic income of the private schools. So instead of having an Allen case or instead of even having a Burton case, you had a Brown and Griffin case which did not depend upon a finding by the Court that there was an open or a closed admission policies for -- as the private school were concerned because of the mere fact that they were predominantly white, put the State of Mississippi and Louisiana in operating a dual school system again under the freedom of choice. Now we say to the Court that we think that this case regardless of how it is taken is controlled by the line of cases of Allen and Cochran, the transportation and textbook cases and the plaintiffs try to get past the rationale and holding in those cases by saying, “Well this is a Fourteenth Amendment case and not a First Amendment.” I say to the Court that the First Amendment, the establishment clause of the First Amendment, now I know Mr. Chief Justice has spoke in the Tilton about the internal tension between the establishment clause and the exercise clause. But the establishment clause has been held by this Court as absolute. The exercise clause is not absolute as to actions of individuals and that’s in the Jacobs case which allowed inoculations and I think the Prince case against Massachusetts was the labor, the child labor. But you are talking about an absolute in the establishment clause and therefore we submit to the Court that the measuring stick for the establishment clause of the First Amendment is more stringent and more stringent than that of the Fourteenth Amendment whose contours as this Court has said have not been concretely established to allow for flexibility. The measuring stick apparently in the Fourteenth Amendment cases would be the Burton case where we must sift the facts and look at the circumstances to see whether or not a state has put itself in partnership with the academies. And counsel and the plaintiffs go further and say “Yes” but you are not controlled by Burton for the simple reason. Green and Swan say that the State of Mississippi has an affirmative duty. So it is actually not the Fourteenth Amendment per se which the plaintiffs are riding in this particular case. It’s the First Amendment with the gloss put up on it by Swan and Green upon any state which has had a dual school system.
Warren E. Burger: You referred to transportation a few moments ago, does the state furnish transportation to the students of these private schools?
William A. Allain: No Your Honor, there is no, the only benefits given by the state to any individual, enrolled in a private school are the textbooks.
Warren E. Burger: Now, could the state in your view lawfully furnish transportation to the students in this private schools, assuming now, limiting my question to those private schools that had an exclusion policy?
William A. Allain: I think that they could Your Honor. Under the rationale of the New Jersey case which held -- of course the Everson case which it held that transportation did not violate the establishment clause in the New Jersey case. But the affirmative duty doctrine is -- has never been completely defined by this Court. How far does a state have to go in order to do away with any, anything which interferes as the plaintiffs say that the academies interfere with the unitary school system in Mississippi. That taken to its logical conclusion and the plaintiff’s are asking and are saying that the state can give no aid. Now that taken to its illogical logical extension would be that they must cut off water, sewer, electricity. Now, I know this sounds absurd because Mr. Justice Rehnquist in the Moose Lodge case and Mr. Chief Justice in the Lemon case and Mr. Brennan in the concurring of the Lemon case stated that this were benefits which could flow to private schools, to church schools or anything else. But if we take this affirmative duty that the plaintiffs are tempting to urge upon the Court, then how far is it necessary for the State of Mississippi or Louisiana or any other state to go to get rid of what they say are the private segregated schools regardless of how they get there which is interfering --
Thurgood Marshall: (Voice Overlap) would your answer be stop giving money for textbooks?
William A. Allain: Your Honor, maybe it could stop there, I would not, what I am saying to the Court --
Thurgood Marshall: Is that what's in this case?
William A. Allain: That is what is in this case, but that is not --
Thurgood Marshall: Doesn’t have anything to do with sewers and water?
William A. Allain: Your Honor what is requested in this case does because of the rationale and what this case would stand for. In the affirmative duty --
Thurgood Marshall: You don’t think it could be written narrow enough to be limited to textbooks?
William A. Allain: No Your Honor I do not because --
Thurgood Marshall: (Voice Overlap)
William A. Allain: -- then you would get into transportation and then you would get into whether or not private schools should be charted in Mississippi. You would get into whether or not that the universities of Mississippi should accept the credits from these private schools. You would get in to all types of aid, if you want to call it aid which is being given to private schools in which they are participating in. I don’t see any of decision in this case could be so limited.
Thurgood Marshall: I thought you started your argument with saying that this a very narrow case involving a very narrow issue and you read on page 19 about textbooks. Are you now saying that it’s broader than that?
William A. Allain: No Your Honor I said it had a fine line drawn as far as a factual situation and because of that fine line as to factual situation, it would make any decision adverse to the state a broad holding. The fine line of facts makes the holding broader than is the facts were brought up then you might be able to this -- to limit the holding. For the simple reason that they are asking for an underlining that any aid given to the 107 private schools should be cutoff and when I say any aid, let us take for instance a really absurdity --
Thurgood Marshall: Could you show me that in the complaint, where they say any aid?
William A. Allain: Your Honor I’m not too sure that it’s in the complaint, but it permeates throughout the --
Thurgood Marshall: Well I thought you started your argument that we were limited to the complaint.
William A. Allain: No Your Honor I did not intend to say we were limited to the complaint. I merely intended to say that the factual situation is framed by the state.
Thurgood Marshall: But, well for your benefit it’s limited to the complaint and where is your benefit to go beyond the complaint, you go beyond it.
William A. Allain: No Your Honor I was -- the relief -- now in the relief, the relief does state. As you read in the relief it does go further and talks about until racially integrated both as to students and faculty. That is on page 22 of the appendix.
Thurgood Marshall: Perhaps you would stand not all of the (Inaudible)
William A. Allain: Your Honor it is speaking here that unless --
Thurgood Marshall: (Inaudible)
William A. Allain: Your Honor that is the request at this time. It is not -- is not beyond the scope to see the next lawsuit that would be before this Court citing this case as authority.
Thurgood Marshall: We don't have the next lawsuit, we have this one.
William A. Allain: Your Honor what I’m saying to the Court is though because of the fine factual situation the decision in this Court would precipitate immediately another lawsuit as to any other aid which was given to these private schools. Plus the fact that if and I think Mr. Chief -- Mr. Justice Stewart said yesterday that maybe this could go back and what the determination have to be made as to each particular school, it could not be made on this record sir.
Thurgood Marshall: Did you say a minute ago that there was no aid other than textbooks given to private schools in Mississippi, did you say that?
William A. Allain: I said the only aid that were given to students attending private schools in Mississippi was the textbook.
Thurgood Marshall: So that’s all before us?
William A. Allain: Sir?
Thurgood Marshall: That is all that’s before us?
William A. Allain: That is all before you in the --
Thurgood Marshall: (Voice Overlap) advice, your opinion as to what Mississippi can or cannot do in the future, do you?
William A. Allain: Your Honor I do not think and I do not want to argue with the -- Your Honor only is I do not think that it is an advisory opinion which in it -- it is an opinion in which a later suit, a later case can be built on for the simple reason of what the holding would be in this particular case that regardless of how these 107 academies came about, regardless of whether they had an open enrollment policy or not unless they were racially integrated and I don’t know how you get a private school racially integrated anywhere in America because its a choice by these pupils. It is usually a tuition that they have to pay and the people go there because of their choice. I do not know how that anyone could carry the burden with this type of decision by the Court would establish. So we say to the Court that even under the affirmative duty doctrine as the Court addressed itself to in Swan where the courts recognized that even under this we are -- the equity power of the Court is limited in what it can do. That they cannot ride that doctrine to the extent of saying that these 107 schools regardless, regardless of their policy of admission, regardless of how they became into being, regardless to how they are supported, are not the pupils attending are not entitled to textbooks. And remember this textbook law came into being in 1940 rather than 1942. It was amended in 1942 to bring in high schools. It came during a depression. It came with the benevolence of the state in order to help not only not just white children in Mississippi, but black and white children who were attending public and private schools. In fact I dare say that the --
Thurgood Marshall: Were there any black academies in the 1940, in Mississippi?
William A. Allain: I do not know about that Your Honor, I do know that for the --
Thurgood Marshall: (Inaudible)
William A. Allain: Your Honor I said as to public, its public education --
Thurgood Marshall: Oh! Alright.
William A. Allain: -- the typically, textbook went to public and private schools and I dare say that the black community, knowing Mississippi as I do that the effect upon the pocketbook was of more value probably at that time to the black parent than it was to the white parent. Now the inconsistency in the argument made by the plaintiffs is the fact that they want to exclude from this holding, one that catholic schools in Mississippi, why? Why do they have something like 12,000 students, 10,000 whites and well, two to two-and-half black? There is no showing that they are integrated. In fact the record will probably show they're predominantly segregated. So if this type of academy is what they are oppressing on the Court, what makes any difference whether or not it’s the catholic schools? They had excluded two, I think, predominant black schools. Why exclude them, aren't they taking out of the system pupils who should be back into public schools? They’ve excluded other academies, I think five other academies. So why is there an inclusion to be consistent with the principle that the plaintiffs are attempting to urge upon this Court? These academies, these academies are doing the same thing as the 107 academies would say are trying -- they challenge in this particular lawsuit. We say to the court that the statute was enacted in 1940 without any racial motives. It in no way established any dual school system and it no way established any racially segregated private schools. It has been even handedly executed throughout the years. I would further say to the Court that there is one finding by this Court, by the District Court which we think that unless it's manifestly wrong, this Court should affirm and this Court I think has been on record since the Brown decision in saying the District Court and the trial court is a court that must look at the factual situation. This Court recently said in the Right case, gave great weight to the findings of fact by the District Court and one of the findings in that case, the third finding I believe said that we look at the timing, when was this new school system created? There’s no timing problem in this particular case because it was way back in 1940. The District Court found in its opinion that since the issuance of free textbooks to students attending private schools has failed to defeat the establishment of a statewide unitary school system in Mississippi and since plaintiffs are themselves receiving their free textbook, there is serious question as to whether plaintiffs are threatened with the irreparable injury which is requisite to injunctive relief. Further the Court found there is no showing that any child enrolled in private schools, is deprived of free textbooks would withdraw from private school and subsequently enroll into public schools now unitary. Further there is a finding by the Court in the evidence in the lower court, I mean in the depositions that the withdrawal from the pupils of this particular aid would not in anyway which is just $6.00 a year per pupil substantially effect the 107 private schools which are under attack in this particular lawsuit. We say to the Court in closing that we feel that the opinion of the District Court is bottomed on the facts in that particular case and the law has been the teachings of this Court. And that even in the two Poindexter cases which this Court affirmed, Judge Wisdom speaking for the District Court in similar situations in Louisiana that had a dual school system in tuition cases, distinguished those particular cases from textbooks and free luncheon and the other benevolent gifts that had been given to charitable and educational institutions throughout the years. We say to the Court we think this judgment of the District Court should be affirmed.
Lewis F. Powell, Jr.: Mr. Allain, I think the record shows that there are 534,000 pupils in the public schools in Mississippi. Does the record show the breakdown as between whites and blacks among that 534,000, what percentage?
William A. Allain: I don’t recall Your Honor the percentage. I do recall there was a thousand different schools involved in it and only 35,000 in the private school, but I’m not sure of the particular breakdown of the -- population of Mississippi breakdown is something like 60:40 of the 1970 census or 62:38. I am not --
Lewis F. Powell, Jr.: That’s the total population?
William A. Allain: Total population breakdown white to black. I would think that the school enrollment maybe somewhat above that. It might be a 60:40 or 55:45.
Warren E. Burger: Thank you Mr. Allain. Mr. Leventhal you have about 10 minutes left.
Melvyn R. Leventhal: (Voice Overlap) Your Honor.
Potter Stewart: I have a question.
Melvyn R. Leventhal: Yes sir?
Potter Stewart: May I ask you, referring to page -- to the complaint which starts on page 19 of the appendix in paragraph two on page 19. You said I -- what you're seeking which is a temporary restraining order on -- to prevent the sale or distribution to private racially segregated schools on the counties and then over on page 22 when you set down the -- your prayer for relief, you were asked for an injunction against the distribution of textbooks to students in schools unless those schools first established that the private school is racially integrated both as to students and faculty. Now to me, those mean two separate things. In other words, I should suppose that a school could in fact have nothing, but Negro children and yet not be a segregated school, but certainly it would not be an integrated school. A school could in fact have nothing but white children and yet it could -- it might not be a segregated school although clearly it would not be an integrated school. To me those are two quite, one is different concept from the other and they both appear here in your complaint.
Melvyn R. Leventhal: Your Honor we agree with that distinction the Court makes. However, what we’re trying to get out is subterfuge, alleged policies of open admissions. Now in the Green versus Kennedy case, a three-judge District Court established a series of requirements that private schools would have to satisfy in order to be eligible for tax exempt status. The record shows, according to Commissioner Thrower that there are five or six academies which have qualified for tax exemption which by -- which only the most naive would consider truly open. The Indianola Academy for example has satisfied the requirements of Green versus Kennedy. The Indianola Academy is presently a tax exempt institution. If you look at our brief, page 18, you will find an analysis of what occurred in the Indianola school district. The Indianola Academy presently enrolls all white children residing in the municipality of Indianola and that academy’s enrollment tripled in the middle of the school year immediately upon this Court's decision in Alexander versus Holmes County. Now we submit that what we’re really getting at here in trying to establish a standard for a private academy is to be certain that the standard of proof of open admissions is very, very high that there is no excuse for IRS’ approval of the Indianola Academy as a school with an open admissions policy. According to IRS data, there are at least ten schools which are clearly segregationists which are presently tax exempt not withstanding Green versus Kennedy.
Potter Stewart: In Mississippi?
Melvyn R. Leventhal: Yes Your Honor, one of them is Indianola Academy.
Potter Stewart: Well, there's ten but you talked about a 107?
Melvyn R. Leventhal: I’m saying that as long -- we agree with the Court's distinction that a school can be in fact segregated and not be segregationist. At the same time, we ask the Court --
Potter Stewart: How could be in fact all Negro or all white and yet have an open permissions policy?
Melvyn R. Leventhal: Yes Your Honor, we concede that.
Potter Stewart: And what do you understand in the meaning of racially integrated both as to students and faculty, to mean?
Melvyn R. Leventhal: We view that as the standard of proof that ought to be required of the school like the Indianola Academy. If the Indianola Academy says it has an -- it says has an open admissions policy, it ought to prove it not with merely the policy but with an integrated student body (Voice Overlap) --
Potter Stewart: As to have what, how many? Has to have at least some students and some faculty of both races, is that --
Melvyn R. Leventhal: Yes Your Honor.
Potter Stewart: At least some, is that your --
Melvyn R. Leventhal: Yes Your Honor.
Potter Stewart: And is this true about not only on the Indianola Academy but everyone of the private schools in the State of Mississippi, no matter how long they’ve been there and how well established their policy might be?
Melvyn R. Leventhal: No. I think we’ve got to read that requirement in conjunction with other historical data. You see we have a network of private schools in Mississippi which were formed at a critical moment or which expanded enrollment at a critical moment and I’m referring to a standard to be applied to such academies.
Warren E. Burger: Are you using the term in your complaint at page 22, the term integrated as synonymous with desegregated, in pursuing your points with Justice Stewart as I’m not quite sure of your answer.
Melvyn R. Leventhal: Yes Your Honor.
Warren E. Burger: In other words, if that can be read as though the word integrated were stricken and the word desegregated were inserted, is that the way you want us to read it?
Melvyn R. Leventhal: Yes Your Honor.
Warren E. Burger: That’s what you intend.
Melvyn R. Leventhal: That’s what we requested. However --
Byron R. White: But the District Court held it irrelevant anyway (Voice Overlap) --
Melvyn R. Leventhal: Yes Your Honor.
Potter Stewart: Yes.
Byron R. White: Isn't that what you're objecting to, let say, the District Court said the – it doesn’t make any difference whether they have an open policy or closed policy, books can go to any school.
Melvyn R. Leventhal: That’s right.
Byron R. White: That was the holding?
Melvyn R. Leventhal: Yes, that’s correct and in fact --
Byron R. White: And now, if let’s assume we did not agree with that holding, are you asking us to say that on the other -- there on the other end of the spectrum that it's irrelevant whether any of these schools have an open admission policy?
Melvyn R. Leventhal: Oh! No sir, by no means, by no means. Now we want to make it clear that our objective is to eliminate textbook aid to segregationist academies or segregated academies. The question of what standard should be applied to determine what is a segregated academy is not essential to our lawsuit by no means.
Warren E. Burger: Do you concede the possibility that some of these schools might be able to make a showing that they had an open admissions policy? I’m simply saying a possibility.
Melvyn R. Leventhal: Conceive -- Yes Your Honor, conceivably.
Byron R. White: Are you suggesting that in order that a District Court in order to keep an order, an integration order from being frustrated that order children not to move to a private school even it had an open policy?
Melvyn R. Leventhal: No Your Honor.
Byron R. White: You’re not?
Melvyn R. Leventhal: No sir. We are recognizing in this litigation the right of children to attend segregated schools. We are challenging their right to attend such schools with state aid. That’s the thrust of our lawsuit.
Harry A. Blackmun: Mr. Leventhal, am I correct, is there not in the record an intimation that some 41 schools did not participate in this textbook program?
Melvyn R. Leventhal: Yes, Your Honor.
Harry A. Blackmun: Is that of any significance? Do you know why were they denominational schools for instance supported something else or what?
Melvyn R. Leventhal: Your Honor, it’s conjectural. It’s just as the defendants suggest that it means that they’re not important. I could suggest one that several academies receive textbooks until recently and in anticipation of this lawsuit decided, it would be best to withdraw from the program to avoid the shock of an adverse decision. So that -- why these 41 schools don’t participate would be --
Harry A. Blackmun: What kind of a shock, not the financial one certainly?
Melvyn R. Leventhal: Your Honor the -- a school which grows dependent upon a particular type of aid might be reluctant to wait for a decision of this Court which they believe would be adverse to withdraw from the program. In fact there’s nothing in this record which would indicate that any private school has stated that the textbooks are unnecessary or undesirable. There is no evidence one way on the other on why these schools do not receive the textbooks.
Warren E. Burger: Thank you, thank you gentlemen. The case is submitted.