William H. Rehnquist: We'll hear argument next in Number 97-288, Vicky Lewis v. Brunswick Corporation. Mr. Hudson, you may proceed whenever you're ready.
David E. Hudson: Thank you, Mr. Chief Justice, may it please the Court: Plaintiffs' claims that Brunswick negligently failed to protect against propeller guard injuries in the circumstances of this case should not be preempted for three reasons. First of all, the claims we are bringing in this case do not conflict with any Federal regulation. Under Freightliner, there's no preemption. Secondly, the text of the preemption clause, section 4306 of the act, does not, much less clearly and unambiguously, reach the body of State law of general application, common law damage claims. Our position there is consistent, we think, with all of the preemption cases of this Court. Thirdly, in this case the reading that we submit for the preemption clause is confirmed by a particular savings clause, where Congress specifically and without qualification provided that compliance with the Boat Safety Act regulation is no defense to common law claims. In this preemption case, as in every case of statutory interpretation, surely the starting point is the text of the act itself. We submit in this case it is also the ending point. Starting with a statement of purpose in the policy declaration--
William H. Rehnquist: Mr. Hudson, we have a good amplifying system. I think we could hear you even if you didn't speak quite as loud.
David E. Hudson: --I will tone it down--
William H. Rehnquist: Okay.
David E. Hudson: --Chief Justice. Starting with the policy declaration in section 2 of the act, Congress spoke of reciprocity and comity, signal words that State law has a role to play. It spoke of developing and enforcing Federal and State laws, again signalling that State laws would have a role to play. And then throughout the act Congress over and over again speaks of the enactment of positive regulations both by the Federal Government and by the State, never any reference to common law claims.
Sandra Day O'Connor: Well, but we've certainly held in Medtronic and in that Cipollone case that State common law actions can constitute requirements subject to preemption.
David E. Hudson: Yes, Your Honor, there has a been a holding that the common law can lead to a requirement. I don't think that--
Sandra Day O'Connor: Can lead to? It is. I mean, they are requirements, and I don't see why we should necessarily create... treat this statute differently in that regard.
David E. Hudson: --Well, for a couple of reasons. The language used in this statute is different than the language used in both Cipollone and in Medtronic. In this statute, Congress says that there may not be a State law or regulation. In both Cipollone and Medtronic it was a requirement which arose under State law and this Court has, in a number of cases, not only in Cipollone but following that in Medtronic, English v. GE, Goodyear v. Miller, Silkwood, has explained that common law is a traditional State area. If we were to obtain a judgment in this case, Brunswick would not be required to put a propeller guard on any of its boats in any State, or in any jurisdiction. It would have the discretion as a manufact--
Anthony M. Kennedy: Well, I... isn't the whole purpose of your punitive damage claim to require the manufacturer to change his behavior?
David E. Hudson: --Even then--
Anthony M. Kennedy: Isn't that what you're going to argue to the jury?
David E. Hudson: --Even then, Your Honor, it may not be necessary that they actually install a propeller guard. It may be enough that a warning be issued putting consumers on notice that if you are thrown or fall out of this boat there's a danger of this type of injury. We assert in our complaint that they had this knowledge, and they had--
Anthony M. Kennedy: Well, I take it that the main thrust of your argument below is that the propeller guard should have been installed. You're going to change the behavior of the manufacturer. That's the whole justification, at least for your punitive damage award, punitive damage claim.
David E. Hudson: --To award compensation to the injured victim is the first purpose. The punitive damage claim is a heightened incentive to do the steps that are necessary to protect persons who use the boats. It would have that impact. But as this Court acknowledged in Silkwood, punitive damage is a customary part of the State common law damage scheme and just because it's a punitive damage claim married with a claim for general damages does not create any heightened point of reference to preempt a State law claim.
Stephen G. Breyer: On that very point, if... imagine that the Coast Guard here had said what it didn't say, but suppose it said we think that the guards on these propellers are actually a greater danger than an unguarded propeller because somebody can get hit on the head, and that's a bigger chance of harm than the other, so suppose because of that they'd said very clearly, we don't want guards. Now, on your view of the statute a jury would be perfectly free to award punitive damages against the manufacturer because he did the very thing that the Coast Guard told him to do. Now, what sense would that make of the statute?
David E. Hudson: Under that reading it wouldn't make sense, Justice Breyer, and I'd like to--
Stephen G. Breyer: So how do you prevent... how do you read it your way, which is to say, it preserves common law claims, and yet avoid what you've just said is a ridiculous result?
David E. Hudson: --May I assume in your question that you are referring to the Coast Guard adopting a regulation saying thou shalt not have propeller guards, and then not as a matter of preemption, but I think as a matter of the Supremacy Clause and cases like American Airlines v. Wollands and the case that was cited from 1907. If the State attempts to do something it is in conflict with the regulation by Supremacy Clause analysis--
Stephen G. Breyer: What happens to your savings clause here? You said that the savings clause preserves all common law remedies and so why hasn't Congress, on your view of it... I mean, what then does the savings clause mean? You started off pointing to that savings clause which refers to common law and State law--
David E. Hudson: --Well--
Stephen G. Breyer: --and... yes. So you see my question.
David E. Hudson: --It's... I think you have to go one word further. Back in the savings clause it refers to liability under common law or State law, is what is preserved, and--
Stephen G. Breyer: Well-- --You mean, it reads punitive damages out?
David E. Hudson: --No. I think it is... that is a liability claim under State law, but you asked what is the purpose of the savings clause if you cannot bring a claim that is diametrically opposed to a Federal regulation, which is not our case. I concede that if--
Stephen G. Breyer: I'm trying to get your view on it. I thought your view was that the common law was simply preserved. Now I take it your view is that the common law is simply preserved in the absence of a specific determination by the Coast Guard. Is that your view? That's a different view.
David E. Hudson: --No, sir, I think that is our view, Your Honor.
Stephen G. Breyer: So in other words your view is that the savings clause does nothing if the Coast Guard... it... the savings clause is necessary, I guess, in your view. It's just that this prempt... a straight rule of the Coast Guard preempts the tort remedy, but other than a straight rule it doesn't, is that the view?
David E. Hudson: Well, it depends on whether or not there's a conflict, because if they say thou shalt not have a propeller guard, then our claim would be barred.
Sandra Day O'Connor: Suppose it simply-- --Well, but you told me that State common law couldn't be a requirement and could never have any preemptive effect, so you can't have it both ways.
David E. Hudson: Well--
Sandra Day O'Connor: Now, I take it you're backing off that position and you're saying, well, if it really is in direct conflict, then maybe common law rules can in fact be requirements or regulations under--
David E. Hudson: --Fortunately, that's not our case, but I do--
Sandra Day O'Connor: --No, but even if--
David E. Hudson: --I do concede--
Sandra Day O'Connor: --Even if we think that, that doesn't end the case for you because you have another theory here, right?
David E. Hudson: --Well, our theory is that there is no conflict.
David H. Souter: No, but before you get to... I thought that your position was that the savings clause requires us to read the statute in such a way that the reference to regulations or standards does not necessarily encompass every common law rule. Do you go any further than that?
David E. Hudson: No, we don't, Justice Souter.
David H. Souter: Okay.
David E. Hudson: That is statutory evidence, along with some pretty extensive legislative history, that all concerned thought that common law claims would survive even after the adoption of this act. It is additional authority for the proposition that what was preempted in section 4306 were positive enactments under a State legislative law on affirmative regulation.
Antonin Scalia: And what do you do with the phrase, or under State law? I didn't understand your--
David E. Hudson: Justice Scalia, you backed up in that statute.
Antonin Scalia: --You just say you have to read it with the word--
David E. Hudson: Liability.
Antonin Scalia: --liability. I don't... that doesn't make any sense to me. I don't--
David E. Hudson: For example, Justice Scalia, in our case we are bringing a negligence... we have a negligence count. We have a wrongful death count. The wrongful death count is a statutory claim in Georgia. It's been in existence for over 100 years, so that is a liability claim... that's certainly not common law. I don't think wrongful death was recognized at the common law.
William H. Rehnquist: --Well, you could call it a State law... it's positive State enactment rather than common law... couldn't you?
David E. Hudson: The difference, I think, Chief Justice, is it is not a law aimed specifically at boating requirements. What Congress was addressing in 4306 was acts and regulations enacted by a State and particularly applied to boat safety. These are laws of general application, much as has been said you might have a zoning law or a general safety law. These are different from what Congress preempted in the section under question.
David H. Souter: Of course, that reference to State law might be an indication that the only... that the general preemption clause should be read to mean that there is no preemption unless there is a positive enactment of Federal law. That might be one indication of... and that's not the way the Coast Guard read it right after the act, after the passage of act, but it could mean that too, couldn't it?
David E. Hudson: I think that is the most logical reading, because when you read 4306 in conjunction with 4305, what you are permitted to obtain exemption from if you apply to the Coast Guard is from existing rules and regulations of the Coast Guard. Furthermore, if you read the statute where it says at the conclusion, unless identical to a regulation comprised under section 4302, that's surplus. If what Congress intended to do was to say the only regulation we're going to have are positive enactments of the Coast Guard, then you don't need that language in the statue that says, unless identical to the regulations prescribed under this section.
David H. Souter: Well, you could read it either way. I mean, there's an ambiguity there. I suppose you could read it as saying, all State law goes unless the Coast Guard has adopted a regulation and State law is identical to that regulation, or you could read it as saying, all State law stays unless there is a Coast Guard regulation and in that case the only State law that stays is that which is identical. You could read it either way, I suppose, textually. The reference to State law in the savings clause as distinct from common law might be an indication of which of those two possible readings you should take, i.e. that the State law is preserved in the absence of a positive enactment with conflict.
David E. Hudson: To that I would respond, Justice Souter, that the former reading, why do you need State laws that simply parrot an existing Federal regulation that has been enacted by the Coast Guard.
David H. Souter: Mm-hmm.
David E. Hudson: The conduct is being regulated. I would further say, if you have a statue that can be read both ways under the clear and unambiguous standard that this Court cites in every one of its preemption cases, that in itself proves that at the very least this would be an ambiguous statute.
David H. Souter: If that's what we mean. You don't... we don't have to resolve that question, I take it, to decide in your favor, because the Government is taking the position, I assume, that the Coast Guard is right when the Coast Guard says, we're the only ones in the standard-setting business, so to reach your common law claim we don't have to decide--
David E. Hudson: That is correct, because from the time of the enactment of the act and through the present time the Coast Guard has never taken the position that common law claims of general application of State laws are preempted.
Ruth Bader Ginsburg: --May I ask you about the... whether the Georgia... the question of Georgia law of... to introduce to this jury the fact that the Coast Guard did not make a regulation requiring propeller guards would be relevant, wouldn't it?
David E. Hudson: At least the underlying facts that caused the Coast Guard not to do anything, and the Coast Guard decided not to do anything because they couldn't come up with a common solution and it might expensive and the data was incomplete. Now, the study committee said some other things, but the Coast Guard letter was general in that nature. Yes, I think the underlying facts about whether propeller guards are safe or not safe do come into evidence.
Ruth Bader Ginsburg: And the fact that the Coast Guard that has set other standards didn't set this one.
David E. Hudson: Yes, I think that could, because it will be a very limited application, even when it comes in, because the Coast Guard's action was very narrow in scope, the letter that adopted the position of the subcommittee that studied propeller guards.
William H. Rehnquist: Mr. Hudson-- --Are you responding to Justice Ginsburg's question by saying what you think is desirable, or what you feel you know about the Georgia law of evidence?
David E. Hudson: Well, I think I do know that much, Your Honor. In product liability cases in Georgia there's a recent supreme court decision we cite in our brief, and it allows all of these factors to come into evidence, whether they are other designs, whether they are Federal regulations, or Federal authorities. The whole mix goes into the jury's determination of whether or not this was too dangerous for use under this application.
Antonin Scalia: Mr. Hudson, 4305 is discussed in all the briefs. I can't find it set forth anywhere. Is it set forth in any of your submissions? It's very annoying to have a lot of discussion going on about a particular statutory provision and you look in the materials in front of you and it's just not there. Is it in the red brief?
David E. Hudson: Your Honor, I can't... we'll look in the blue brief. I think 4305 is the statute that allows the regulations to be established. Other than the fact that--
Antonin Scalia: It's the one that permits the State to apply--
David E. Hudson: --For an exemption.
Antonin Scalia: --For an exemption.
David E. Hudson: Okay. That's right.
Antonin Scalia: Right.
David E. Hudson: It's... if we haven't set it forth, Your Honor, that's an oversight, but it simply says the Coast Guard can grant an exemption from an existing act or a regulation that the Coast Guard has adopted, not an exemption from the wiping-of-the-slate clean notion that Brunswick submits in this case.
Antonin Scalia: Well, I'm still looking for it.
David E. Hudson: I'd like to reserve the balance of my time.
William H. Rehnquist: Very well, Mr. Hudson. Mr. Frederick, we'll hear from you.
David C. Frederick: Thank you, Mr. Chief Justice, and may it please the Court: Justice Scalia, it's at page 2 of the red brief. Actually, sorry, page 1 of the red brief, 4305. We agree with petitioners that common law claims are not expressly preempted or impliedly preempted by Coast Guard regulations that don't exist in this case. Congress had two very good reasons to differentiate between positive law enactments and common law remedies that might be available. The first is that common law remedies give manufacturers a choice as to whether or not they would change their product design or to install some particular equipment. They could make a cost-benefit analysis of whether assuming the risk that their product might cause a danger and thereby incur liability is worth the cost of redesigning the equipment or putting on some type of propeller guard, and that--
William H. Rehnquist: What about punitives? We've heard that argument before. We heard it in Cipollone. We hear it in every case where the issue is whether common law remedies are precluded, and we have not found it persuasive.
David C. Frederick: --Well, Justice Scalia--
Antonin Scalia: I mean, it's true, you can roll the dice if you like. I suppose you can say the same thing about an explicit regulatory prohibition and there's especially very little difference when you have punitive damages. I mean, I could ignore a regulation, too, can't I, and say it's a cost of business. A cost of doing business is now and then I'll get picked up for violating the regulation. It's worth it. I can say that about a regulation just as well as about a common law liability.
David C. Frederick: --Justice Scalia, I'm trying to set forth the reasons why in 1971, when Congress enacted this statute, it may have differentiated it. The second is that it legislated against a backdrop, the historical traditions of the country that if people were injured they would have the ability to bring a tort claim, and so the words that it used in setting out in sections 4302, 4306, and 4311(g) used words that suggest positive law enactments would be preempted in 4306 and that common law liability would be saved--
Stephen G. Breyer: Is that true even if the Coast Guard has a particular rule? I mean, suppose the Coast Guard said, look, this is obviously a tough question whether you should have propeller guards or not. People are killed both ways, and if the... you don't want to make a mistake. So the Coast Guard says, we don't want it. We think more people are killed with the propeller guards than without. Are you saying under those circumstances in your view a State is perfectly free to award $50, $60, $100 million in punitive damages for doing the very thing the Coast Guard said not to do?
David C. Frederick: --No. We think implied conflict preemption--
Stephen G. Breyer: Ah.
David C. Frederick: --principles would be applicable.
Stephen G. Breyer: So in other words it's just the fact they don't have a particular reg here that this turns on, in your opinion.
David C. Frederick: Well, the savings clause should not be read to eviscerate the power that Congress gave the Coast Guard to promulgate affirmative regulations, so that if in exercising that power that Congress gave the Coast Guard the Coast Guard promulgates a regulation that prohibits propeller guards, it would be anomalous to read the savings clause to bring it into conflict with that.
Stephen G. Breyer: So if they have a reg... suppose they do have a reg.
David C. Frederick: Yes.
Stephen G. Breyer: In your view, should we look to see whether that reg, there's a direct conflict with the State law or common law State... you know, the tort judgment, whether it... the State tort judgment would defeat an object of the reg, or whether the state judgment would be in an area that the reg clearly intends to reserve to the Coast Guard... that's your view of it?
David C. Frederick: That's correct. All of the--
Stephen G. Breyer: Okay. If that's your view of it, why doesn't that apply... and I think maybe that is a perfectly good view. Why doesn't that just as much apply to a State positive regulation as it would to a tort action?
David C. Frederick: --Because in 4306 the words that Congress used, it started out by saying, unless permitted by the Secretary, and everything else follows. It uses terms that parallel the terms that were used in 4302 which allow the Secretary to prom... to establish a safety standard. If you then look at 4306 you see the parallel reference to, a State shall not be allowed to do a law or regulation that establishes a standard or in 4302(a)(2) it says, or impose a requirement or require a... an associated equipment device. You then look at 4306. After the or, it says, or impose a requirement for associated equipment. In our view, the language the Congress used in 4302 was to say, these are the things that the Secretary is authorized to issue regulations about, and then in 4306 it says, unless the Secretary permits, a State can't do those things which the Secretary is empowered to do in 4302, and--
Antonin Scalia: The trouble I find with this analysis, that you rely just on implied preemption for common law, is that would be very peculiar in a statute which in 4306 insists that the State law be identical, that the State regulation, at least, be identical to the Federal law. I mean, it's really saying, we don't want any State regulation unless it's the very same one.
David C. Frederick: --Well, to the contrary, Justice Scalia. If a regulation that a State promulgates is written in words that are going to be easily compared with a Federal standard it would be very easy to determine whether it was identical or not identical. And the fact that Congress used the phrase, liability under common law in the savings provisions 4311(g), but did not use the phrase, common law to show that which was to be preempted in 4306 is further textual support for our view that those things which were to be preempted in 4306 were positive enactments of State law that would be done by State executive officers because, in fact, they will have to apply to the Secretary for the exemption from a preemption, and they are the ones who have to seek that authority in order to keep that in place, so it is true that--
William H. Rehnquist: Why would a State want to have a regulation that was identical with the Federal regulation?
David C. Frederick: --Mr. Chief Justice, the history of it is that the Coast Guard recognized that it lacked the resources in order to enforce all of these provisions with the tens of millions of boats that were out there, so in fact when the Commandant of the Coast Guard testified he urged Congress to provide a scheme that would allow States to promulgate parallel... an identical regulation so that State enforcement officers could go and help with the enforcement of the safety standards.
William H. Rehnquist: The States couldn't help enforce the Coast Guard regulation?
David C. Frederick: It wasn't clear at the time whether in the absence of that explicit authority and provision that State officers would have the incentive or necessarily the power to do that, so when the Commandant of the Coast Guard testified before the Senate committee he made very clear that what the concern that the Coast Guard had was the positive enactments that would be conflicting with State law. And he also made clear in response to a written question that was given to him in advance of his testimony so he had additional time to think about it that private remedies would be available to people if they were injured as a result of an unsafe device that was put on a boat. So we think the legislative history, the structure and the text make very clear that what Congress was intending to do in 4306 was to deal with State positive law enactments. I would like to address, briefly address the respondent's theory of the savings clause, because in our view it doesn't really make that much sense. They have two theories. The first is that the savings clause was intended to make clear that there was to be no affirmative defense. In our view, that is incorrect, because it was black letter law in 1971. It was in the Second Restatement of Torts in section 288(c), which was published by the American Law Institute in 1965. The compliance with a legislative enactment or a regulation would not relieve someone of liability if a reasonable person acting under the same or similar circumstances would do otherwise. So that theory for the savings clause really doesn't make much sense. There would have been no need for Congress to have added a specific savings provision. The second theory that they have is that the savings clause was intended to save against breach of warranty or manufacturing defect claims. Well, that theory in our view doesn't make any sense because you can't read 4306 to preempt those things, so--
Antonin Scalia: Do you think the American Law Institute always represents what is the view in almost all of the States? That hasn't been my experience.
David C. Frederick: --Well, I think--
Antonin Scalia: I mean, I think there would be real reason to put that in just in case a number of States were following it.
David C. Frederick: --Justice Scalia, even if you were to say that what Congress was intending to do was to put the ALI's view right into law, the words that Congress used made very clear that general provisions of common law liability are to be preserved, because it didn't say liability under common law, especially breach of warranty or product defect claims. It didn't create the kind of textual limitation that the respondents would read into the savings clause. So I think that if you look at the way that respondent's theory spells, you know, out what the savings clause was intended to do, there really wouldn't be that much of a reason to do it, and--
Stephen G. Breyer: What do you do-- --What do you do with... oh.
David C. Frederick: --Thank you.
William H. Rehnquist: Thank you, Mr. Frederick. When we return at 1:00, Mr. Geller, we'll hear from you.
William H. Rehnquist: Mr. Geller, we'll hear from you.
Kenneth Steven Geller: Thank you, Mr. Chief Justice, and may it please the Court: We heard 25 minutes of argument this morning from the plaintiffs and the Solicitor General explaining why it's perfectly permissible for the State of Georgia through its common law to impose a requirement that boats be equipped with propeller guards, but if Georgia can do this, then presumably South Carolina could through its common law impose a requirement that boats not be equipped with propeller guards for the reasons that, as the Coast Guard found, they make boats less safe. Now--
David H. Souter: Well, excuse me. I didn't know that the Coast Guard had found that at all. The Solicitor General's brief sets out a portion of the Coast Guard's letter stating the reason that it was going to take no actions. This is on page 7 of the SG's brief. At least in the excerpt there the Coast Guard didn't make any such finding. Is there more material?
Kenneth Steven Geller: --No, there's no... I should say the Coast Guard was relying, I believe, on unanimous recommendations from the... from its Subcommittee on Propeller Guards and from the National Boating Safety Advisory Council, each of whom had found that the use of propeller guards would demonstrably make boating less safe, and the Coast Guard--
David H. Souter: Well, that's right, but the Coast Guard--
Kenneth Steven Geller: --The Coast Guard--
David H. Souter: --gave its reasons. I mean, it said there was a deficiency of accident data, the difficulty of coming up with a single model, and so on. It didn't, as I understand it, adopt any finding that in fact it would be more dangerous in some cases--
Kenneth Steven Geller: --That's--
David H. Souter: --so I don't think we can attribute that to the Coast Guard.
Kenneth Steven Geller: --That's true, Justice Souter, although it did find... it did agree with the recommendations of the underlying committees that it shouldn't impose a prop guard requirement. But my point is simply that the accident in this case occurred on a body of water that forms part of the border between South Carolina and Georgia, and the plaintiffs and the Solicitor General don't bother to explain how a manufacturer could possibly build a boat that could operate on that body of water and still comply with these divergent State law.
William H. Rehnquist: What if there had been no Federal statute at all? A boat manufacturer would still have a difficult time complying with both--
Kenneth Steven Geller: Yes.
William H. Rehnquist: --South Carolina and Georgia law were they different.
Kenneth Steven Geller: But it was the very purpose of this statute, Mr. Chief Justice, the very purpose of this statute to avoid that sort of a problem. In fact, the Senate report specifically says in this case it assures that manufacturers for the domestic trade will not... will not involve... will not have to worry about compliance with widely varying local requirements. That's our precise point. It was the purpose of this statute to avoid a situation--
Sandra Day O'Connor: Well, yes, but the Coast Guard did not, in fact, adopt a regulation on this specific device, and I don't know that South Carolina have a different rule. Does South Carolina have common law principles that say you must have a propeller guard?
Kenneth Steven Geller: --No, it doesn't, and no, I think that would be preempted if it did as well. My point is simply to explain why there's a need for a national uniform rule here, which Congress recognized in passing this statute. It's so you have one single rule that manufacturers can follow throughout the United States.
Sandra Day O'Connor: Yes, but it clearly envisions that the Coast Guard might not take action with regard to the whole universe of possible actions it could take, and we have a situation here where it didn't take action.
Kenneth Steven Geller: But the language--
Sandra Day O'Connor: And that may leave open some room for application of State law.
Kenneth Steven Geller: --I think that the language of the preemption provision, Justice O'Connor, specifically addresses the situation and provides, as the Solicitor General acknowledges, the Coast Guard has always interpreted the provision according to its plain... the Coast Guard has always interpreted the provision according to its plain language to preempt State law involving design and equipment requirements even in the absence of a Coast Guard regulation because of this congressional desire to have uniform national requirements. In fact, this act was passed in 1971. The day after the act was passed... the day after... the Coast Guard issued a regulation under section 4305 exempting all existing State requirements from preemption, because--
David H. Souter: Well, of course, that included, as I understand it, State regulatory requirements in the narrow sense, so that it did not necessarily imply that the Coast Guard thought that it was necessary to do that to preserve any State common law.
Kenneth Steven Geller: --There was no... it simply exempted all existing State requirements. There was no specific discussion of statutes, regulations, common law. The point is--
David H. Souter: Right, and that's... I mean, my only point is, I don't think you can infer from that that the Coast Guard ever took the position that a common law requirement was, in fact, preempted.
Kenneth Steven Geller: --No. I'm taking from that the understanding, which has been in existence since the beginning of the statute, that even in the absence of a regulation section 4306 would provide for preemption from State law. That was the point that I think comes through clearly.
Antonin Scalia: Mr. Geller, doesn't it... it's a little unrealistic to talk about a requirement imposed by State law anyway. It's not as though... I mean, even within the State of South Carolina a manufacturer wouldn't know whether to put on or off the propeller guard, because one jury, the first jury may find it was negligent not to have it, and that... certainly that finding that it was negligent not to have a propeller guard does not prevent a subsequent South Carolina juror, jury from finding that it was negligent to have a propeller guard, isn't that right?
Kenneth Steven Geller: That's true. That's why it seems completely irrational for Congress to have prohibited State legislatures or State boating commissioners from entering this area, because it was concerned about the need for national uniform regulation, one rule that every manufacturer could follow throughout the United States, and to create an exception for common law rules, which is I think the point that Justice Breyer made last year in his separate opinion in Medtronic, but--
David H. Souter: But isn't the argument for exception oddly enough supported by the advisory committee's report here, and that is that the designs of boats vary so enormously that it would be difficult, if not impossible, to have a uniform rule in the sense of saying, all boats should have propeller guards, or all boats should have this kind of propeller guard. The kind of multifarious context here suggests exactly what common law adjudication is intended to serve, and that is quite fact-specific adjudications when no uniform rule really could sensibly be written to cover it.
Kenneth Steven Geller: --Two requirements, Justice... two responses, Justice Souter. The first is I think that misstates what the advisory committee, commission did here. It tested every type of propeller guard in existence, and it concluded that there was no feasible workable propeller guard that could be used on any type of motor boat, so I don't think it's fair to say that it simply said there wasn't one that could be used on every boat. It tested every single--
David H. Souter: Well, I thought they... and you know this better than I do. I thought they said that in some cases the guard would in fact make it much more dangerous than it was.
Kenneth Steven Geller: --Exactly.
David H. Souter: But not in all cases.
Kenneth Steven Geller: In every case in which a motor boat was going more than 10 miles an hour. In other words, they didn't find any application in which it would be safe to require that a motor boat be equipped with a propeller guard. But the second answer to your question, Justice Souter, frankly is that this is an argument that I think... and Justice Scalia said this this morning... the Court has heard many previous times when faced with statutes of this type and has never drawn an exception between statutory requirements and common law requirements.
John Paul Stevens: But we have emphasized the language in the particular statutes.
Kenneth Steven Geller: Yes, and the language in this statute I think is indistinguishable, Justice Stevens, from--
John Paul Stevens: Does it have the word requirement in it?
Kenneth Steven Geller: --Yes. The list... this statute does. In fact, it might be useful to focus on the specific language at issue here, because I think it answers a lot of questions. The section--
Ruth Bader Ginsburg: Mr. Geller, as you do that--
Kenneth Steven Geller: --Yes.
Ruth Bader Ginsburg: --can you tell me if there's another statute that uses the word, minimum safety standards, because I thought that gave some kind of a tone to it.
Kenneth Steven Geller: Yes. The statute, for example, that was at issue in Ray v. Atlantic-Richfield, which this Court considered 20 years ago, had that very language in there, and the Court said that didn't mean there was no preemption. It simply meant the manufacturers--
Ruth Bader Ginsburg: No, everyone agrees that there's a preemption pro tanto. That is, to the extent the Coast Guard has a standard, the State can't have a different one.
Kenneth Steven Geller: --Yes.
Ruth Bader Ginsburg: But the word minimum suggests to me that there could be other things, that every--
Kenneth Steven Geller: What the Court--
Ruth Bader Ginsburg: --That those standards must be followed, but there could be additional standards.
Kenneth Steven Geller: --That's not the argument... the Court rejected that very argument in Ray v. Atlantic-Richfield, Your Honor. They're minimum in the sense that manufacturers could add to that. They're not minimum in the sense that States could add to that. That would make... there would be no reason for preemption if they were... if that reading of minimum standards were correct. There would be no reason to have a preemption clause in there.
Ruth Bader Ginsburg: The reason could be that these standards are in place, but we're not saying that that's the universe, that there can't be liability apart from these standards. Let me ask you something just as a matter of updating. As I understood the propeller guard, it wasn't dead, that there's still current consideration in the Coast Guard?
Kenneth Steven Geller: Yes. Yes, absolutely.
Ruth Bader Ginsburg: Where... what is the status of that now?
Kenneth Steven Geller: As recently as last August, Justice Ginsburg, the Coast Guard again asked for comments from people as to whether there would be a workable type of propeller guard that the Coast Guard could consider.
Ruth Bader Ginsburg: And that's just--
Kenneth Steven Geller: They haven't yet issued any regulation presumably because they haven't yet been satisfied that they can meet the standards of 4302, which is to say that the requirement that the propeller guard would actually advance the interest of boat safety.
Ruth Bader Ginsburg: --All we know is that they asked again.
Kenneth Steven Geller: Yes.
Ruth Bader Ginsburg: And we don't know anything about the answers.
Kenneth Steven Geller: No. I don't believe anything has happened since August of 1997. Let me just focus if I could the Court on the language of 4306. It's reprinted in a number of different places, including page 6 of the red brief, and it's helpful to focus on the language. This language, Justice Stevens, is I think identical in respect to the language that the Court had before it in Medtronic and in Cipollone. Section 4306 has a broad requirement that... broad preemptions that the State may not establish or enforce a law imposing a requirement for associated equipment, which is... no one disputes that a propeller guard here is associated equipment, and the Court has held in Cipollone, in Easterwood, in Norfolk and Western Railway, in Medtronic, that the word requirement in those very similar statutes includes common law claims. In fact, I don't know of any case in this Court that has ever construed the word requirement to include only positive law, and the Court on a number of occasions has rejected that very argument. The Court--
Antonin Scalia: Well, you take-- --A law or regulation establishing--
Kenneth Steven Geller: --Law or--
Antonin Scalia: --A law or regulation establishing--
Kenneth Steven Geller: --Yes. I think the--
Antonin Scalia: --the requirement?
Kenneth Steven Geller: --I think the language in Medtronic was very, very similar. The law here is the common law, which establishes a requirement for associated equipment.
Sandra Day O'Connor: Well, you take the position, Mr. Geller, that regardless of whether... what we think of the action or inaction of the Coast Guard on this propeller guard business that any common law requirement for a propeller guard by a State is preempted, no matter what the Coast Guard has done--
Kenneth Steven Geller: That's right.
Sandra Day O'Connor: --or hasn't done.
Kenneth Steven Geller: Because I think that section 43... section 4306 enacts a general preemption rule that says no State can impose a requirement for associated equipment. Now, there are--
Sandra Day O'Connor: So if the Coast Guard had never even studied the problem, nothing had been done--
Kenneth Steven Geller: --Absolutely. For the purposes of--
Sandra Day O'Connor: --you take the position it's still preempted.
Kenneth Steven Geller: --Yes, for purposes of our express preemption. Now, here we have a very powerful implied preemption argument as well, which I'll get to in a minute, Justice O'Connor, because the Coast Guard did do a thorough study, but that's right, and this is, of course, the way the Coast Guard has interpreted this statute over the years.
Stephen G. Breyer: What sense would that make? I mean, you bring me along a lot when you say, unless we read the word requirement to include tort action--
Kenneth Steven Geller: Yes.
Stephen G. Breyer: --then you would have a Coast Guard explicit rule and a State could have a tort case that would force the opposite. That would make no sense. I accept that--
Kenneth Steven Geller: That would make no sense.
Stephen G. Breyer: --at least for argument. But doesn't it also make no sense to say, if the Coast Guard doesn't do anything, does nothing whatsoever, that then you couldn't have any State tort law in the area?
Kenneth Steven Geller: You couldn't have any--
Stephen G. Breyer: I mean, I can understand why Congress might have said, if the Coast Guard does nothing at all, still the States aren't supposed to sit there and write rules out on a piece of paper, but I just can't understand why Congress would have said, if the Congress does nothing at all, all of State tort law goes up in smoke.
Kenneth Steven Geller: --Not all of State tort... I think the breadth of this argument has been grossly overstated, Justice Breyer. The States have a large role to play under the Boat Safety Act, but in terms of boat safe use and operation, boater education, boat numbering, tort law can apply in case of manufacturing defects involving boats, and--
Stephen G. Breyer: No, no, but why would Congress have wanted to--
Kenneth Steven Geller: --Yes, and--
Stephen G. Breyer: --say that no State tort law for the basic hornbook classic negligence--
Kenneth Steven Geller: --Of design. Design.
Stephen G. Breyer: --of design, any of that stuff when the Coast Guard does nothing.
Kenneth Steven Geller: Because, as Congress said... as Congress said, there has to be a uniform national rule for design requirements. You can't build a boat, one boat for South Carolina and another boat for Georgia, and that's precisely--
Anthony M. Kennedy: Well, I take it... I take it that an additional answer to Justice Breyer... maybe you don't want... is that this didn't prempt all State tort law automatically because the Coast Guard could and, in fact, did leave much of it in place, and in the States.
Kenneth Steven Geller: --Absolutely. In fact, I want to turn--
Anthony M. Kennedy: Under 430... 05.
Kenneth Steven Geller: --4305. 4305, Justice Kennedy. That's exactly right. I think if you look at section 4306, which I keep wanting to bring the Court back to because that's the issue in this case, is how to interpret that provision, there are a number of exceptions that Congress has written into the preemption provision. There's a general preemption provision of State design requirements for the reasons I gave, that there has to be uniformity in design requirements. You can't have... you have to have a single national rule, which is precisely what the Senate report says. It assures that manufacturers will not have to worry about compliance with widely varying local requirements. And then there are three exceptions to narrow it in section 4306. First of all, as Justice Kennedy said, the Coast Guard can draft an exemption to allow States to have a rule involving design of boats. Second, even when the Coast Guard hasn't granted an exemption--
William H. Rehnquist: Are we talking about 4306 or 4305?
Kenneth Steven Geller: --Yes, 4306. 4305 allows the Coast Guard to grant the exemption, but it's... 4306 says that there's a general preemption of State requirements involving the design and equipment of boats, but the Coast Guard can grant an exemption to the States. Secondly, the States can operate... their State law can operate to meet some uniquely hazardous local condition, and third, the States are allowed to enforce their law about the design of boats to the extent that it is identical to a regulation promulgated by the Coast Guard, and the scheme of this is obvious. The Coast Guard is supposed to promulgate the rules that tell manufacturers what they have to do in order to build a boat, a recreational boat in interstate commerce, and the States can enforce... if the State law is identical to it, the States can participate in the enforcement. So if a boat is built out of compliance with Federal design requirements, there can be a State law remedy, but the States can't add to the requirement. So that they... so that here, for example, you know, you could have a State requirement that has... that it requires that boats be built with propeller guards. That would be a requirement only for one State. It would dictate the national rule and, if a State had a contrary rule, you couldn't sell a boat in interstate commerce, because one State could say you had to have one type of requirement, another State could say you have to have another. The idea of this was to have a uniform national rule, and as... the Court actually confronted a case almost precisely like this 20 years ago, Ray v. Atlantic Richfield. That was a case in which Congress passed a statute that promulgated... that authorized the Coast Guard to promulgate design requirements for tankers, and the Coast Guard in fact did. It promulgated a long list of design requirements for tankers, and then the State of Washington came in and passed a statute that said, if you want to operate in Puget Sound, you also have to follow the following three additional design requirements. You have to have double hulls, you have to have two radar, working radar, and this Court held that that statute was preempted. It was preempted actually in the absence of an express preemption provision. But the reason the Court gave is... applies here like a glove. The Court said, enforcement of these State requirements would frustrate what seems to us to be the evident congressional intent to establish a uniform Federal regime controlling the design of oil tankers. This is 435 U.S. at page 151. It's precisely the same thing here. In fact, here there's even more evidence that that's what Congress wanted to do, because there's an express preemption provision that says that that's what they're trying to do.
Sandra Day O'Connor: Well, but you also have the savings clause, 4311, and--
Kenneth Steven Geller: Yes. Let's talk about the savings clause.
Sandra Day O'Connor: --its reference to common law and State law cuts the other way, I--
Kenneth Steven Geller: I don't think a fair reading of the savings clause cuts the other way, Justice O'Connor, but let's look at that as well. This is on page 2 of the red brief. What it literally says... what it literally says is that compliance with a Federal regulation or order does not relieve a person from liability at common law or under State law, and the legislative history uses almost the exact same language to describe what Congress was trying to do here. What Congress was trying to do here, quite specifically, and it says it literally, is that in those areas where State law still has a role to play, areas that are not preempted, it is not a defense to that State law claim that you've complied with the Federal regulation. That's precisely what this says, and that's all that this says. It says nothing about preemption, and if it were truly a savings clause intended to create a gaping hole in section 4306, you'd think it would have been put in section 4306.
Antonin Scalia: --What does it apply to? Give me a few examples.
Kenneth Steven Geller: One example might be, Justice Scalia, if a State had a design requirement that was not preempted because it was intended to deal with uniquely hazardous local conditions. That's not preempted under section 4306. Or the State may have a design--
David H. Souter: Yes, but by the same token you don't need a savings clause.
Kenneth Steven Geller: --You need a savings clause, Justice Souter, for fear that the... that it might be perceived under State law that it's a complete defense that you've complied with the Federal regulation.
David H. Souter: Yes, but that would be a bizarre reading of the preemption clause. I don't think you really need it for that. Do you have any other examples?
Kenneth Steven Geller: Yes. Well, I think actually, Justice Scalia, that's precisely what the legislative history again says this was trying to do, because when it discusses the savings clause, which I should say was added at the last minute--
Antonin Scalia: You're talking to me? [Laughter]
Kenneth Steven Geller: --I'm talking to the Court. But it does explain what this... what 4311(g) is intended to do. It says, of course, in describing 4311(g) and the reason they put it in, of course, depending on the rules of evidence of the particular judicial forum, such compliance... in other words, compliance with Federal regulations... may or may not be admissible for its evidentiary value. In other words, they couldn't possibly have been talking about Federal preemption here. They were talking about State rules, and contrary--
Anthony M. Kennedy: What would happen in a case that... let's assume that there is fairly clear preemption. The Coast Guard says, no propeller guards, and this boat has no propeller guards, and the accident happened. Could the plaintiff sue for failure to warn?
Kenneth Steven Geller: --I think that that claim would... the failure to warn about the absence of propeller guards?
Anthony M. Kennedy: About the absence, yes.
Kenneth Steven Geller: I think... I think that would probably be preempted as well because of the effect it would have on manufacturers to build their boats to... in other words, the failure to warn would have to warn about some dangerous, perhaps defective condition that--
Anthony M. Kennedy: I looked at the complaint briefly. I didn't see a failure to warn--
Kenneth Steven Geller: --There isn't a failure to warn claim in this case--
Anthony M. Kennedy: --allegation here.
Kenneth Steven Geller: --and it's an interesting question. I'm not sure that I know the right answer, but I think the argument would be that if you allowed failure to warn claims in that situation it would impose pressure on manufacturers to put on the device that would eliminate the need to make the warning, and that would be a--
Anthony M. Kennedy: Oh, no. It would just... it would make them warn. It would make them put labels on.
Kenneth Steven Geller: --There are warning requirements in the act as well, Federal warning requirements, and it may be that those would preempt a State warning requirement, but that's not what we have here. This is a pure design requirement. They're saying this boat is defective because it didn't have a propeller guard, and what I'm saying is that section 4306 addresses that question precisely and says that the... what equipment a boat operating in interstate commerce should have is a question reserved to the Coast Guard.
William H. Rehnquist: Well, Mr. Geller, it's... you say that a propeller is regarded as associated equipment for the board--
Kenneth Steven Geller: Yes.
William H. Rehnquist: --for the boat?
Kenneth Steven Geller: Yes.
William H. Rehnquist: It's not a part of the boat itself.
Kenneth Steven Geller: It's defined in Coast Guard regulations as associated equipment.
William H. Rehnquist: So there's a little bit different language about associated equipment than there is for the vessel itself, isn't there? One says, imposing a requirement for associated equipment, and for the boat it says, enforce a law or regulation establishing performance or other safety standard.
Kenneth Steven Geller: Right, and we are relying... this case involves the section of 4306 that talks about imposing a equipment for associated--
William H. Rehnquist: A requirement.
Kenneth Steven Geller: --A requirement for associated equipment, that's right.
Antonin Scalia: Mr. Geller, can I come back and ask you for another example of how the savings clause would apply State law, other than a State law that had been exempted under 4305?
Kenneth Steven Geller: There are many types... first of all, I'm not sure that Congress necessarily had in mind a specific situation. They were told--
Antonin Scalia: I don't need many. Just give me a couple.
Kenneth Steven Geller: --Yes. Any case in which State law has a role to play. There could be a tort claim that the boat was defectively manufactured because something was done in a particular way and the--
Antonin Scalia: But--
Kenneth Steven Geller: --suggestion is that you shouldn't allow the preemption provision to be broadened beyond Congress' intent by allowing the defense to argue that mere compliance... mere compliance with the Federal regulations is a defense under State law.
Antonin Scalia: --But unless the defective manufacture claim dealt with the manufacture of the propeller--
Kenneth Steven Geller: Yes. I mean, it could have. It could have. I mean, in other words--
Antonin Scalia: --It seems to me it would be preempted anyway. I just don't see any realistic situation in which the savings clause would apply, other than when there's been an exemption, which I don't find--
Kenneth Steven Geller: --Well--
Antonin Scalia: --terribly persuasive.
Kenneth Steven Geller: --That's one example, but you have to remember, Justice Scalia, this was added at the last minute. This was not part of the original bill. It was stuck in at the Senate committee level at the last minute because someone suggested there might be a problem here, let's put this in, but--
John Paul Stevens: Mr.... finish your answer. I'm sorry.
Kenneth Steven Geller: --But the other key point... I mean, I think the Achille's heel of the plaintiffs' and any attempt to rely on section 4311(g) is that it doesn't distinguish at all between common law and State law. I think the Court would have to commit an unnatural act with that language to draw a distinction between the common law and State law for purposes of preemption, and if... and if it saved all State law, which is the only logical reading of it, if it saves common law claims, if it saves State law claims there's no preemption at all. It eliminates completely section 4306.
John Paul Stevens: I want to be sure... I thought you made an acknowledgement of a point I didn't think you would make. You suggested in answer to Justice Scalia that there could be a State law defective manufacture claim even if the Coast Guard had promulgated elaborate regulations about how boats had to be manufactured and the boat complied with every one of those regulations.
Kenneth Steven Geller: Yes.
John Paul Stevens: There could still be a State law claim?
Kenneth Steven Geller: There could be a claim... there could well be a State law claim because we would not be within State 4306, that the boat was not manufactured according to its design requirements.
John Paul Stevens: No, I'm assuming it complied with the... because it only talks about when they comply with all the Federal requirements. You think there still could be a--
Kenneth Steven Geller: Yes, but there aren't manufacturing requirements.
John Paul Stevens: --No, but I'm assuming they... of course, they could have a problem here, of course.
Kenneth Steven Geller: Yes. In other words, if, for example, the Coast Guard had a propeller... had a propeller guard requirement--
John Paul Stevens: Right.
Kenneth Steven Geller: --and you complied fully with... you put the propeller guard on your boat, so you satisfied the design requirements, but you didn't fasten it properly. It should have been fastened with four bolts and you only put two on, and it fell off in the water, there would be, I think, a plausible--
John Paul Stevens: Even if--
Kenneth Steven Geller: --failure to manufacture--
John Paul Stevens: --Assuming that the Coast Guard regulation didn't tell you how many bolts to put on.
Kenneth Steven Geller: --Right.
John Paul Stevens: Is that right?
Kenneth Steven Geller: Right. But you see, the... Justice Stevens, the precise difference between that hypothetical--
John Paul Stevens: It seems to me there's a bigger gap in this case than the one you--
Kenneth Steven Geller: --A failure to manufacture claim only requires the manufacturer to comply with his own or the Coast Guard's design requirements. It doesn't add any design requirements. The problem with allowing the States to impose design requirements--
John Paul Stevens: --But if that's true in regard to a minor matter like nuts and bolts, why isn't it true with regard to the total omission of any requirement for propeller guards?
Kenneth Steven Geller: --Because how the boat is to be designed and what equipment the boat is to have on it is a question reserved to the Coast Guard or else you can't have a uniform national rule.
John Paul Stevens: Well, but that's the same... true with the four bolts instead of two.
Kenneth Steven Geller: No. No, I don't think so, Your Honor, because there would be a uniform national rule. You have to build your boat consistent with the design requirements. Now, if in a particular case you don't--
John Paul Stevens: No, but the omission is, there's no requirement on the number of bolts. In this case, there's no requirement on propeller guards.
Kenneth Steven Geller: --No, but in one case you're simply being asked to comply with your own design requirements. If your own design requirement says it should have four bolts, you have to have four bolts. If you only put two in, it's a manufacturing defect. That's a clear claim that can be brought under State law. We have a completely different type of claim in this case. They're claiming it should have been designed differently.
Stephen G. Breyer: The statute says performance standard. It doesn't talk about design.
Kenneth Steven Geller: Right.
Stephen G. Breyer: So therefore, if the failure to have... it's the same question. If the failure to have a performance standard permits, in your view, a tort suit in respect to the defective manufacture, why doesn't the failure to have a propeller guard standard permit a tort suit in respect to the failure to have the propeller guard? I think that's what Justice Stevens'--
Kenneth Steven Geller: I thought Justice Stevens was referring to a manufacturing defect, a failure to comply with your own design requirements or the Coast Guard's design requirements. There's a single set of design requirements. You have to comply with it, and if you don't, you're liable as a manufacturer for having a manufacturing defect. That doesn't prevent you from manufacturing one type of boat throughout the United States. When you're dealing with a design requirement where each State can impose its own design requirement, it is impossible to build a single boat that operates throughout the United States, and that's precisely what the legislative history said Congress had in mind and wanted uniform national design and equipment requirements. Manufacturing requirements are of a totally different order. You simply screwed up with one particular boat. It doesn't tell you anything at all about how you have to build the generality of your boats. Now, I just want to turn for a minute to implied preemption, which provides a separate and totally independent basis for preemption here. The... even if the... even if 4306 didn't cover this situation, it's clear that it would... the State law claim here would be impliedly preempted, because it plainly frustrates what Congress and the Coast Guard were trying to do in this area. I don't know of any piece of equipment that's been more thoroughly studied by the Coast Guard than prop guards, and the advisory committee and the Subcommittee on Prop Guards took 18 months, they looked at all the available data, they took a boat out onto Boston Harbor and operated it both with and without prop guards, they held hearings across the country--
Ruth Bader Ginsburg: --Mr. Geller, do we give any credence to the fact that the Coast Guard itself doesn't think that this is contrary to what it's intending to do. In fact, it thinks it's consistent with the act.
Kenneth Steven Geller: --Well, I don't know, Justice Ginsburg. That's the position of the Solicitor General. The Coast... I find it interesting, the Department of Transportation did not sign this brief, which is not typical of its practice. It's signed other briefs in this Court in cases like Myrick in recent years, so I don't know what the position of the Coast Guard is. The Coast Guard has clearly held that even in the absence of a Federal regulation there is preemption of State law.
Antonin Scalia: The Coast Guard isn't in charge of preemption anyway. The Coast Guard doesn't administer preemption. I mean, we give the Coast Guard deference on those matters that are within its bailiwick.
Kenneth Steven Geller: Yes. My point, Justice Scalia--
Antonin Scalia: Whether the State is preempted or not is not within the Coast Guard's bailiwick.
Kenneth Steven Geller: --All I'm saying, Justice Scalia, the answer to Justice Ginsburg's question is, I don't know of any pronouncement by the Coast Guard, ever, that has ever drawn a distinction between--
Ruth Bader Ginsburg: Well, maybe we should just leave the Coast Guard out of it.
Kenneth Steven Geller: --Well, the fact of the matter is that the Coast Guard has never-- [Laughter] And I think it's an important point. The Coast Guard has never, ever drawn a distinction between State, regulatory, statutory, or common law requirements, ever, and I think it would be inconsistent for the Coast Guard to do that, given the fact that common law requirements can frustrate what they're trying to do, as this case shows every bit as much as a State statutory or regulatory--
Anthony M. Kennedy: And I suppose some inquiry into that subject is within their purview, because they can pronounce regulations exempting--
Kenneth Steven Geller: --Right.
Anthony M. Kennedy: --certain State laws.
Kenneth Steven Geller: Right, and I don't know of any instance in which they have ever said, contrary, for example, to in Medtronic, where the FDA had a regulation that--
William H. Rehnquist: Thank you, Mr. Geller. Mr. Hudson, you have 4 minutes remaining.
David E. Hudson: In regard to the position of the Coast Guard, I think in footnote 2 of the blue brief the statement of the Commandant at the time the legislation was enacted is pretty compelling. Without any qualification, without any cramp reading, the Commandant understood that the usual tort law concerning negligence and warranties would survive the enactment of this law. It's consistent with the statement quoted on page 6 of the blue brief by the executive director of the Boatowners Association, who suggested a need for a provision in the law to make it clear that common law claims would survive.
Antonin Scalia: This is the statement of the Commandant before this legislation was on the books?
David E. Hudson: Yes, during the Senate committee hearings in response to a question from the committee.
Antonin Scalia: You consider that to be a position of the agency as to the meaning of the law?
David E. Hudson: Further evidence of the agency's position I think, Justice Scalia, is found in those 1971 and 1973 Federal Register provisions that are cited in all of the briefs where the Coast Guard specifically left in place all laws enacted by the States prior to 1971. It was talking about statutory enactments, even felt no need to even speak to the common law. If they're going to allow the State law enactments to stay in place, surely the common law survives as well and, in fact, I don't know that there's any recision of those 1971 exemptions from preemption. The claims we're making here, the Georgia wrongful death statute is over 100 years old, the negligence standard has existed for as long as the State of Georgia has existed, so the common law has never been a focus of the Coast Guard restriction, or any need to exempt from preemption common law claims. In regard to the case of Ray v. Atlantic Richfield, it does not fit this case. That was a situation where the Coast Guard was directed... the statute said it shall issue the regulations governing the size of tankers and other activities on the coast. The Coast Guard in fact enacted regulations. And if the State of Washington was able to put a limit on tanker sizes, contrary to what the Coast Guard had done, it would be the hypothetical Justice Breyer presented this morning. You would have a conflict, and under the Supremacy Clause, the State may not act contrary to any established regulation of the Coast Guard and in this case we don't have an established regulation. Finally, I would submit--
Antonin Scalia: You wouldn't necessarily have a conflict if they added something that the regulations didn't have, like a propeller guard. It wouldn't necessarily conflict any more than it does.
David E. Hudson: --I agree there would be no conflict, Justice Scalia. If we are able to prevail on a damage claim there would be no conflict. It seems to me, Your Honors, that for Brunswick to prevail and for preemption to exist in this case five very high hurdles have to be overcome. They must overcome the presumption against the displacement of State law. They must overcome the requirement that preemption be manifest and clear purpose of Congress. They must overcome the lack of any statutory or legislative history showing an intent to restrict the common law. They must overcome the common understanding of the words used in section 4306. Justice Stevens, in Cipollone you made a distinction between a preemption of requirements and in the Senate draft in the tobacco legislation they talked about a statute or regulation. That was changed to a requirement, and you pointed out one would be preempted and the other would not. And finally, they would have to overcome the express mention of the common law in the savings provision in this case. On the other hand, this is a preemption case, after all. The Federal agency with the authority to regulate agrees that common law claims should not be barred, or, indeed, there is no conflict between anything claimed in our lawsuit and any existing regulation of the Coast Guard and, if our claims are successful, we will only enhance the ultimate goal of the Boat Safety Act, which was to improve safety for people using boats. Thank you, Your Honors.
William H. Rehnquist: Thank you, Mr. Hudson. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.