Sprietsma v. Mercury Marine - Oral Argument

Argument of Leslie A. Brueckner

Chief Justice Rehnquist: We'll hear argument next in No. 01-706, Rex Sprietsma v. Mercury Marine.

Ms. Brueckner.

Mr. Brueckner: Mr. Chief Justice, and may it please the Court:

The question presented in this case is whether State common law tort claims that a boat engine was defective because it lacked a propeller guard are preempted either by the Boat Safety Act of 1971 or by an unpublished Coast Guard letter stating that the agency had decided not to take any regulatory action with respect to propeller guards.

There is no express preemption here because the Boat Safety Act includes a savings clause that expressly preserves the availability of common law claims.

And in light of this clause, this case boils down to the question of whether our claims are impliedly preempted because they conflict with some valid expression of Federal law.

And the answer to this question is no for two distinct reasons.

First, as the United States has argued, the Coast Guard letter itself lacks the force of law regardless of its content.

And second, even if the Coast Guard could preempt State law in this fashion, there's no preemption here because our claims are entirely consistent with the Coast Guard's stated reasons for not taking any regulatory action with respect to propeller guards.

Justice Kennedy: What would happen if there were no savings clause in this case?

Mr. Brueckner: If there were no savings clause, our position is that there would still be no express preemption because section 4306 of the Boat Safety Act, by its terms, in our view does not encompass common law claims.

But the savings clause--

Justice Kennedy: Well, except that... that this clause is different, say, than the one we had in Geier.

The Geier clause... savings clause begins... or preemption clause begins with the assumption that there is a regulation.

This begins the other way.

It says the State may not have any regulation unless it's consistent with an existing Federal regulation.

Mr. Brueckner: --That's true, Your Honor, but here, as in Geier, reading this preemption clause as encompassing common law claims would render the savings clause of this statute superfluous, and that is exactly the result that this Court rejected in Geier.

Justice Kennedy: Well, suppose a State said there can be a common law action in the courts of this State for the violation of any safety regulation which this legislature proposes, and we hereby direct that there be a propeller... a guard on every propeller.

Would that statute be valid under... under 4306?

Mr. Brueckner: In our view that statute would be valid because we read 4306 as not even preempting State positive law, that is, laws and regulations, unless there's an actual Coast Guard standard.

But this Court need not resolve that--

Justice Kennedy: But... but 4306 doesn't require a Coast Guard standard.

It... it says that there's a disability on the State legislature unless there is a Coast Guard standard and that State statute is parallel to it.

Mr. Brueckner: --Section 4306 in our view can be read... read two different ways.

One, our reading of the statute is that it only kicks in where the Coast Guard has regulated.

The United States disagrees on this point and reads 4306 as expressly preempting all forms of State positive law, that is, laws and regulations, even where the Coast Guard hasn't regulated.

But the United States and we agree that however you read 4306 with respect to State positive law, common law claims are preserved, and the reason is that 4311(g) would be stripped of any meaning if 4306 is read as encompassing common law claims.

Justice Breyer: Not... not when... I mean, that's why I think yours is the better view, actually.

But I mean, on your view you needn't drive a wedge between the common law and positive law because there's meaning for both.

Mr. Brueckner: Absolutely, Your Honor.

Justice Breyer: And I've never... I guess it's a better question for the Government.

I don't see why you'd want to drive a wedge between those two.

Justice Kennedy: Well, let's... let's take the Government's position which is that the State could not pass a statute on a... requiring a propeller... a propeller guard.

If... if that's true, if we accepted that, why is it that a jury should be able to require the same thing?

Mr. Brueckner: Because that is what Congress made clear in section 4311(g) that juries should be able to do.

Jury--

Justice Scalia: Ms. Brueckner, here's... here's my problem with 4311(g).

You can... it not only is a savings clause for common law, it's also a savings clause for State law.

It says it does not relieve a person from liability at common law or under State law.

Now, I... I do not know how an intelligent Congress could have... could have written such a thing.

But that's what it says: at common law or under State law.

Now, you can't read the savings clause portion that says under State law to mean all State law because then the savings clause would totally cancel the preemption clause.

Right?

Mr. Brueckner: --I agree, Justice Scalia.

Justice Scalia: So you... you have to limit State law to mean, well, not all State law.

And why... why would it not be natural to read common law also not to include all common law, for example, not including any common law that specifically imposes liability for failure to have certain propeller standards?

Mr. Brueckner: First, Your Honor, the fact that this savings clause is slightly broader than that at issue in Geier, because of the reference to State law, is not a reason to construe it narrowly.

Second, the reference to State law can easily be understood as a reference to, as the statute itself says, liability imposed under State law, which we read to mean a reference to State damages statutes such as wrongful death and survival.

And this case is a perfect illustration of that.

Chief Justice Rehnquist: Well, that really is a bit of a stretch, isn't it, to say you're talking... when you say State law, you're only talking about wrongfully tendered an act and that sort of thing?

Mr. Brueckner: I don't think so, Your Honor, because section 4311(g)'s language is... is quite clear and it is set forth at the blue brief at page 6.

Chief Justice Rehnquist: Well, to say it's quite clear... it does not relieve a person from liability at common law or under State law.

Whatever we may come up with as the meaning of that or you may suggest, I don't think you could say it's clear.

Mr. Brueckner: I disagree, Your Honor, because the reference to liability at common law or under State law to my mind suggests a reference to liability under State law, and liability under State law in this context is liability by which the measure of damages is a State statute, such as the wrongful death statute or the survival statute here that this complaint arises under.

Chief Justice Rehnquist: I guess you have a different meaning of clear than I do.

Mr. Brueckner: That... that may be, Your Honor.

I would note, however, that in... in Cipollone this Court noted that language exactly like this, a savings clause that specifically preserved liability at common law or... or under State law in the Comprehensive Smokeless Tobacco Act, preserved common law claims.

This is the same language.

And again--

Justice Breyer: Why do you need that?

I mean, I'm... I'm interested.

I might... why do you need that if, in fact, your interpretation of the preemption clause is correct?

There are some regs of the Coast Guard that do preempt positive common... common law and positive law, and some that don't.

And so the savings clause simply makes clear that those that don't, don't.

It gives meaning to it.

Mr. Brueckner: --You're absolutely right, Your Honor.

Justice Breyer: So you don't need this damages thing, do you?

Mr. Brueckner: No, we don't, Your Honor.

Justice Scalia: Well, no, but the savings clause says even those that do, don't.

Unknown Speaker: [Laughter]

Justice Scalia: I mean, isn't that the--

--No, it doesn't necessarily have to... the... the... I'm certain it's not clear to the contrary, but it's at least arguably to the contrary.

Mr. Brueckner: Even without the savings clause, we read section 4306 on its face as not encompassing common law claims, and the main reason why, putting aside the savings clause, is that the language of 4306 tracks the language of section 4302 of the statute, which is the affirmative delegation of rulemaking authority of the Coast Guard.

It's on the first page of the appendix to the blue brief.

And 4302 authorizes the Coast Guard to do two things: promulgate minimum safety standards and require associated equipment.

And this is exactly the same language that's in 4306.

Justice O'Connor: Well, this is the kind of thing that the Coast Guard could require, isn't it?

Propeller guard?

Mr. Brueckner: Absolutely, Your Honor, under--

Justice O'Connor: And in Arkansas Electric, I think we held that a Federal decision to forego regulation in a given area may imply an authoritative Federal determination that the area is best left unregulated and would have as much preemptive force as a decision to regulate.

Is that the situation here?

Certainly the Coast Guard looked at it and decided not to regulate.

Should we apply Arkansas Electric and say that's binding?

Mr. Brueckner: --No, Your Honor, and here is why.

This case really presents the question, putting aside the express preemption issue which we believe is resolved by Geier, of under what circumstances does an agency's affirmative decision not to regulate pack a preemptive punch such as... so as to wipe out common law claims.

And there are... there are two preconditions that must be met, neither of which is present here.

First, the agency's decision not to regulate must take the form that itself possesses the force of law, and that is lacking here for reasons I'll explain in a moment.

Second, the agency--

Justice O'Connor: That was the holding of Arkansas Electric; it doesn't have to take the form.

Mr. Brueckner: --Actually the holding of Arkansas Electric was that there was no preemption at all in that case, but perhaps Your Honor is--

Justice O'Connor: Yes, but the... the passage I read to you indicates that a decision not to regulate can, in fact, be... have preemptive effect.

Mr. Brueckner: --Yes, Your Honor, but a pure decision not to regulate or a pure agency inaction has only been held to exert preemptive effect in the context of statutes that preempt the field where there's total Federal occupation of the field.

Here, however you read 4306 with respect to State laws and regulations, common law claims we believe are excluded from the regulated field.

Therefore, there has to be a conflict.

And for affirmative... an affirmative agency decision not to regulate to preempt State law under a conflict preemption analysis, there both has to be an agency action that possesses the force of law and there has to be an actual conflict between the agency's underlying reasons for not regulating and the common law claims.

And both of these criteria are absent here.

First, as the United States has argued... and we agree... this unpublished letter... Coast Guard letter itself lacks the force of law.

It's important to remember here that not only is there no agency regulation, but there was never any rulemaking.

There was never any publication of a notice that the Coast Guard was even considering--

Justice Kennedy: Let... let me ask you this question.

Let's assume a... a hypothetical case in which the engine manufacturer is sued and is... and is found liable by the jury for having a propeller guard which makes the boat difficult to turn so the boat hits the dock.

It... it can't turn fast enough to avoid the dock.

We have that case and it's consolidated with yours.

So we have one case where they're liable for having the guard and another case where they're liable for not having the... the guard.

Would you argue the case the same way and would we have to affirm both cases?

Mr. Brueckner: --Yes, Your Honor, and... and Your Honor's hypothetical actually illustrates my point.

There's no question that a boat manufacturer could not be held liable for installing... could not be held... a... a claim alleging that a boat manufacturer was negligent per se for installing a propeller guard couldn't be based on an existing Coast Guard regulation because the letter lacks the force of law with respect to boat manufacturers.

There's no agency action here that could form the basis for any common law claim one way or the other.

Justice Kennedy: But... but if the manufacturer is subject to conflicting jury verdicts, as you indicate... I suppose we could change the hypothetical so we have two States, one which requires it, the other of which... and... and you would say those weren't preempted, either.

Mr. Brueckner: That's correct, Your Honor.

And... and this is--

Justice Kennedy: That seems to me to... to give very little effect to the wording of the clause which says that a State cannot have a standard unless it's parallel to a Federal statute.

Mr. Brueckner: --But it does give meaning to the language of section 4311(g) which says that even where a Coast Guard has promulgated a minimum safety standard, common law liability is preserved except to the extent that there's an actual conflict.

Justice Ginsburg: But you could... you could read that, couldn't you... you... you argue that to accept your... to respondent's view would mean the savings clause has no work to do, but the savings clause could still be for cases of negligent... negligent operation, for cases in... of negligent... negligence in manufacturing a piece of equipment.

So there... there would be... on any reading of this, there would be something saved.

So... so you... I think you have to modify your argument.

The savings clause would be nullified.

Mr. Brueckner: I respectfully disagree, Justice Ginsburg, and... and here's why.

The respondent here does contend that the savings clause applies to breach of warranty and negligent manufacturing claims.

And that argument fails, first of all, because such claims are not encompassed within 4306 on its face, and therefore there wouldn't have been any need for Congress to save those claims.

Secondly, this Court construed a similar savings clause in Geier as expressing Congress's intent that mere compliance with minimum safety standards would not be an absolute defense to liability in a product liability action.

And compliance with a Coast Guard regulation establishing a minimum safety standard could never be an absolute defense in a case involving negligent manufacture or a breach of warranty, for example.

So, the respondent's theory leaves really no meaningful role for the savings clause to play.

And I would emphasize that these arguments were all asked and answered in Geier, and the Court held that a similarly worded savings clause, albeit without the reference to State law, has to mean that common law claims are not expressly preempted.

Now, that doesn't mean that our claims must necessarily be permitted to go forward if they conflict with Federal law, but there's clearly no conflict here again for two reasons.

First, the Coast Guard letter lacks the force of law.

And on that point, before turning to the reasons why our claims are actually consistent with the Coast Guard's stated reasons for declining to regulate, I would further note that not only is there no regulation, no rulemaking here, but the Coast Guard letter was never even published in the Federal Register.

It was never made available to the public in any formal way whatsoever.

And it doesn't even purport to set forth a definitive agency position on the subject of propeller guards.

What the letter says is that the agency is going to continue to consider the matter and gather further data.

And so, this letter itself lacks the force of law.

The second reason, of course, is that even if the Coast Guard could preempt simply by writing a letter, our claims are not inconsistent with the Coast Guard's stated reasons for declining to regulate.

The Coast Guard was focusing on the lack of a universally acceptable propeller guard solution, the costs of a retrofit, and such other matters, and there's no inconsistency between our claims--

Unknown Speaker: What if the Coast Guard's reason had been we think putting the coast... putting a propeller guard on would make the... the vessel even more dangerous?

Mr. Brueckner: --There would still be no preemption here because the Coast Guard letter lacks the power to preempt.

Justice Stevens: Would that satisfy the second condition of... of your two-prong test?

Mr. Brueckner: It would, Your Honor, but our position is that there still has to be a regulation and there's no regulation here.

Justice Stevens: Well, I understand.

I'm just asking you about the second part of your test.

Mr. Brueckner: It would satisfy the second part of the test.

Finally, I'd like to reserve the remainder of my time for rebuttal, if I may, but I--

Argument of Malcolm L. Stewart

Chief Justice Rehnquist: Very well, Ms. Brueckner.

Mr. Stewart.

Mr. Stewart: Mr. Chief Justice, and may it please the Court:

The Coast Guard is the Federal agency charged with administration of the Boat Safety Act and with the promulgation of safety standards.

And to understand the Coast Guard's traditional view of these issues and the backdrop against which Congress legislated, it may be helpful to look to what the Coast Guard said at the time the Boat Safety Act was proposed.

And if you'll look to page 31 of the blue brief, this is the answer provided by the Commandant of the Coast Guard when he was asked, in written form, whether it was his view that compliance with Federal safety standards would furnish a complete defense to liability under common law or State law.

And he was further asked, if there wouldn't be a complete defense, should that be made explicit in the act.

And the Commandant said: we do not believe that compliance with promulgated standards under the act has the effect of relieving a manufacturer from liability under the usual tort law concerning negligence or warranties.

For many--

Chief Justice Rehnquist: Go ahead.

Mr. Stewart: --For many years the Coast Guard has required compliance with standards by inspected vessels.

Courts have consistently held that a vessel owner's compliance with Coast Guard inspection requirements is not synonymous with seaworthiness under maritime law.

Though the analogy is apparent, we would have no objection to an express provision to clarify that a manufacturer's compliance with promulgated standards does not by itself relieve him of any tort liability which otherwise could pertain.

And I think the--

Chief Justice Rehnquist: Is he... is the Commandant a lawyer?

Mr. Stewart: --I'm not sure whether the Commandant was a lawyer, but the... the questions were submitted to him in written form.

He was given time to consult with his advisors and prepare his answers.

Justice Kennedy: But the Commandant's lawyer or the Commandant might well admit that if, as Justice Ginsburg pointed out, there's defective design, if... if the propeller falls apart and... that then there's liability.

Mr. Stewart: I think... I think what--

Justice Kennedy: So that... this... this thing that you quote us just brings us right back to where we began.

Mr. Stewart: --Well, I think a couple of things are noteworthy about the way that the Commandant responded.

First, when he gave... first, he made clear that the Coast Guard was familiar and was comfortable with the idea that even when it had inspected a vessel and had... the... the vessel had passed the Coast Guard's own regulatory standards, nevertheless there was a... the possibility of damages liability based on unseaworthiness.

Justice Kennedy: Would--

Justice Scalia: --What do we care whether the Coast Guard was happy?

I mean, this isn't even plumbing the mind of Congress.

It's plumbing the mind of the Coast Guard.

What do we care?

Mr. Stewart: Well, I think part of the argument on the other side has been that whatever the text of the statute might say, the Court should strain to hold common law claims--

Justice Breyer: Well, maybe.

That may... but what I don't see here is whether he's aware of the fact which is... and I'm aware of it and you are... that whatever standard the Coast Guard has... let's say you have to have a 1-inch wire, and what my... they mean by that is you don't have to a 2-inch wire.

Okay?

Absolutely clear.

And there is no point in telling the State of Idaho you can't pass a law for a 2-inch wire when any jury in the State of Idaho can come in with a judgment that does precisely the same thing as that rule.

I mean, maybe this Coast Guard Commandant doesn't care about whether it can preempt at all, but it doesn't seem to me logical to take the position you can't have a regulation but you can have a tort judgment that is identical.

Mr. Stewart: --Well, first of all, the tort judgment is not identical because it fulfills an important purpose that the prescriptive standard doesn't, namely compensating people who have actually been injured by reason of defects.

Justice Breyer: You could say we don't care if, in fact, the rules that we're about to promulgate are totally ignored by the States, as long as the purpose is to compensate someone.

Mr. Stewart: Well, as this Court made clear in Geier, the effect of holding that State common law suits are not categorically preempted is not that the Federal judgments can be ignored; that is, there's still a role for principles of conflict preemption.

The Court in Geier said the point of the savings clause would be eviscerated if common law claims were... that were not identical to Federal standards were categorically preempted.

Nevertheless, particular common law claims can conflict with the... the text or purposes of particular regulations.

Justice Scalia: The Commandant didn't seem to understand that.

In... in your endorsement of the Commandant's statement, I thought you were disagreeing with... with counsel for the petitioners here who... who did say that there could be conflict preemption of common law claims, anyway.

The Commandant doesn't even seem to recognize that.

Mr. Stewart: I think what he is saying is we have always understood that compliance with our regulatory requirements will not furnish a categorical defense to suits at common law and we would understand the same--

Justice O'Connor: Well... well, maybe it ought to be interpreted, to try to make sense of this scheme, as certainly covering the situation where the State by its common law doctrine tries to make a requirement that the Coast Guard has... and the Federal Government has flatly contradicted by regulation.

That may not be this case, but if the Coast Guard were to pass a regulation saying no propeller guards should be put on boats because we think it is more dangerous, if they have them, now we should interpret the savings clause as not allowing a cause of action on that same ground.

Mr. Stewart: --That's exactly right and that's precisely the analysis that the Court went through in Geier and it's the analysis we urge the--

Justice Kennedy: But... but under your... your rationale, you say, oh, but there's a duty to compensate, and that's different.

Why doesn't that same argument apply so that you tell Justice O'Connor, oh, yes, the jury can... can go full speed ahead?

Mr. Stewart: --I mean, I think the Court has often pointed out in various contexts that even where it can be said that a primary goal of Congress was X, we shouldn't assume that Congress intended to pursue that goal at all costs.

The point is simply that Congress drew a somewhat different balance with respect to common law actions than it did with... with respect to prescriptive rules.

And I think part of the reason for that was that Congress was establishing a mechanism by which the Coast Guard could itself promulgate prescriptive safety standards.

In ousting State law, it was replacing State law with something else.

But the Boat Safety Act doesn't contain any mechanism by which an injured person can seek compensation for his injuries, and therefore it was natural for Congress to determine that subject to conflict preemption principles, the remedial mechanisms that had previously been available should continue to be available.

And I think--

Justice O'Connor: Well, maybe... maybe it doesn't do that much.

I mean, maybe the savings clause allows causes of action for breach of warranty, for negligent operation of the boat, and things like that.

Mr. Stewart: --I... well, the... the same could have been said of the savings clause in Geier, but the Court, nevertheless, concluded that common law actions were not categorically preempted.

And I think the reason, as Ms. Brueckner said, was that no one could have supposed that common law claims going to an entirely different aspect of the manufacturer's conduct than the divine, design feature that was at issue in... in the Coast Guard's regulatory--

Justice Breyer: I... I don't see how you... you talk about straining.

All... there is some... number of statutes.

They all read a little differently, but there isn't really that much substantive difference between them.

And although the Court has disagreed, I've tended to take the view, treat statutes and common law alike, and probably they're not preempted either unless the agency comes in and makes it pretty clear that they are.

Now, that's pretty easy for people to follow.

If they want to argue pro and con preemption, they go to the agency.

Mr. Stewart: --I think that may--

Justice Breyer: So wouldn't I reach that same position here?

Mr. Stewart: --That... that might be a legitimate rule to follow in the absence of statutory language expressly addressing the subject, but here we have one provision that says a State may not establish a law requirement of setting forth a safety standard or requirement for associated equipment unless it is identical to a Federal safety standard.

And then in the savings clause it says... and this is at page App. 6 of the blue brief... compliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law under State law.

So whatever that means, it has to mean there will be some circumstances under which the manufacturer complies with all applicable Federal rules and yet is nevertheless held liable under the common law.

And--

Justice Breyer: Very simple.

In those situations where you... as you just heard, the ones that the petitioner just argued for.

Justice Kennedy: Design defect.

Mr. Stewart: --But... but if... if the same rule of preemption were applied to common law suits as to prescriptive regulations, namely that the State couldn't do anything that was not identical to Federal law, it could never be the case that a manufacturer who complied with Federal law could, nevertheless, be held liable at common law.

The... the preemption clause and the savings clause, read together, compel the conclusion that Congress at least intended a different rule of preemption to apply.

Justice Kennedy: That's... that's not... that's not true.

The Coast Guard doesn't say how the... the propeller should be manufactured, out of a... an eighth of an inch or... or of a tenth of an inch blade.

And if the smaller blade falls apart, you can sue the manufacturer.

Mr. Stewart: But I... I don't think anyone would have contended that such a suit would be preempted by the preemption clause even in the absence of the savings clause.

And again, this is exactly the same situation that was before the Court in Geier.

Had... had that argument been a sound one, the Court would presumably have construed the... the Motor Vehicle Safety Act savings clause that was at issue there--

Justice Scalia: Geier didn't have the same clause, and I... I think it's a big difference when it says under common law or State law--

Mr. Stewart: --But it does refer--

Justice Scalia: --because you... you have to distinguish State... not just State common law, but State statutes.

You have to draw some line that is going to exclude State statutes as well as the common law.

Mr. Stewart: --Well, it does refer to... may I finish?

Chief Justice Rehnquist: Yes.

Mr. Stewart: It refers to liability under... at common law or under State law, and therefore State law is most naturally taken to be a reference to laws that accomplish purposes similar to those of the common law.

Argument of Stephen M. Shapiro

Chief Justice Rehnquist: Thank you, Mr. Stewart.

Mr. Shapiro, we'll hear from you.

Mr. Shapiro: Thank you, Mr. Chief Justice, and may it please the Court:

I think a word of history here explains some of the mystery surrounding the statutory language.

For over 90 years, Congress has specified the safety equipment that has to be installed on motorboats, and it was in 1937 that this Court ruled in Kelly v. Washington that the States may not impose their own requirements for safety equipment on boats that travel in interstate waters.

And that was the background of this legislation.

This act preempts State law creating any requirement for boat equipment that is not identical with the prescribed Coast Guard regulation.

And this serves a critical fail-safe purpose.

Risky devices like propeller guards may not be imposed on the public under State law unless and until they're approved by the expert regulatory agency under the criteria that Congress has laid down.

Now, this preemption provision has three exceptions which are written right into the provision, but none of those exceptions fits this case.

So my friends have to make the argument that this general savings clause, which says nothing about preemption, is another implicit exception, but that's inconsistent--

Justice O'Connor: Unless there's just no Federal regulation at all on this.

Mr. Shapiro: --And... and--

Justice O'Connor: Maybe the Federal Government has not... acting through the Coast Guard, has made no requirement, no decision at all.

Mr. Shapiro: --And the... the wisdom of this statute is that until the Coast Guard makes a decision about a device like propeller guards, they may not be imposed on the public.

Think of what happens under Justice Kennedy's example.

If Illinois commands installation of these devices and backs up that judgment with millions of dollars in damages, people in 49 other States are exposed to the risks and burdens of propeller guards.

Justice Scalia: Well, not necessarily.

I mean, you say if Illinois imposes it, I mean, this is one reason, it seems to me, that you can take the statute at... at its word.

The common law never imposes a requirement.

This jury found that a propeller... that failure to have a propeller guard was negligence.

Another jury in another case in the same State may find that the failure to have a propeller guard was not negligence.

There's no State requirement being imposed.

Mr. Shapiro: Well, we agree with the statement in Garmon that the Court, for preemption purposes, should assume compliance and then ask what are the implications.

The implications are that Illinois could coerce the installation of these devices.

Another State may disagree.

Justice Ginsburg: On the basis of one jury verdict?

Mr. Shapiro: Or one or--

Justice Ginsburg: It's like in tort actions in general.

I don't see how you get from one jury verdict, that that becomes the positive law of the State, that you must have a propeller guard.

Mr. Shapiro: --Well, after the first jury verdict, then the... in come the claims for punitive damages in the next case, and there is a powerful coercive effect from damage actions.

This Court has said so.

Justice Stevens: Mr. Shapiro, isn't it true that there all... aren't there... isn't it true there are all sorts of cases in which different designs of boats may have a... be more dangerous than other designs, depending on whether they have a propeller guard?

I notice that one of the allegations in the prayer for relief in the complaint was they provided an unreasonably dangerous design in utilizing an unprotected propeller.

That... as I read that, that wouldn't necessarily mean every boat needed a... a propeller guard, but rather some particularly dangerous designs might need one.

Mr. Shapiro: Well, what's--

Justice Stevens: So that you get some preemption and some not.

Mr. Shapiro: --The... what the safety council found, the Coast Guard's committee of 21 experts, was that for all boats that travel more than 10 miles an hour, these are infeasible devices.

And the reason is you have to match the propeller guard with the particular engine and the particular hull combination.

There are thousands and thousands of hulls out there.

Justice Ginsburg: But the... the Coast Guard itself didn't find anything.

It said we're not making the standard now.

As counsel for petitioner pointed out, there is no formal action.

There's just non-action by the Coast Guard.

Mr. Shapiro: Well, the... the Coast Guard said that the available accident data compiled by the 21 experts did not support a propeller guard requirement under the--

Justice Ginsburg: But they were still watching it.

They didn't make a... a determination that propeller guards are dangerous, therefore should not be used.

They said we're still keeping this under advisement.

Mr. Shapiro: --And in April of 2001, they looked at this again, and the Coast Guard representative on the safety council said we realize we cannot mandate installation of propeller guards.

They're not feasible, and the propeller guard subcommittee said again, these will increase blunt trauma injuries.

Justice Ginsburg: This is something that's published, that's... that's a formal kind of action?

Mr. Shapiro: Yes.

Yes, Your Honor.

It's... I believe it's footnote 14 in plaintiff's reply brief.

They... they cite to the web site for these council minutes.

Justice Souter: No, but did they... did they go through any, in effect, administrative procedure kind of formal action?

Mr. Shapiro: Well, but under this statute, that isn't necessary, Your Honor.

It... they... they did have--

Justice Souter: Well, it may be... it may not be necessary in the sense that they are under an obligation to do it, but if they don't do something like that, I... I don't know that their... their announcement has any particular status that's relevant here.

Mr. Shapiro: --Well, because of the wording of this statute, which is so different from Geier... it's the exact opposite of Geier... under this statute, unless there's an identical Coast Guard regulation in place, State law is preempted.

Justice Breyer: I don't see how it is so different from Geier.

I mean, you read it as saying if there's no regulation at all, no requirements, then the State couldn't have any tort law?

Mr. Shapiro: Well, as to equipment, associated equipment, for boats, unless there's a Coast Guard regulation in place, the States can't mandate that equipment.

Justice Breyer: All right.

Then you would say, for example... not just that, but in your view if you had, like a propeller that shot torpedoes, I mean, something that was absolutely absurd, you... the State would not be able to have a tort judgment based on that even though the Coast Guard has never had the chance to look into it?

Mr. Shapiro: Well--

Justice Breyer: Now, I mean, I grant you that's a possible reading.

But I think perhaps a better reading of it would be that you can't have a... a rule or a regulation or a tort judgment or any other requirement of law different from a Coast Guard requirement when there is a requirement.

Mr. Shapiro: --Your Honor--

Justice Breyer: But not when there isn't.

Mr. Shapiro: --Your Honor, we... we think that overlooks the history that I began with because under this Court's decisions, the States could not impose requirements for equipment or... or construction, design or structure for boats moving in interstate waters.

That was Kelly v. Washington, a unanimous opinion by Chief Justice Hughes.

Justice Ginsburg: But, Mr. Shapiro, in... in this very setting, the Coast Guard said, when this Boat Safety Act was new, States, until we get around to doing this, your law controls.

So there must have been some scope for State law regulating equipment that was there for the Coast Guard to say, it will take us time to get our regulations.

In the meantime, State law applies.

So there must have been some law to apply in the States.

Mr. Shapiro: Oh, yes, there... there are three exceptions to the preemption provision.

They're explicit exceptions, and we don't have to go looking to the savings clause for a fourth, implied exception.

There... there is an exception if the Coast Guard grants an exemption under APA procedures.

They didn't do that here.

There's another exemption for local hazardous conditions, but that exception doesn't fit here either.

Justice Ginsburg: But I'm talking about in the interim.

It's from... what was it... '71 to '73?

Mr. Shapiro: Yes, Your Honor.

Justice Ginsburg: The rules that applied were State rules because the Coast Guard said, States, your law controls while we haven't got any yet.

Mr. Shapiro: That's the key point, Your Honor.

That was done by formal exemption, and that shows that this statute has the exceptions built right into preemption provision.

Justice Ginsburg: But it shows that there must have been State law.

You... you... I thought you were saying it's been forever or for a very long time that only Federal law sets the standards.

Mr. Shapiro: Yes.

Justice Ginsburg: The Coast Guard must have thought there were standards in existence that could be applied.

Mr. Shapiro: What... what was happening, according to the legislative history, is the States were beginning to require battery covers, anchors, lines, and other pieces of associated equipment, including warning decals on the boats, and Congress says, this has to stop.

There's nothing wrong with these requirements, but we can't have 50 sets of them.

So this field is being preempted for associated equipment requirements until the Coast Guard adopts a regulation or the Coast Guard gives an exemption, which it did in 1971.

And I think the structure is very important.

This is so different from Geier.

There was not a structure like this with three exceptions written right into the statute, and to treat the savings clause, which doesn't say a word about preemption and which the legislative history says is simply a matter of State law defenses, as a fourth, implied exception to preemption truly does violence to the structure of this law.

Justice Ginsburg: Well, what do you--

Justice Scalia: --How do you treat the savings clause?

What... what do you think it means?

Mr. Shapiro: It does not address preemption at all.

It addresses an affirmative defense that it... that could be available under State law.

That's the defense of compliance with Coast Guard regulations or orders or any provision of this entire statute.

Now, section 288C of the Restatement of Torts... this is an echo of section 288C which was published just a few years before Congress passed the savings provision.

It doesn't deal with preemption at all.

It deals with... with compliance.

Justice Souter: Right.

To make this clear, would you identify the kinds of cases that you envision at State law that this clause, in effect, says you may not defend conclusively by claiming compliance with a Coast Guard reg?

What kinds of cases?

Mr. Shapiro: It has a huge scope of operation, unlike Geier.

To start with the Coast Guard's example, the ordinary negligence case, negligent operation was very important to Congress because most of these propeller accidents occur because of negligent operation or reckless operation of the boat.

That's what the Coast Guard says on its web site today.

And so the defendant couldn't defend by saying, gee, my boat complies with all the Coast Guard regulations--

Justice Souter: Okay.

No, no, I understand your point.

But you've got negligent operation and what... what else do you have in mind?

Mr. Shapiro: --The... the next thing the Coast Guard referred to is express warranty.

The defendant couldn't say simply because I've complied with this long list of Coast Guard requirements, I don't have to honor my contractual promises or--

Justice Souter: Okay.

How about negligent manufacture?

Mr. Shapiro: --Negligent installation is certainly covered, and defective manufacture is also protected by the savings clause.

That's when a particular unit comes off the assembly line and it's defective.

Those were the original tort cases--

Justice Kennedy: I... I suppose there would be some close cases.

Suppose there's two ways to make a propeller.

One is to have it slightly canted with a teflon cover and... and a gear mechanism that makes it stop the minute it hits a hard object.

The other is the cheaper way, to make it terribly sharp and no... no ability to stop.

Could the injured party sue the manufacturer of the second kind, the... the cheap, dangerous kind of propeller?

Mr. Shapiro: --It is possible and for this reason.

The language of the statute for associated equipment only preempts requirements for associated equipment.

And that could be construed to mean simply requirements to install propeller guards, which you've not installed.

Now, if you took a different interpretation of requirements for, it might encompass that case, but this Court could give a narrow construction to requirements for.

And this case is the paradigm case because manufacturers have decided not to use this kind of safety equipment because they know it's a hazard.

It's a known hazard.

Several courts have disapproved these devices.

21 safety experts of the Coast Guard have pointed out the dangers that this creates.

So manufacturers have consciously--

Justice Stevens: Mr. Shapiro, I'm not sure you answered my question before.

Again, supposing 90 percent of the boats really don't need a propeller guard, using the reasoning of the committee that decided not to recommend.

But there are 10 percent that are some exotic design that's particularly dangerous and they really are dangerous unless they have a... a propeller guard on them.

Could you say that... that 10 percent has to be treated like the 90 percent?

Mr. Shapiro: --Well, because the manufacturer doesn't know--

Justice Stevens: Well, it's the design.

I'm just talking about a particular design--

Mr. Shapiro: --Yes.

Justice Stevens: --that seems to be particularly hazardous if you had the propeller too close to the person operating the boat or something like that.

Mr. Shapiro: Well, the reason that's preempted and that that is a requirement for associated equipment, even in the case that you give, is because the manufacturer has no idea what hull is going to be put together with this motor.

The motor can move from hull to hull to hull.

And what the Coast Guard found... the... the committee found in its report was that you have to have an exact hydrodynamic fit between the particular engine and the particular hull and the particular propeller guard.

So if juries, say, impose propeller guards on... on designs we think are dangerous--

Justice Stevens: Yes, but what if the manufacturer of the propeller is on notice that it's being... was being purchased for a particularly dangerous design, as I've described?

It seems to me sometimes the... the company could know what kind of boats it's going on.

Mr. Shapiro: --Well, we... we rely on the logic of this committee report which says that... that for all planing boats that go 10 miles an hour or faster, these devices are counterproductive because they interfere with steering.

They double the amount of fuel that's consumed.

They increase air and water pollution and they create serious hazards of blunt trauma injury.

So what the... the committee found was that these devices for any category of planing boat... and here we have a boat that goes 50 miles an hour.

We've got an 18-foot ski boat with a 115 horsepower engine.

Justice Stevens: But you could... it seems to me as a matter of defense to tort liability, you could put all that evidence in, and say in this particular case, our design was sensible for the very reasons you just described.

Therefore, we're not negligent.

Mr. Shapiro: Well, that's true in many of these preemption cases, but all it takes is an errant jury verdict or two or three to coerce a decision by the manufacturer to install devices that are very hazardous to the public.

Justice Breyer: Then all you'd have to do is go to the Coast Guard and say, look what's happened, and then they'd be explicit, if you're right.

And the other side there would have a chance to argue to the Coast Guard that you're not right.

Mr. Shapiro: Justice Breyer, that's cold comfort.

They would hand us this brief that they've just submitted saying that it's up to the jury to decide whatever the jury wants.

Justice Breyer: Well, fine.

If that's the policy of the Coast Guard, then I don't see why you should rely upon them for preemption.

Mr. Shapiro: Well, because Congress had a different vision.

Congress was going with the rule of Kelly, Kelly against Washington.

Justice Ginsburg: Well, why did Congress then say minimum standards?

It didn't say the Coast Guard standards are necessarily adequate.

It just said, Coast Guard, set minimum standards.

Mr. Shapiro: Well, the legislative history is very explicit on that.

The boating associations and the manufacturers associations had all kinds of very elaborate standards of their own, and everybody said during these hearings that is to be encouraged.

We want them to do more of that.

The statute shouldn't stop that.

But there was no suggestion that the States could intervene and impose their own standards and their own requirements.

And in fact, in the Ray decision, this Court said minimum standards under another similar statute do not mean... do not mean that the States can embroider on and supplement those... those standards.

And after all, the preemption provision here doesn't say anything about minimum standards or maximum standards.

It says all requirements for boat safety equipment are preempted unless there is an identical Coast Guard regulation in place.

This is the rule of Kelly against Washington which--

Justice Stevens: Mr. Shapiro, do you cite Kelly against Washington in your brief?

Mr. Shapiro: --We did not.

Plaintiffs cited it in their brief.

It's 302 U.S. And I'll give the Court the cite.

I think it's critically important.

302 U.S. at 14 through 15.

Justice Stevens: It's critically important, but you didn't even cite it.

Mr. Shapiro: Well, it's quoted in the cases that we do cite.

It's quoted in the Ray decision.

It's a... it's an early precursor of Ray and in Locke.

I was explaining it as... as the background of Congress's legislation here.

And I'd like to suggest to the Court that it makes a huge difference here that this is a case that arises in the maritime context.

At a minimum, the maritime context means there is no presumption against preemption, as the court below held.

And because Congress wanted to achieve uniformity--

Justice Souter: Well, I mean, that may be true if you're talking about commercial boating, but it's not true of recreational boating.

Mr. Shapiro: --Oh, yes, it is.

We believe it is, Your Honor, because this Court--

Justice Souter: Little motorboats?

Mr. Shapiro: --Absolutely.

Justice Souter: 5-foot skiffs and little put-puts?

Mr. Shapiro: Since the '40s and the '50s, this Court, and later in Foremost and in Sisson, this Court has held that recreational boats fall squarely within the maritime jurisdiction.

Justice Kennedy: Even in New Hampshire?

Unknown Speaker: [Laughter]

Mr. Shapiro: I... there may be some carve-out for New Hampshire in this statute.

[Laughter]

And I've tried to figure out the reasons for that carve-out, and I've never... I've never understood those.

But this is maritime context, and this lake... the U.S. Court of Appeals for the Sixth Circuit has held that is... it's a navigable interstate body of water.

Justice Souter: Yes, because it... it happens to lie on the border between two States, but not every landlocked lake is subject to... to Coast Guard maritime jurisdiction.

Mr. Shapiro: Oh, absolutely not.

It has to be an interstate body of water.

But since the 1850s, this Court has held that interstate waterways are subject to the maritime jurisdiction.

And this waterway, by the way, was constructed by the U.S. Army Corps of Engineers.

It's surrounded with marinas that rent pleasure boats, and this is big business, the pleasure boating business, on Dale Hollow Lake.

And because this is a maritime context, that says a lot about the savings clause, because this Court has held that in maritime cases, savings clauses should be interpreted narrowly to avoid obstructing the carefully constructed preemption provision in the statute and to avoid making an end run around the Coast Guard's expert supervision, which is what Congress wanted.

And we go further and say that because the court below was right in characterizing this as an admiralty case, any conflict between Illinois law and Federal law is just imaginary.

That's because Federal common law follows Federal maritime jurisdiction, and there can't be--

Justice Ginsburg: But you didn't argue that.

I mean, in Illinois... all through the Illinois State courts, the assumption was that the... the law to be applied, if you could have a common law, would be Illinois common law, not some Federal maritime common law.

Mr. Shapiro: --Well, the Illinois Supreme Court agreed with us on this point.

They have two pages in their opinion--

Justice Ginsburg: They... all they said is that the... the preemptive force is different.

They did not say that Illinois common law was displaced.

That is, if there is State law to... if there is law other than the Coast Guard regulations to apply, it was Illinois State law all... all along.

And as far as I know, it wasn't until this Court that you raised the question, never mind State law, the Federal maritime law would control in any event.

Mr. Shapiro: --Well, we think this is an included question.

It was certainly addressed by the court below.

The court below cited this Court's Jensen decision, which is the leading maritime preemption decision.

And it was using maritime analysis to support the preemption holding that the court ultimately made.

Now, this was step number one in our preemption argument below, but we're entitled to elaborate it in this Court and cite additional cases.

Justice Ginsburg: Well, why was the argument that Illinois law is preempted, why was that at issue at all if, as you say, there is no State law in this area?

It's all Federal.

Mr. Shapiro: Well, we... we proceeded to argue in the alternative that under express preemption and under a conflict preemption that... that State law was preempted.

But with a two-page discussion in this opinion on maritime, I think it is an addressed and included question.

And if the Court doesn't consider--

Justice Ginsburg: Did you... in your... in the briefing of this case in the State court, did you make the argument Federal law covers the waterfront?

There is no State law to apply?

Mr. Shapiro: --We made the first part of the argument.

We said Federal law covers the waterfront because Congress conceived of this as a maritime question and was preempting State law broadly, exerting its traditional, under Kelly against Washington, the usual Federal Government role over equipment installed on motorboats.

And we said that this is an enclave of Federal law.

And we cited this Court's Yamaha decision and we cited the Foremost decision.

We cited admiralty cases and we said it was an admiralty case.

Justice Ginsburg: But Yamaha said that this is an open question, and it didn't resolve it.

Mr. Shapiro: Right, but our... my point is that we were citing this Court's admiralty decisions.

And then the Illinois Supreme Court went further and cited a host of additional admiralty decisions.

Now, when you have that kind of discussion in a State court opinion of a Federal law issue, this Court, I believe, can reach that as an included question and it's an intertwined question.

And let me suggest it is the easiest way to resolve and the narrowest way to resolve this case because it is propeller guard-specific.

It makes no aggressive law regarding tort claims on... on the land, and--

Justice Stevens: But, Mr. Shapiro, the Solicitor General disagrees with you on this point.

Mr. Shapiro: --The Solicitor General hasn't briefed this point, the maritime law point.

Justice Stevens: I... I thought his brief said he thought they're wrong on the presumption going the other way.

I'm pretty sure that's in his brief.

Mr. Shapiro: Well, I don't think--

Justice Stevens: Are you suggesting that if this action had been in Lake Geneva, Wisconsin, instead of where it was, you'd have a different result or you might have a different result?

Mr. Shapiro: --I think you'd have the same result, but you would have fewer reasons for reaching that same result.

Justice Stevens: The argument you're making now would not apply.

Mr. Shapiro: It would not apply.

It would apply to... to Lake Michigan but not to Lake Geneva.

Now, I'd like... like to return to Justice Kennedy's comment about the conflicting judgments among State courts.

If... if Illinois were to mandate propeller guards and back up the judgment with millions of dollars in damages, that would impose these devices on all the people in the United States, and at everybody's estimate, these are risky devices with serious problems.

And in the next case in another State, we would be sued for installing these devices.

The Walt Disney World was sued.

They put a little propeller guard on a bumper boat and they were sued when a kid's arm got caught in the propeller guard.

So sure as can be, if... if one State mandates them, the next State is going to penalize them.

And the legislatures of the State... this is the worst and most shocking aspect of this theory.

The legislatures of the States could not protect their citizens against--

Justice Ginsburg: I don't see that, Mr. Shapiro.

I don't know why the Illinois State legislature couldn't say that our State law is the Coast Guard's standards and nothing else.

A State legislature could see that this kind of result of a jury never happens again.

The State would be free to say precisely that whatever the Coast Guard includes is the law, and what they haven't included, it can't be required.

The State legislature could enact such a law.

I don't see why it couldn't.

Mr. Shapiro: --What it... what it could not enact is a law that says no boats coming into the State of Illinois or California may be equipped with propeller guards.

Why?

Because that's not identical with the Coast Guard regulation.

And yet, the juries in various States could be imposing these devices.

People could be losing their lives and boats--

Justice Ginsburg: Why couldn't a State legislature say, satisfaction of the minimum standards prescribed by the Coast Guard excludes any other liability for design defects?

Mr. Shapiro: --Well--

Justice Ginsburg: Why couldn't the State legislature say that?

Mr. Shapiro: --I think that that may well be a safety standard in disguise, but it... the State could not do the thing that it really had to do which was to prohibit boats using propeller guards.

If... if juries in various parts of the United States put pressure on manufacturers to put propeller guards on their boats, the legislature needs the power to say no, this can't come into the... can't come into the State.

But that is clearly preempted under the SG's interpretation of the statute.

And I think that is a true disservice to federalism, to have these kinds of conflicting judgments, and it shows the wisdom of Congress's architecture in this statute, that the States may not impose requirements for propeller guards unless and until the Coast Guard vets these proposals, finds that they're safe, finds that they satisfy Federal criteria of feasibility and safety, and adopts the rule and a regulation.

It's like FDA legislation, protect the public against common law claims of this sort that could have such serious adverse effects on the public.

Justice Breyer: Well, you... you say that... that in the situation you... where you have the conflicting jury verdicts, which I agree is a problem, you go to the Coast Guard and tell them that, and they just say, oh, that's too bad.

We don't care.

They might not say that, of course.

But... but if they did say that, that's why Congress insisted that you have this identical requirement.

That's your view.

Mr. Shapiro: Yes.

Justice Breyer: But suppose they do just refuse to have any requirement.

I mean, that's equally absurd to me.

On the one hand, you point to one absurdity one way, but it seems equally absurd to have no law in the area where the Coast Guard just refuses to act.

Mr. Shapiro: The... there's a good reason for refusing to act in this instance, and that is, these devices are very hazardous.

You can't turn the boat safely.

There's a danger of blunt trauma injury that is worse than the propeller slices.

A surgeon can slice up propeller slices occasionally, but the blunt trauma injury from a propeller guard is lethal if it hits you in the chest or in the head.

And it... it... the steering is interfered with.

You have to double the horsepower of these engines once you put a big bird cage around or a big circle around the propeller guard.

There... there are thousands of pounds per square inch of pressure exerted on these propeller guards, and they create a serious navigation hazard.

And it... it isn't just the committee that in 1990 concluded that these were dangerous.

These were 30 experts on safety appointed by the Secretary of Transportation that assigned all these dangers and feasibility problems.

And this is exactly, by the way, what seven courts have held who've looked on... at propeller guards on the merits.

They've held that these devices are not feasible and that they're dangerous.

There's not a single court in the United States that has said that these have to be installed.

And so, this is the problem, the real world problem, of having individual juries listen to those who lost before the administrative forum on propeller guards.

Okay, we're going to start all over again in the court system, and now we're going to get juries to start commanding installation of propeller guards.

There's a real world hazard, a danger for the public, and Congress has wisely drafted this statute to protect us and our children against that risk.

Now, these devices clearly raise policy concerns of nationwide significance and that's why the Coast Guard had to consider these issues in proceedings around the country that lasted for 18 months.

Many sectors of society are affected by these devices, and Congress just did not intend that individual juries were going to make these decisions for the whole country.

This would be extraterritorial regulation with a vengeance, just what this Court said in Locke should not be done under State law.

Now, my friend also has argued in the brief that safety is the goal of the Boat Safety Act, and that uniformity is just a secondary concern.

But Congress did pursue its safety agenda through a particular method, and that was uniform standards for marine equipment.

Congress wanted the whole Nation to benefit from safe and efficient standards, and it wanted the whole Nation to be protected against standards and requirements that represent risky experiments.

And that's just what propeller guards are.

And that's why the Coast Guard said in 1991 that these standards have to meet stringent Federal criteria before they're imposed.

And that does bring us back to congressional intent because when Congress passed this preemption provision, the States were starting to adopt requirements for battery covers and for warning placards on boats and for lines and anchors.

And Congress said, that's fine, but we can't have 50 sets of these requirements.

We've got to be uniform set of these requirements.

And it is untenable to conclude that although the harbor master at Belmont Harbor cannot compel the installation of propeller guards, the Circuit Court of Cook County is perfectly free to do that with a big threat of damages.

Both of these are exercises of Illinois law and they're both preempted.

We accordingly urge this Court to affirm the decision of the Illinois Supreme Court.

Rebuttal of Leslie A. Brueckner

Chief Justice Rehnquist: Thank you, Mr. Shapiro.

Ms. Brueckner, you have 3 minutes remaining.

Mr. Brueckner: Your Honor, the... the maritime argument was waived.

The reason the United States never briefed it is that respondents didn't even raise it in their opposition brief to this Court.

It was never raised until they filed their brief on the merits.

This is not the time or place to decide the issue raised by respondent, particularly the Yamaha question that was specifically left reserved in Justice Ginsburg's opinion.

On the savings clause, their whole argument is that the savings clause must be read simply to preserve breach of warranty and negligent installation claims.

Not only is this not supported by the language of the clause, which is itself broad, but the legislative history of the Boat Safety Act in the Senate report... let's forget about the Commandant for the time being.

The Senate report states... and I'm quoting from the blue brief at 32... that the purpose of this section to assure that in a product liability suit mere compliance with the minimum standards promulgated under the act will not be a complete defense to liability.

This demonstrates that Congress had in mind product liability actions just like this one.

Respondent also claims that these boats are... are terribly... that propeller guards are terribly hazardous and the Coast Guard has found this.

Well, first of all, the Coast Guard letter doesn't say anything about the hazards of propeller guards.

And contrary to Mr. Shapiro's contention, in April 2001, the Coast Guard's advisory committee issued... stated in its minutes a recommendation that the Coast Guard actually require propeller guards as one of four permitted options on boats exactly like this one.

This is... the cite is on page 11, footnote 14 of the yellow brief.

So not only did the Coast Guard not find in 1990 that propeller guards are hazardous, but it's considering requiring them on boats just like this one.

On the conflicting judgments point, Mr. Shapiro raises the specter of conflicting jury verdicts in these cases and Congress cannot possibly have intended that result.

That's exactly the result that Congress permitted in the context of motor vehicles where, absent a Federal safety standard, the States are... juries are permitted to impose whatever liability they choose.

And even where there's a minimum standard, under Geier, jury verdicts may be permitted to go forward.

But if... and indeed there are conflicting jury verdicts that arise, the Coast Guard can step into the breach, and as Justice Ginsburg suggested, State legislatures could pass a rule saying that no liability could be imposed in cases like this one.

I would also point out on this conflicting jury verdict problem that we are not seeking punitive damages in this case.

Punitive damages are not available in Illinois in a wrongful death action.

Finally, I would note that the absence of a regulation is itself reason to find no preemption here.

This statute, as we read it, provides that common law claims may be permitted to go forward unless there's a conflict.

Here there's no regulation.

There's no formal statement of agency purposes.

There's no articulated reasons that our claim could possibly conflict with.

And finally, at the end of the day, we have a victim here who would be left without any compensation whatsoever if this Court holds that common law claims are preempted.

We would urge this Court to permit our claims to proceed.

Thank you.

Chief Justice Rehnquist: Thank you, Ms. Brueckner.

The case is submitted.